Attorney General Kathleen Kane
Attorney General Kathleen Kane (AP Photo)

While state Attorney General Kathleen Kane has been locked in high-profile litigation with the lawyers for ex-Penn State president Graham Spanier for more than a year, it now appears that both sides have at least one thing in common: They have both recently called into question the work of former Chief Deputy Attorney General Frank Fina.

According to attorneys who spoke with the Law Weekly, the case Spanier filed against Kane in the U.S. District Court for the Middle District of Pennsylvania last month seeking to end a prosecution stemming from the Jerry Sandusky child sex-abuse scandal was the first filing related to the case to have brought Fina’s name to the forefront of the litigation.

Spanier’s federal suit claimed that Fina, in leading the investigation of the former university president on allegations of perjury and child endangerment charges, had acted in bad faith.

The filings seemingly echo press conference statements made last month by Kane when she characterized a sting investigation led by Fina as mismanaged, “nonprosecutable” and possibly tainted by “racial targeting.” The investigation reportedly captured five state officials on video and audiotape allegedly accepting bribes and kickbacks, but Kane has said her office was forced to shut down the investigation due to its problems.

Attorneys who spoke with the Law Weekly said the public dispute between Kane and Fina has put the attorney general in an awkward position in the Spanier case.

“It does place the Attorney General’s Office in a difficult position where they have to be supportive and say, ‘This is a good prosecution,’ but then this same prosecutor who was leading that case, they’re calling him out saying he so mismanaged this other case that it’s something that couldn’t even be brought into court,” said attorney Michael J. Engle of Greenblatt, Pierce, Engle, Funt & Flores. “That does create a very sticky situation.”

Engle represents one of the defendants in a prosecution involving the Pennsylvania Turnpike Commission, another case where Fina was a top investigator.

A series of public statements published as op-ed pieces in the Philadelphia Inquirer, including one from Philadelphia District Attorney Seth Williams, who hired Fina from the Attorney General’s Office, further amplified the controversy. Williams defended Fina’s work in the shuttered sting, and said that Kane needlessly killed the investigation.

Williams also said Fina has denied the allegation that the investigation selected targets based on race, and that he believes Fina’s account of the investigation.

“He has absolutely, unequivocally denied he was asked to, or agreed to, engage in such reprehensible conduct. He says he did what he has always done as a law enforcement officer: follow the evidence where it led,” Williams said in his statement. “By attacking [the fact that prosecutors made a deal with the witness], Ms. Kane has undermined not only this prosecution, but all the other cases carefully built on the same foundation.”

This is not the first instance where Kane has called Fina’s work into question.

The Legal and Inquirer have each reported that Kane raised questions regarding whether Fina’s relationship with Senior Judge Barry Feudale prevented the judge from ruling objectively in the Pennsylvania Turnpike Commission grand jury investigation.

Kane is also reviewing the investigation and prosecution of the Sandusky case, which was partly handled by Fina. In early 2013, Kane’s office named H. Geoffrey Moulton Jr. as the special prosecutor to head a review of Gov. Tom Corbett’s actions in the Sandusky investigation while Corbett was state attorney general.

“It’s very complicated when there are conflicts between two different prosecuting entities and also within a prosecuting entity, but sometimes conflict is healthy,” said white-collar criminal defense attorney Ellen C. Brotman of Montgomery McCracken Walker & Rhoads.

According to Engle, however, the controversy could hinder the prosecution of the ex-administrators.

Engle also said the issues raised by Spanier could be used to undermine the credibility of Fina’s investigative work in several other high-profile cases.

Spanier’s federal suit specifically mentions Fina, alleging that he acted in bad faith. The complaint focused on Fina’s actions during the grand jury testimony sessions of Spanier and former university attorney Cynthia Baldwin.

According to the complaint for injunctive relief, Fina “extensively” questioned Baldwin about allegedly privileged conversations she had with Spanier while she testified before a grand jury in October 2012. Spanier also argued in the complaint that the perjury charge he now faces was based almost entirely on that testimony and that the perjury charge is the “linchpin” of the entire prosecution.

The complaint also alleges that, although Spanier had told a grand jury that he was represented by Baldwin before he testified in the April 2011 grand jury proceedings related to Sandusky’s prosecution, Fina had heard Baldwin tell the supervising grand jury judge that she did not represent Spanier, but only the university.

Along with additional defendants Gary Schultz, ex-vice president for business and finance, and Tim Curley, ex-athletic director, Spanier faces charges of perjury, endangering the welfare of children, obstructing administration of law, criminal conspiracy and failure to report in connection with the university’s handling of alleged reports of Sandusky’s sexual abuse of minors.

Brotman, however, said regardless of the prior criticism, Kane will continue to support Fina’s work regarding his prosecution of the former Penn State administrators.

“I think the Attorney General’s Office is going to support and maintain positions that Fina did everything properly, and certainly did not act in bad faith,” Brotman said. “I think it was inevitable that Frank was going to get dragged into this attorney-client privilege maelstrom. You need a state actor. If you have a violation of constitutional rights, that has to be done by the state.”

Philadelphia-based criminal defense attorney Jeffrey M. Lindy said he is not so sure the controversy will have much of an impact.

“That’s what Penn State’s lawyers hope,” Lindy said. “They’re going to use Kane’s attacks on Fina to call into question the whole investigation, and that’s a perfectly fine approach.”

All attorneys who spoke with the Law Weekly agreed that any controversy between Fina and Kane will likely not impact the outcome of Moulton’s investigation of the Sandusky investigation.

However, according to G. Terry Madonna, a professor at Franklin & Marshall College, the controversy could further politicize the report. Kane has questioned whether the pace of the Sandusky investigation was influenced by Corbett’s decision to run for governor; however, supporters of Corbett have accused Kane of playing politics herself with the probe, as she had promised the investigation during her run for the office.

“I don’t know that those disputes that have arisen, particularly with the sting, will cause the findings of the prosecutors to be ignored or thrown to the side,” Madonna said. “It’s hard to see how Republicans won’t see this in a political context. But, in my opinion, I want to know what the substance is before making a final judgment.”

Messages seeking comment from the Attorney General’s Office were not returned. Attempts to reach Fina through email a spokeswoman for the Philadelphia District Attorney’s Office were unsuccessful.

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