Defense lawyers will argue during a hearing this week whether the conspiracy and related charges against their clients Graham Spanier, Tim Curley and Gary Schultz should be dismissed because of questions surrounding their representation at a grand jury proceeding by ex-university lawyer Cynthia Baldwin.
One of the central defenses for the three former Penn State administrators charged with covering up abuse allegations against Jerry Sandusky will take center stage during a pretrial hearing next week in Harrisburg in front of Dauphin County President Judge Todd A. Hoover.
Lawyers from both sides are being tight-lipped about the matters that will be raised during the hearing, which will start Tuesday and continue until as late as Friday. A spokesman for the state court system could only address the topic in general terms, because many of the matters are part of the secret grand jury process.
“The court will hear testimony, deemed relevant and admissible, on the issue of representation in related grand jury matters,” said the spokesman, Jim Koval.
The representation aspect all points to Baldwin, the former Penn State trustee-turned-general counsel, who listened as Spanier, Curley and Schultz testified to the grand jury that was investigating Sandusky.
Baldwin later testified against the three men to the grand jury, and her testimony was used to bring charges in November 2012 against Spanier and a fresh round of charges against Curley and Schultz. The latter two had been indicted two years ago based on what prosecutors said were lies the university officials told the grand jury.
The defendants’ lawyers have argued in written court motions that Baldwin’s involvement was illegal and, as a result, the charges against their clients must be thrown out.
One of the disagreements is over whom Baldwin was representing at the grand jury proceedings.
Baldwin accompanied Curley and Schultz for their appearance at the grand jury in January 2011 and went with Spanier a few months later for his turn.
The three men thought Baldwin was representing them, the lawyers have maintained, though Baldwin’s lawyer has said she was there to represent the interests of Penn State. A transcript from Curley’s and Schultz’s testimony raises questions:
A prosecutor at the grand jury said Curley and Schultz needed to be sworn in, and the supervising judge, Barry Feudale, asked: “Represented by?”
That’s when Baldwin answered: “My name is Cynthia Baldwin, general counsel for Pennsylvania State University.”
The judge responded: “Will you be providing representation for both of those identified witnesses?”
Baldwin answered this way: “Gary is retired but was employed by the university and Tim is still an employee.”
In previous written motions, the defense lawyers said Baldwin never informed their clients that she wasn’t representing them, and that if she wasn’t their lawyer, they were without an attorney to represent their best interests and advise them to invoke their Fifth Amendment right against self-incrimination.
Furthermore, the defense lawyers said, if Baldwin wasn’t the lawyer for either of the men, then her presence in the grand jury room violated the secrecy of the proceeding and that the charges should be thrown out.
According to the defense lawyers, Baldwin should’ve seen another red flag: During an interview with police before their testimonies, Baldwin heard Curley and Schultz give different recollections of the 2001 incident involving Sandusky, and the lawyers said she never voiced the conflict.
The defense lawyers accused Baldwin of violating attorney-client privilege when she later testified in front of the grand jury. According to the defense, Baldwin testified it was evident that Curley and Schultz “extensively discussed’ their grand jury testimonies with Spanier.
According to the presentment, Baldwin said Curley, Schultz and Spanier assured her that they knew of no information or documents involving alleged misconduct by Sandusky and that they didn’t find anything. That was what a subpoena wanted.
But, the defense lawyers have said, their clients never waived their attorney-client privilege, meaning that Baldwin was not authorized to disclose information that she had been told in private.
It’s not clear whether Baldwin will be called to testify at the hearing next week, as her lawyer, Charles De Monaco, did not respond to a message seeking comment last week.
In a previous motion, the defense lawyers for Curley and Schultz said they intended to call, at an evidentiary hearing that never happened, expert witnesses to testify in support of their positions on why Baldwin’s involvement was illegal.
The defense lawyers previously asked grand jury Judge Feudale to throw out the grand jury presentment that resulted from the testimony, but Feudale ruled he did not have jurisdiction to make a decision on that question.
The lawyers then unsuccessfully appealed to the state Supreme Court, but the court said they should ask the judge presiding over the criminal prosecution, Hoover.