Questions Surround Penn State GC's Role Before Grand Jury

Following the news that Penn State University general counsel Cynthia Baldwin was allowed into the grand jury proceedings of two former university administrators, whom she now claims she was not individually representing, several criminal defense attorneys posed the same question: how?

The answer to that question, along with what it means for the upcoming trials of former athletic director Tim Curley and former vice president of business and finance Gary Schultz, varied among legal observers. Both Schultz and Curley face charges of failure to report sex abuse and perjury, stemming from statements they made to grand jurors last year. According to their testimony to the grand jury, both Curley and Schultz thought Baldwin was their attorney at the hearings.

Baldwin has labeled the whole thing a misunderstanding, the Harrisburg Patriot-News first reported. Baldwin’s take on how everything unfolded came from Washington attorney Lanny Davis, who also represents Penn State and who Baldwin has authorized to speak on her behalf. Davis told the Patriot-News and The Legal that, when Baldwin told supervising judge Barry Feudale and representatives from the Office of the Attorney General in Feudale’s chambers that she represented the university, nobody objected to her listening to the administrators’ testimony.

Then, Davis told The Legal, when the administrators testified that Baldwin was their attorney, she did not think it was “appropriate” to interrupt the proceedings and clarify.

“It struck her as they are confused and it struck her as not appropriate to interrupt,” Davis said in an interview. “That’s the judgment she made, and it was a good-faith judgment not to interrupt the proceeding.”

Following the news, some sources interviewed by The Legal said the state’s grand jury law on rights of counsel is clear. Represent a witness, or wait outside, criminal defense lawyers said the law provides. Sources questioned whether Baldwin’s appearance was an indicator of Penn State’s influence over a massive sex-abuse scandal that, as prosecutors allege, both Schultz and Curley could have stopped but did not.

Philadelphia defense attorney Richard Q. Hark said it was “generally indicative of the power and sway” Penn State had over the proceedings.

“A corollary would be allowing an attorney for the Catholic Church to be present at grand jury proceedings against certain high-level priests that are the targets of, and testifying before, the grand jury and then being able to report back to the church,” Hark said.

But if Penn State ever wielded control over its exposure, that has since unraveled. The scandal, which hit firestorm status after the state charged former assistant coach Jerry Sandusky with 40 counts of sex abuse, has since led to the ouster of former President Graham Spanier, as well as the university’s most revered figure, former head football coach Joe Paterno. Paterno died last month.

Asked to respond to the questions raised by The Legal’s sources regarding Baldwin’s presence in the grand jury room, Davis said Baldwin would have been second-guessed had she interrupted to clarify her role or had she remained silent, as he said she did.

“If you’re asking me to respond to some expert quarreling with Cynthia Baldwin being in the room, tell them to take their case to the judge,” Davis said in an interview.

When contacted by The Legal, Feudale, the supervising judge, declined to comment on his impression of Baldwin’s role or how she gained access to the proceedings.
“The primary responsibility of the grand jury judge is to ensure secrecy,” Feudale told The Legal when asked about the apparent misunderstanding.

So why was Baldwin, an attorney representing Penn State—an interested third party—allowed inside?

“I don’t give interviews regarding grand jury proceedings,” he then said.

In two developments this week, Schultz and Curley filed motions asking the state to drop the charges against them. Curley, through his attorney, Caroline Roberto, argued in a motion to quash filed Monday that the story of key witness Mike McQueary could not be corroborated without the testimony of Paterno.

Schultz followed suit Tuesday, petitioning for a writ of habeas corpus on grounds that prosecutors cannot corroborate McQueary’s testimony. Schultz also argued that statements he made to the grand jury about his understanding of the story McQueary told him—that McQueary’s account was “not that serious” and did not amount to a crime—were patently ambiguous and warranted a dismissal of the perjury charge. Schultz, through his attorney Tom Farrell, further argued that his statements to the grand jury could not amount to perjury because they were his opinions, or “unschooled conclusions of law,” rather than a false assertion of fact.