Judge opts against testimony in Penn State case

HARRISBURG, Pa. - December 17, 2013

Dauphin County Judge Todd Hoover ruled that the defendants could not call to the stand Cynthia Baldwin, who accompanied the men to grand jury appearances in 2011 and then testified against them. Baldwin, a former state Supreme Court justice and university trustee, was Penn State's top lawyer at the time, and the defendants believe she violated attorney-client privilege.

Hoover told the lawyers to submit proposed findings of fact and legal conclusions, after which he will schedule a hearing so they can argue the issues. The judge also indicated he would unseal records in the case, but courthouse officials said afterward no new documents were immediately available.

Former president Graham Spanier, former vice president Gary Schultz and former athletic director Tim Curley are accused of covering up child sex-abuse complaints about former assistant football coach Jerry Sandusky. They face charges of perjury, obstruction, conspiracy, child endangerment and failure to properly report suspected child abuse.

The 20-minute proceeding had been scheduled to last four days, but there was a three-hour closed-door conference on Monday during which Hoover also quashed a subpoena issued to Frank Fina, a former state prosecutor who was involved in the grand jury proceedings.

Another subpoena, issued to former state prosecutor Jonelle Harter Eshbach, was quashed by Hoover on Tuesday. Defense lawyers listed the documents the judge will consider, including grand jury transcripts and correspondence among the attorneys.

Spanier attorney Elizabeth Ainslie told reporters afterward she was surprised by the brevity of the hearing.

"Until last week, we had been expecting an evidentiary hearing," Ainslie said.

The matter involves secret testimony before the investigative grand jury, and Hoover has not explicitly said precisely what issues are before him regarding Baldwin, but all three defendants have argued that they believed she was representing them. The issue of their legal representation, and her later testimony that was used to charge them, are the major reason why there is no trial date even though Curley and Schultz were arrested two years ago and Spanier was charged late last year.

"I was never notified that Ms. Baldwin was going to testify against Graham Spanier, and neither was he," Ainslie said, adding later that court records show Baldwin "says different things at different times about who she represented."

Baldwin's lawyer, Charles De Monaco, told reporters she was in town and available to testify if she had to, but Baldwin did not appear in the courtroom. De Monaco declined to comment on the proceedings.

A spokesman for the attorney general's office released a statement afterward saying prosecutors planned to make their case in court.

"We are pleased that Judge Hoover ruled in favor of the attorney general's decision that witness testimony was not necessary in today's proceeding, and that he will rule based solely on the existing record," said Joe Peters, press secretary for Attorney General Kathleen Kane.

Hoover confined interviews to a room in the courthouse, and lawyers for Curley and Schultz did not provide any comment about the hearing afterward.

Curley, Spanier and Schultz were among the university's senior administrators in 1998 and 2001, when complaints were lodged about Sandusky behaving inappropriately with children. Sandusky was convicted last year of 45 counts of child sexual abuse - including charges that relate to the 1998 and 2001 incidents - and is serving a decades-long state prison sentence. His request for state Supreme Court review of his conviction is pending.

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