Penn State waived the attorney-client privilege so former university lawyer Cynthia Baldwin could testify in 2012 to the grand jury that was investigating Jerry Sandusky and three ex-administrators accused of covering up for the longtime coach, according to documents that were unsealed this week.
The waiver was discussed during a 30-minute closed-door conference Oct. 22, 2012, that involved the judge supervising the grand jury, prosecutors, Baldwin’s lawyer and a university lawyer. The conference came days before Baldwin took the stand at the grand jury on Oct. 26.
In the conference, prosecutors said their intent was to not have Baldwin testify about the January 2011 grand jury appearances of the ex-administrators — former athletic director Tim Curley and retired vice president Gary Schultz — and what she did to prepare them for it.
Baldwin was in the grand jury room when Curley and Schultz testified, and her presence there has become the basis of defense lawyers’ arguments for a dismissal of some of the charges against their clients. The defense lawyers said their clients thought she was representing them, though Baldwin has said she was representing the university. The defense lawyers also have said that Baldwin later violated attorney-client privilege when she testified at the grand jury.
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A transcript of the Oct. 22, 2012, conference is among the documents that a Dauphin County judge unsealed Monday to consider for a larger issue of whether Baldwin’s role was illegal in any way and that the charges against Curley, Schultz and former Penn State president Graham Spanier should be dismissed.
The transcript was obtained by the Centre Daily Times.
At the conference, then-prosecutor Frank Fina told the judge that Penn State’s waiver focused on several issues: Sandusky, his relationship with the university and known conduct, and it included communications among the university, the grand jury and investigators looking into the Sandusky issues.
“All of those issues were opened to us to discuss with Miss Baldwin,” Fina told the judge, Barry Feudale.
A Penn State lawyer, Michael Mustokoff, and Baldwin’s lawyer, Charles De Monaco, were a part of the closed-door discussion and agreed with Fina’s assessment.
“The university believes that with regard to all aspects of former Justice Baldwin’s representation of the university, that is the university’s privilege,” Mustokoff said.
De Monaco and Fina said they received letters from the defense lawyers for Curley and Schultz asserting Baldwin’s attorney-client privilege with their clients. They disagreed with the defense lawyers’ assertion.
“I advised counsel that Justice Baldwin was counsel for and represented the interest of Penn State University and represented the interest of administrators of Penn State University in capacity as agents conducting university business so long as their interests were aligned with the university,” De Monaco said.
The judge said he was satisfied with the lawyers’ plans to have Baldwin’s grand jury testimony not include the Curley and Schultz testimony and preparation.
“I have no doubt that they will try and run the football in the middle with it, but I don’t think they should get anywhere with it,” Fina said.
Baldwin did end up testifying to the grand jury, and Fina stated that he was not going to ask Baldwin about the Curley and Schultz issues that had come under question.
Baldwin later went on to tell the grand jury about how she responded to a subpoena that requested documentation about Sandusky in early 2011. She testified that Curley and Schultz told her they didn’t have anything, though subsequently Schultz turned over files that he had on Sandusky, while other boxes of old Sandusky files that had been stored in the athletic department since his retirement were turned over by the university.