On January 22, 2016, the defense team for three former Penn State University administrators, charged as part of the Jerry Sandusky/Penn State sex scandal, won their appeal in Superior Court. As a result, they are now fighting a far more limited set of charges and enjoying a victory in protecting their client’s’ confidential communications with former Penn State General Counsel Cynthia Baldwin. While the case against Sandusky moved quickly, the case against these former leaders of the University stalled thanks to a perfect storm created by Ms. Baldwin, the grand jury judge, and the prosecutor. Their missteps created complex defense issues relating to bedrock Sixth Amendment rights, including the right to attorney client privilege.
Since Ms. Baldwin violated defendant’s’ privilege when she testified in the grand jury against her former clients, the court dismissed all charges related to her testimony. These charges alleged perjury at the grand jury, obstruction of justice and conspiracy related to those counts.
The administrators were the top leadership of Penn State University: Graham Spanier, the former President of Penn State, represented by Philadelphia attorney Elizabeth Ainslie of the Schnader firm; Gary Schultz, the former Vice President of Finance and Business, represented by Pittsburgh attorney Thomas Farrell; and Timothy Curley, former Penn State Athletic Director, represented by Pittsburgh attorney, Caroline Roberto. Ms. Roberto, and this case, were previously highlighted in this blog here. (For another shining example of Ms. Roberto’s tenacity and advocacy, take a look at the case of Showers v. Beard, where Ms. Roberto overturned a murder conviction.)
The problem began with confusion about Ms. Baldwin’s role as the lawyer for both the university and the individuals. At the same time Ms. Baldwin was counseling each of the administrators about their grand jury testimony, she was complying with a subpoena on behalf of the University. Her dual role led the grand jury judge, with the prosecutor, but not the witnesses present, to ask Ms. Baldwin who she represented. She replied that she ONLY represented the University. Despite this assertion, Ms. Baldwin was then permitted to accompany each witness into the grand jury: no one explained to these witnesses that Ms. Baldwin did not represent them. In fact, throughout their testimony, she was permitted to counsel them. Later, the grand jury judge permitted Ms. Baldwin to testify about statements her clients made to her, statements that implicated them in allegedly obstructive behavior.
While the Superior Court heard the complex issues of in house counsel’s role representing “agents” as opposed to “individuals,” the grand jury rules themselves provided the defense team with an argument that held no escape for the prosecution: because state law prohibits anyone from being in the grand jury room except the prosecutor, the jurors, the witness, and the witness’ lawyer, if Ms. Baldwin was not present as their lawyer, then the witnesses were denied the right to counsel. But if she was there to represent them, she violated attorney-client privilege in her testimony. The court agreed. In dismissing the charges arising from her testimony, the court also precluded Ms. Baldwin from testifying at trial.
This case highlights the difficulties of protecting institutions when the individuals are not properly represented by separate counsel. After the Yates memo, hiring separate counsel early has become even more important. In this case, had separate counsel and in-house counsel been working together during the investigation, these issues would have not have arisen and the individuals as well as the University would have been better protected.
It also highlights the importance of the kind of tough and targeted defense advocacy that my fellow defense attorneys in Pennsylvania used here. We’re sure to see more of the same, as the case moves from its intermediate appellate stage to the Pennsylvania Supreme Court and possibly beyond.