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Judges to decide legal issue in former Penn State administrators' criminal case

| Tuesday, Aug. 11, 2015, 2:53 p.m.

HARRISBURG — Lawyers for three former Penn State University administrators asked an appeals court Tuesday to throw out some or all charges against them, arguing their right to legal representation was violated during secret grand jury proceedings.

In a set of three arguments before a three-judge Superior Court panel, the defendants' attorneys said several problems with the process resulted in their clients being charged with covering up child sex abuse complaints about Jerry Sandusky, a former assistant football coach under Joe Paterno who is serving up to 60 years in prison.

Much of the discussion focused on the role played by Cynthia Baldwin, a McKeesport native and former Supreme Court justice who was Penn State's general counsel as the investigation heated up in 2011 and who advised the men during grand jury appearances.

Jeffrey Wall, attorney for former Penn State president Graham Spanier, argued that either Baldwin represented Spanier as an individual, raising attorney-client privilege issues, or she was advising him in his official capacity only, generating problems about his right as an individual to legal counsel.

“This appeal really is that simple,” Wall told the judges.

Judge Mary Jane Bowes questioned the sides about Baldwin's grand jury appearance in 2012, shortly before state prosecutors charged Spanier. The other two, former athletic director Tim Curley and former vice president Gary Schultz, were charged along with Sandusky in November 2011.

All three men are accused of perjury, obstruction, conspiracy, child endangerment and failure to report suspected abuse. Free on bail, none were in the courtroom.

Amy Zapp, representing the attorney general's office, said prosecutors do not believe the defendants are entitled to relief from the court. She noted that Baldwin's grand jury testimony was not used at the preliminary hearing.

Prosecutor Frank Fina assured the grand jury supervisory judge in 2012 that he would not delve into privileged communications among Baldwin and the administrators. But defense lawyers, citing the sealed case record, argued that Fina did just that.

Bowes asked Schultz attorney Tom Farrell whether lawyer-client privilege issues should have been worked out before that grand jury hearing.

“Yes, it would have, but Fina said he wouldn't go there,” Farrell replied.

Curley's lawyer, Caroline Roberto, said state law gives witnesses before a grand jury a right to legal counsel so people have protection from incriminating themselves.

“A lay person doesn't know how tricky it can be to determine what might be incriminating,” Roberto said.

The appeals follow a January order by Dauphin County Judge Todd Hoover that rejected defense attacks on the fairness and legality of the process.

Hoover ruled that Baldwin had represented the three as university employees and they were not denied the right to legal counsel.

He rejected claims about conflict of interest, violations of attorney-client privilege and allegations of prosecutorial misconduct.

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