Cynthia Baldwin
Cynthia Baldwin ()

Despite a ruling denying motions to preclude Cynthia Baldwin, the former Penn State general counsel, from testifying against three ex-university administrators in a criminal case stemming from the Jerry Sandusky child sex-abuse scandal, the question of whether she will ever take the stand is still very much up in the air.

On Jan. 17, Dauphin County Court of Common Pleas Judge Todd A. Hoover, who is presiding over the cases against former university President Graham Spanier, ex-vice president of business and finance Gary Schultz and ex-athletic director Tim Curley, each of whom is accused of conspiring to cover up incidents of child sexual abuse by Sandusky, blocked for now their effort to preclude Baldwin from testifying because of attorney-client privilege.

However, Hoover denied the motions without prejudice as premature, and issued an additional order giving the defendants 30 days to identify more pleadings and propose more arguments and findings of fact to support their motions to quash the criminal complaints.

Several attorneys who spoke with the Law Weekly said the judge’s actions indicate he is slowing down the proceedings to take a closer look at whether or not an attorney-client relationship existed between Baldwin and the defendants, and also whether that privilege was violated, before he makes any ruling on whether to preclude Baldwin’s testimony.

“What he’s saying is, ‘I don’t have a factual record in front of me that lays out that there is a privileged relationship, so show me,’” said white-collar criminal defense attorney Ellen C. Brotman, of Montgomery McCracken Walker & Rhoads.

Spanier, Schultz and Curley were accompanied to grand jury proceedings in 2011 by Baldwin, a former state Supreme Court justice, who was then Penn State’s top legal official. The grand jury proceedings were part of the investigation into Sandusky’s activities.

Baldwin, however, later testified during 2012 grand jury proceedings that led to the charges against the three defendants.

The three former administrators were charged with endangering the welfare of a child, failure to report, conspiracy to commit EWOC, perjury and obstruction of justice. The charges stem from incidents of abuse perpetrated in 1998 and 2001 by Sandusky, a former Penn State assistant football coach, that were allegedly reported to the administrators.

The defendants are arguing that their legal rights were so badly trampled during grand jury proceedings that the charges should be tossed.

The latest ruling means that the judge is taking these defense arguments seriously, attorneys said.

“If I’m the criminal defense lawyer, I’m thinking this is good for me,” Brotman said. “What he’s not doing is he’s not denying the motion. What he’s saying is: ‘I’m still thinking about this seriously.’”

Michael J. Engle of Greenblatt, Pierce, Engle, Funt & Flores, said that while the ruling may not be a big win for the defense, it is certainly not a loss.

“It keeps you in the fight and, certainly, it keeps the issue alive,” he said. “When you have a judge that leaves it open-ended like that, it sounds to me like there’s more to come.”

At a pretrial hearing held in December, Hoover did not have Baldwin testify, but instead asked the parties to submit additional findings of fact. The most recent ruling, Engle said, could result in another hearing specifically focused on the admissibility of Baldwin’s testimony.

Charles A. De Monaco, who is representing Baldwin in the matter, has maintained that his client properly handled the defendants’ representation both before and after the grand jury proceedings.

“Justice Baldwin believes that all issues of fact and law need to play out in court,” he said in an emailed statement. “The orders entered by the court on Jan. 17, 2014, are part of that process.”

Trouble for Prosecution?

Losing Baldwin’s testimony could jeopardize elements of the prosecution’s case, some attorneys who spoke with the Law Weekly have said.

“It’s very important for the prosecution’s case, and there could be parts of the case that can’t go forward without it,” Brotman said. “This is a critical issue in the case.”

Baldwin’s testimony supports the perjury charges in particular; however, if she is unable to testify, any charge stemming from privileged statements the defendants made to Baldwin during the university’s internal investigation could also be dismissed, Brotman said. She added that it is always difficult to determine exactly what facts or testimony will resonate with a jury.

However, according to Joe Peters, a spokesman for state Attorney General Kathleen G. Kane, a decision from Hoover precluding Baldwin as a witness would not dismiss the prosecution’s case.

“In terms of the rulings, we do not see the rulings in any way impacting our ability to proceed to trial,” he said of the recent rulings. “We are ready to try this case.”

Documents unsealed in December include the Oct. 26, 2012, testimony that Baldwin gave before a grand jury regarding the defendants’ alleged knowledge of sexual-assault incidents.

In that testimony, Baldwin discussed her dealings with the defendants, in particular Spanier, while Sandusky was being investigated. The testimony includes accounts of alleged cover-up actions Spanier took when he disclosed the investigations and court proceedings to the university board, and excerpts of interviews he gave to several media outlets about the scandal.

Baldwin said in the testimony that Spanier misrepresented his understanding of the proceedings to the board several times, and that his accounts of events through interviews in the media conflicted with her handling of the matter.

“I can’t get inside his mind, but the fact is that there is no doubt that he lied to me,” she said toward the end of nearly two hours of testimony, according to the transcript.

According to Engle, allowing Baldwin to testify at trial would not make defense counsel’s task hopeless.

“If her testimony comes in, it still has to be weighed by the jury if she’s a credible witness or not,” Engle said. “There are a host of issues at trial to undercut her testimony.”

Most attorneys who spoke with the Law Weekly agreed that the defendants will likely appeal the decision if Baldwin is allowed to testify.

According to Engle, even if the state Superior Court examines an interlocutory appeal on an expedited bases, the move would delay proceedings by at least six months.

Delay for Lynn Appeal?

In late December, the Superior Court ruled that Monsignor William J. Lynn, who was the first Catholic Church administrative official convicted of endangering the welfare of children abused by other priests, 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.

Prosecutors in that case plan to appeal the decision to the state Supreme Court.

Many attorneys who spoke with the Law Weekly agreed that this holding posed a threat to the EWOC charges against the former Penn State administrators, as they were in supervisory positions possibly akin to Lynn’s and were also charged under the pre-2007 EWOC statute.

So, was Hoover’s ruling a tactic to delay any trial proceedings until the high court provides some guidance—either by accepting the appeal or holding the Superior Court’s decision as final—on whether the EWOC charges will stick?

Engle said that is highly unlikely. If Hoover wanted to delay the proceedings, he could ask the parties to agree to postpone the trial until the Lynn appeal is finalized, he said. This tactic could be beneficial for all parties, according to Engle, since it could save time prepping for the trial and could narrow the appealable issues.

Brotman agreed.

“I don’t see this as a delay tactic by the judge,” she said. “I think it’s a very important issue and it’s being litigated very vigorously, and the judge is giving it very serious attention.”

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