Penn State defendants ask judge to dismiss counts
HARRISBURG, Pa. -- State prosecutors and lawyers for three former Penn State administrators accused of covering up sex abuse allegations filed lengthy documents on Wednesday about the role played by the university's former general counsel during the defendants' grand jury appearances.
Questions about whether the right to legal representation was violated, and if so, what the judge should do about it have complicated and delayed the criminal case against former university President Graham Spanier, retired Athletic Director Tim Curley and retired Vice President Gary Schultz.
Lawyers for Spanier requested that all charges be dismissed. Attorneys for Curley and Schultz asked that obstruction and conspiracy counts be thrown out and their grand jury testimony suppressed, effectively neutralizing perjury charges.
The state attorney general's office said matters related to the grand jury are no longer relevant because preliminary hearings have been conducted. Prosecutors also argued the defense offered no legal authority to have the charges dismissed and that all three men chose to have Penn State's then-general counsel, Cynthia Baldwin, represent them.
''The defendants appear to be of the view that, if they appear before a grand jury with conflicted or ineffective counsel, they have a `get out of jail free' card to play at a later date, including after the preliminary hearing,'' wrote Chief Deputy Attorney General James P. Baker. He said ''there simply is no basis in law for this assertion.''
Baldwin accompanied the three to grand jury appearances in early 2011, more than six months before the panel issued its report and prosecutors filed charges against Curley and Schultz, as well as child sexual abuse charges against retired assistant football coach Jerry Sandusky.
About a year later, additional charges were lodged against Curley and Schultz and Spanier was charged for the first time. All three now are charged with perjury, obstruction, conspiracy, child endangerment and failure to properly report suspected child abuse. Sandusky is serving a lengthy state prison sentence and is asking the state Supreme Court to review his 45-count conviction.
Dauphin County Judge Todd Hoover requested the filings after a 20-minute proceeding in mid-December. Although the latest filings by Curley and Schultz only address some of the charges, they have pending requests before Hoover to have their full cases thrown out as well.
''Unfortunately, it appears that the commonwealth takes an opportunistic view of grand jury secrecy and attorney-client privilege adjudication depending on what best serves its investigatory interests at the time,'' wrote Curley attorney Caroline Roberto. ''Such conduct is unacceptable in the Pennsylvania grand jury context.''
Spanier's lawyers said the ''deprivation of counsel'' they say occurred is much more substantial and harmful to him than in other cases where state courts have thrown out charges or suppressed grand jury testimony. They said prosecutorial misconduct occurred that requires the case to be thrown out.
''Knowing that Dr. Spanier was not merely a witness for the purposes of moving the Sandusky investigation along, (prosecutors) were nonetheless fully complicit in leading Dr. Spanier to believe he had legal representation, even though Ms. Baldwin had told them otherwise outside Dr. Spanier's presence,'' Spanier's lawyers wrote. ''Through this subterfuge, they obtained his uncounseled testimony.''
No trial date has been set in the case.