Can Cynthia Baldwin, the former general counsel of Penn State University, testify against two former Penn State officials in upcoming criminal proceedings?
Thats the question before a Dauphin County, Pennsylvania, judge as former PSU senior vice president Gary Schultz and athletic director Tim Curley, whos on leave from the university, prepare their defense against charges stemming from the Jerry Sandusky sexual abuse scandal.
Last week, attorneys for Curley and Schultz filed their second motion in a month related to Baldwins counsel and the cases being brought against them by the Pennsylvania Attorney General. This latest filing seeks to bar Baldwins testimony from a preliminary hearing scheduled for next month on new charges of conspiracy, endangering the welfare of children, and obstruction of justice.
Curley and Schultz have also faced charges of perjury and failure to report suspected child abuse since November 2011. They are scheduled for trial in January.
In the latest set of papers, filed last Tuesday, defense attorneys argue that testimony by Baldwin would violate Curley and Schultzs attorney-client privilege with the ex-GC, who left Penn State in June, having established the schools first in-house legal department in 2010.
Curley and Schultzs lawyers argue that Baldwin acted as their attorney during a grand jury investigation into allegations that Sandusky molested children on Penn States campus.
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 defense attorneys stated in the motion, according to the Associated Press.
The Harrisburg Patriot News reports that Baldwin is likely to be a key witness at the preliminary hearing, and has helped build the prosecution's allegations against Curley and Schultz.
Though just what role Baldwin played in the grand jury investigation has itself been an ongoing source of controversyparticularly since the release of a Penn State internal investigation last summer.
According to the Patriot News, which cited grand jury transcripts, both Curley and Schultz identified Baldwin as their legal counsel during their grand jury appearances in January 2011. But according to the Freeh Report, Baldwin has maintained that she represented the university during those appearancesand not Curley or Schultz.
Baldwin told the Special Investigative Counsel that she went to the Grand Jury appearances as the attorney for Penn State, and that she told both Curley and Schultz that she represented the University and that they could hire their own counsel if they wished, the report states.
The defense teams for Curley and Schultz have taken a different view. In a motion to dismiss the charges against the two men filed earlier this month, defense attorneys argued that Baldwins counsel to Curley and Schultz constituted a conflict of interest, and that they were deprived of their right to counsel.
Prosecutors countered in a November 14 filing [PDF], arguing that at the time that Attorney Baldwin represented the Defendants, there was no actual conflict of interest, according to court papers. Based on their interviews prior to testifying, it appeared that the Defendants intended to cooperate with the investigation. Such an action would not conflict with the interests of the other witnesses represented by attorney Baldwin, who also were cooperating.
See also: A Harsh Verdict on Penn State's GC Outlined in Freeh Report, CorpCounsel, July 2012.