Monsignor William J. Lynn at a previous court appearance (AP Photo/Matt Rourke)
A recent ruling in the state Superior Court could narrow the chances of conviction for three former Penn State administrators accused of covering up sexual abuse perpetrated by Jerry Sandusky, according to several attorneys who spoke with the Law Weekly.
The case could also be complicated by lingering questions about the possibly ambiguous role of former university general counsel Cynthia Baldwin, who testified at grand jury proceedings that led to the administrators’ indictment.
On Dec. 26, 2013, the Superior Court tossed out the conviction of Monsignor William J. Lynn, who was the first Catholic Church administrative official convicted of endangering the welfare of children abused by other priests. The intermediate court found that Lynn should not have been charged as a principal under the pre-2007 EWOC statute because he was not the direct supervisor of any of the alleged victims, but instead supervised the direct supervisors of the alleged victims.
In 2007, the legislature amended the statute to include not only a parent, guardian or other person supervising a child, but also someone who employs or supervises such a person.
The three former PSU administrators— former university President Graham Spanier, former Vice President Gary Schultz and former athletic director Tim Curley—have been charged with EWOC, failure to report, conspiracy to commit EWOC, perjury and obstruction of justice. The charges stem from incidents of abuse perpetrated by Sandusky, a former Penn State assistant football coach, in 1998 and 2001 that were allegedly reported to the administrators.
Michael J. Engle of Greenblatt, Pierce, Engle, Funt & Flores said the charges in the Lynn case mirror the EWOC charges that have been filed against the PSU defendants, and the Superior Court’s reasoning behind tossing the Lynn case could apply to the Penn State administrators.
“Given the language the Superior Court used and the way it interpreted [the statute] and described its application, a very strong argument could be made by the defense,” he said. “Not everyone is going to have those duties that the statute makes criminal if you violate them. I can’t imagine how those three defendants won’t be successful in arguing that.”
The success of that argument, however, would depend on whether the state Supreme Court agrees to hear the Philadelphia District Attorney’s Office’s appeal of the Superior Court ruling, and if the court does grant allocatur, whether the court upholds the intermediate court’s findings, Engle explained.
“That issue may not be final certainly, if the Supreme Court decides to hear that,” said Matthew Mangino, a former district attorney for Lawrence County and now a practicing criminal defense attorney. Mangino is a regular columnist for the Law Weekly. “But ultimately those charges may not be appropriate in the Penn State case.”
Due process requires criminal statutes to be interpreted strictly so individuals are on notice of what conduct is prohibited, said Ellen C. Brotman of Montgomery McCracken Walker & Rhoads in an email to the Law Weekly. If the language is ambivalent, the rule of lenity applies and the court must apply the interpretation that narrows criminal liability and favors the defense, she added.
“I think the court’s decision is well grounded in the statute and has clear implications for the Penn State defendants,” Brotman said. “I would expect a motion to dismiss the EWOC charges based on this decision to be filed in that case.”
Joe Peters, a spokesman for state Attorney General Kathleen G. Kane, said the state is analyzing the decision in Lynn’scase to evaluate any potential impact.
“Whatever the outcome, we are confident in our prosecution going forward. In the publicly filed documents, we have alleged conduct post-2007 when the legislative changes were made to the statutes,” he said. “Even if it is ultimately determined that the Monsignor Lynn decision would put a charge in our case in jeopardy, we still have conduct post-2007, and are prepared to go forward with our case in court.”
Philadelphia-based criminal defense attorney Jeffrey M. Lindy, who represented Lynn during his criminal trial and argued that the pre-2007 EWOC charges did not apply to the Lynn case in several lower court proceedings, said the conspiracy charges against the administrators could still stick regardless of Lynn’s outcome.
“The conspiracy charge can ride on its own,” he said. “I don’t know how you could have EWOC only pre-2007 and then have conspiracy post-2007. I don’t think that’s what this is. The conspiracy relates to conduct pre- and post-2007.”
Defense attorney David W. Zellis, formerly first assistant district attorney for Bucks County, said that, despite the ruling, the prosecutors will continue to fight.
