Attorney-client privilege at heart of PSU criminal case

Gary Schultz, ex-Penn State vice president.
Gary Schultz, ex-Penn State vice president. (York Daily Record)
Posted: August 05, 2013

If Mike McQueary is to be believed, Penn State football coach Joe Paterno offered some damning advice as the Jerry Sandusky scandal threatened to consume both men in 2011.

"You need to make sure you have your lawyers," McQueary said Paterno told him. "Don't trust Cynthia Baldwin."

Baldwin, at the time, was general counsel for Pennsylvania State University. She has since emerged as a central, if lesser-known, player in the criminal cases against former president Graham B. Spanier, retired vice president Gary Schultz, and former athletic director Tim Curley.

The Paterno story from McQueary, the former Penn State assistant football coach who has said he saw Sandusky sexually assault a boy in a campus locker-room shower in 2001, came last week during his testimony at a preliminary hearing for the three former Penn State administrators. All will face trial on charges that they failed to act on allegations of child sexual abuse against Sandusky and that they lied to investigators. Lawyers for the three have said they are innocent.

Prosecutors are relying in part on testimony by Baldwin, who, as general counsel, was privy to meetings and conversations with Spanier, Curley, and Schultz concerning the Sandusky case.

Baldwin told grand jurors that, based on statements made by Spanier, she became convinced that Spanier had lied when he told grand jurors he knew very little about two prior abuse allegations lodged against Sandusky.

Baldwin, a former state Supreme Court justice and Penn State graduate, also told grand jurors that the three administrators tried to frustrate the state's investigation by withholding documents related to the Sandusky probe and by downplaying the scope of the probe to Penn State's trustees.

Lawyers for Spanier, Schultz, and Curley have asked that Baldwin's testimony be barred because she violated attorney-client privilege, something she denies.

"The charges brought against Dr. Spanier are based, in large part, on Ms. Baldwin's testimony before the grand jury as to privileged information and attorney work product," states the motion filed in November by Elizabeth Ainslie, Spanier's attorney.

Ainslie declined to comment for this article, but the debate over Baldwin's role is shaping up to be the next major legal battle in the case against Spanier, Schultz, and Curley, who are next scheduled to appear in court Sept. 20 to enter formal pleas. The trial may not take place until the spring.

'Untrue'

Baldwin's attorney, Charles De Monaco, said last week that his client has "the highest integrity."

"The suggestion by anyone that Ms. Baldwin did not fulfill her ethical and professional duties to the Pennsylvania State University and its agents and administrators is untrue," he said in a statement.

Baldwin, who has also served as a prosecutor in the Attorney General's Office, went to work for Penn State in 2010. In December that year, Penn State was subpoenaed for documents as part of the investigation into Sandusky. According to prosecutors, Spanier, Schultz, and Curley told Baldwin they had no such documents, despite the fact that Schultz had a file on him and that the three had exchanged e-mails about two alleged complaints about Sandusky's behavior.

Disputed testimony

In 2011, as investigators were assembling the Sandusky case, Spanier, Schultz, and Curley told a grand jury they had only limited knowledge of concerns that Sandusky had acted inappropriately with boys on campus.

Baldwin was present during the testimony given by all three men. Grand jury transcripts indicate that Schultz and Curley believed she was their attorney when they testified. In Spanier's April 2011 testimony, when he said she represented him, she did not contradict him.

Baldwin later disputed their testimony, telling a grand jury that Spanier was aware of details of the complaints about Sandusky.

A previous attorney for Baldwin has since said she was present during the defendants' grand jury testimony as a representative of the university, not the individuals. But they have maintained they believed she was acting as their lawyer.

Curley's lawyer, Caroline Roberto, declined to speculate as to how it could affect the case if a judge were to agree not to allow Baldwin's testimony as evidence, but said that, because of Baldwin, her client was denied the right to have a lawyer present when he spoke to the grand jury.

"His counsel, Cynthia Baldwin," Roberto said, "was laboring under a conflict of interest."


Contact Allison Steele at 610-313-8113 or asteele@phillynews.com.

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