penn state
()

Prosecutors have taken strong issue with arguments made by ex-Penn State President Graham Spanier, which they characterized as “inaccurate” and “gratuitously disparaging.”

In papers filed March 7, but released by the Dauphin County Court of Common Pleas on Wednesday, the state Attorney General’s Office moved to strike a response to the state’s proposed findings of facts and conclusions of law that Spanier filed in February. The filing disputed the claim that prosecutors “‘manipulate[d] the record’ to hide the facts,” and questioned Spanier’s representation of Cynthia Baldwin, a key witness for the prosecution. The filing also questioned Spanier’s right to file any response to its proposed findings of facts.

“Aside from the obvious noncompliance with the court’s scheduling order, this method of litigation should not be countenanced because, absent yet another round of briefing, the commonwealth will not have a full and fair opportunity to respond to this unauthorized, inaccurate and impertinent filing,” said Chief Deputy Attorney General James P. Barker in the filing.

In a related civil case for defamation, Centre County Court of Common Pleas Judge Jonathan D. Grine also denied an emergency motion filed by Louis J. Freeh asking the court to reconsider the stay it granted in the matter, which Spanier began with filing a writ of summons in July.

One day after the motion was filed, Grine issued a one-page order denying it without a hearing.

Freeh, who led an investigation into Penn State’s handling of child sex-abuse reports in the Jerry Sandusky scandal, outlined four reasons for reconsidering the stay, including the claim that the court failed to consider the “extraordinary factual circumstances” of a plaintiff seeking to delay filing a complaint in a case he commenced.

“Plaintiff has cited no authority—and defendants are not aware of any—in which a court permitted a civil plaintiff that has affirmatively commenced an action to avoid filing a complaint on the basis that he is a criminal defendant,” said Freeh’s attorney, Robert C. Heim of Dechert, in the filing.

Freeh additionally argued that, while the court based its stay on Spanier potentially invoking the Fifth Amendment, Spanier specifically disclaimed that he would invoke the Fifth Amendment. The filing additionally said it was unlikely the criminal matter would be resolved within one year, and that Spanier’s failure to file a complaint threatened Freeh’s ability to move the case to federal court, because of the statute of limitations.

In Commonwealth v. Spanier, the motion to strike Spanier’s response specifically contested claims regarding the capacity in which Baldwin, who represented the university while Spanier was being investigated, appeared before the grand jury that was investigating Sandusky. The commonwealth disputed Spanier’s claim that Baldwin, without telling Spanier, told the presiding grand jury judge, Barry F. Feudale, and prosecutors that she represented Penn State solely with regard to Spanier’s testimony during the Sandusky grand jury.

“The reason for this absence of a citation to the record for this supposed ‘fact’ is that there is no support in the record for this supposed ‘fact’: Attorney Baldwin never told Judge Feudale or anyone from OAG that she did not represent Spanier when he testified before the grand jury,” Barker said in the filing.

Spanier, along with ex-vice president for business and finance Gary Schultz and ex-athletic director Tim Curley, is facing charges of perjury, obstruction of justice, child endangerment and failure to report in connection with incidents of sexual abuse of minors at the hands of Sandusky, a former Penn State assistant football coach who was convicted of sexual abuse of minors.

The defendants have pointed to alleged conduct of Baldwin, a former state Supreme Court justice, and the Office of Attorney General prosecutors as reasons their cases should be dropped.

According to court filings, Baldwin had accompanied the men to grand jury appearances in 2011, but then later testified against them during 2012 grand jury proceedings. Baldwin was Penn State’s top lawyer at the time, and the defendants have contended that they believed she represented them during the grand jury proceedings.

The defendants contend that what they view as Baldwin’s murky role led to deprivation of counsel, violations of grand jury secrecy and breach of attorney-client privilege.

Spanier’s potential defamation claims would stem from Freeh’s investigation into the university’s handling of the Sandusky investigation, which was commissioned by the university under Spanier’s successor. Freeh’s report summarizing the investigation’s findings implicated Spanier in covering up accusations against Sandusky, who was convicted in 2012 on 45 of 48 counts of child sexual abuse. Freeh’s report portrayed Spanier as having repeatedly concealed important information from authorities.

In February, Spanier’s motion to stay the case pending the outcome of his criminal case was granted.

“We understand that motions for reconsideration are rarely granted, but we were pleased that the court acted promptly so we can seek a timely appeal to the Superior Court,” Heim said.

A call to Spanier’s attorney, Elizabeth K. Ainslie of Schnader Harrison Segal & Lewis, was not returned. The AG’s press office did not return a message seeking comment.

Max Mitchell can be contacted at 215-557-2354 or mmitchell@alm.com. Follow him on Twitter @MMitchellTLI. •