“It’s clear that the Superior Court has thrown a curveball at prosecutors across the state with the decision in the Lynn case,” he said. “At the same time, I think I would be shocked if the prosecution didn’t go ahead with their cases.”
In addition to the EWOC charges, the defendants also face perjury, obstruction of justice and failure to report charges reportedly connected with statements made during grand jury proceedings.
The three defendants were accompanied to grand jury proceedings in 2011 by Baldwin, a former state Supreme Court justice, who was then the university’s general counsel. Baldwin, however, later testified during 2012 grand jury proceedings that led to the charges against the three defendants.
The three have since argued that they believed they were being represented by Baldwin at the 2011 grand jury.
Although the attorneys who spoke with the Law Weekly noted that they are not familiar enough with the specifics of the case to say exactly what is likely to occur, several said questions about the defendants’ counsel could potentially jeopardize the perjury charges.
“I think all charges brought by the grand jury are vulnerable if there’s a defect regarding a client’s testimony without counsel,” said Philadelphia-based criminal defense lawyer Lisa A. Mathewson.
According to Mathewson, if the court finds that Baldwin represented the defendants, then any charges based on her testimony would have to be quashed.
“If she was their lawyer, then there was a privilege problem. But if she was not their lawyer, then they were without a lawyer,” she said. “The difficulty for the prosecution is that the alleged defects arose in the grand jury process, and the grand jury process is now water under the bridge.”
If the defendants were found to have made statements without proper access to counsel, Engle said, the evidence could be suppressed, much like testimony elicited from defendants who are not properly represented in drug cases.
“There are substantial questions about whether or not there was a breach of the grand jury process and a violation of the grand jury process such that certain evidence should be suppressed or unavailable,” he said. “There are questions that still haven’t been answered.”
Zellis, however, said that even if the EWOC charges were tossed by the Commonwealth v. Lynn decision, prosecutors still have a strong case on the perjury charges.
“A lawyer might give you advice, but you’re the one who’s swearing in to tell the truth. That’s what the issue is. … You can point your finger at the lawyer all you want,” he said. “It’s a tough charge to get around.”
Lindy said the Baldwin questions could complicate any charges based on her testimony, but the issue would not likely jeopardize the perjury charges as a whole.
“If she was their lawyer, she could not possibly give that information without violating attorney-client privilege,” he said. “If they testified under oath and they got the testimony under oath; if they lied in there, it doesn’t matter. … It’s a good argument that the lawyers should make, but I don’t see it as a winning argument.”
When reached for comment, Baldwin’s attorney, Charles De Monaco of Fox Rothschild, said a close reading of the record and transcripts shows that his client’s role was clear, and that she properly handled the defendants’ representation both before and after the grand jury proceedings.
“Any suggestion by the defendants and their counsel that Mr. Schultz, Mr. Curley or Dr. Spanier did not understand Justice Baldwin’s role or whom she represented lacks any merit,” he told the Law Weekly in December 2013.
Just when these questions are answered will depend largely on how Dauphin County Court of Common Pleas Judge Todd Hoover rules regarding Baldwin’s role and whether or not any appeal of the Lynn decision is finalized before the trial in the administrators’ case.
“I would suspect that either the parties are going to delay the proceedings [pending the ruling in Lynn], or they could proceed and, if it results in conviction, depending on how Lynn comes down, there could be a reversal, or a vacating of those convictions,” Engle said, noting that a reversal by the Supreme Court could also make the issue moot.
Regardless of the outcome of either the Lynn or Baldwin issues, the case will be vigorously prosecuted, Mangino said.
“Certainly this changes the complexion of the prosecution,” Mangino said. “In a lot of ways, the Attorney General’s Office inherited these charges, but I think that the office has a responsibility to pursue everything that they believe they can prove beyond a reasonable doubt. Obviously, they’re going to zealously present those charges to a jury at some point, and put the best possible case they can on.”
No trial date has been set for any of the three administrators. Curley and Schultz were arrested in late 2011 and Spanier was charged in late 2012.
Calls to the defendants’ attorneys seeking comment were not returned.