Penn State defendants want to bar one-time counsel's testimony

| Wednesday, Nov. 21, 2012, 3:10 p.m.

HARRISBURG — A new defense filing argues that Penn State's former chief counsel should not be allowed to testify next month about what two former high-ranking administrators told her regarding the Jerry Sandusky child molestation scandal.

Attorneys for former athletic director Tim Curley and retired university vice president Gary Schultz asked a judge to prohibit testimony by Cynthia Baldwin of McKeesport — about what they describe as “privileged communications” — when the men face a preliminary hearing Dec. 13.

Baldwin's role was also the focus of pretrial motions filed three weeks ago by Curley and Schultz, shortly before prosecutors added new charges and criminal allegations against their onetime boss, former Penn State President Graham Spanier.

At issue is whether Baldwin, a former Allegheny County judge and state Supreme Court justice, was acting as their lawyer when the three men met with prosecutors and then testified before a grand jury about their actions in response to complaints that Sandusky had acted inappropriately with boys in school showers in 1998 and 2001.

Lawyers for Curley and Schultz wrote, in the document filed late Tuesday in Dauphin County court, that state law requires the judge “to exclude the testimony of Ms. Baldwin in criminal proceedings against her former clients, Curley and Schultz. In the absence of a waiver by the client, an attorney is barred from testifying, in a criminal matter, regarding statements that the client made to the attorney in confidence.”

The Attorney General's Office last week said it was not aware of any conflict of interest on Baldwin's part and therefore had no reason to raise the issue before the judge who supervised the secret grand jury. Prosecutors argued that representing multiple clients does not necessarily mean a lawyer has a conflict.

“Based on their interviews prior to testifying, it appeared that the defendants intended to cooperate in the investigation,” prosecutors wrote in a Nov. 14 filing. “That the defendants actually intended to mislead the grand jury and the commonwealth would not alter the fact that, at the time they were represented by attorney Baldwin, there was no conflict of interest.”

A spokesman for the Attorney General's Office declined to comment further.

Baldwin's lawyer, Charles DeMonaco, issued a statement this summer that said she “at all times fulfilled her obligations to the university and its agents.” DeMonaco said on Wednesday that he had not seen the request to preclude her testimony.

On Wednesday, the judge presiding over Sandusky's criminal case granted a television network's request for access to photos used as exhibits during his trial.

Judge John Cleland issued an order that gave ABC the right to get copies of 15 photographs related to Aaron Fisher, described as Victim 1 in court records.

ABC had sought the photos last month as it was preparing to report on Fisher's book about his experience, “Silent No More.”

Sandusky, a former Penn State assistant football coach, is serving a 30- to 60-year prison sentence for the sexual abuse of 10 boys.

Curley and Schultz are seeking to delay their January trial on charges of perjury and failure to report suspected child abuse. The December preliminary hearing involves the additional charges the two men face of conspiracy, obstruction and endangering a child's welfare.

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