Friday, August 28

"Nifonged" Part 2: The Real Conspiracy of Silence

According to the Moulton Report, "the Penn State state emails" were turned over by July 7, 2011, proving a key obstruction of justice allegation was false and that Fina suppressed this evidence to charge Curley and Schultz with failure to report.   


By
Ray Blehar

In Part 1 of the series, the evidence indicated that Frank Fina's expectation that Curley and Schultz would "flip" was among the reasons behind his use of unreliable evidence.  Fina's reliance in pressing charges on flimsy evidence was much worse than that of Durham DA Mike Nifong, who was eventually disbarred over his misconduct in the Duke lacrosse case. In Part 2, the Moulton Report and a lot of other evidence reveal the misconduct on the part of Fina and then-Penn State Counsel Cynthia Baldwin during the Sandusky investigation -- in the lead up to the eventual Conspiracy of Silence case.

On November 1, 2012, the Conspiracy of Silence  (CoS) presentment levied allegations of obstruction justice against Graham Spanier, Gary Schultz, and Tim Curley.  While a long list of allegations were included in the presentment, many of which were not crimes, the key allegation of obstruction of justice was the lack of compliance with Subpoena 1179.



GJ Subpoena 1179 (Sandusky case), issued on December 29, 2010 requested:  

"Any and all records pertaining to Jerry Sandusky and incidents reported to have occurred on or about March 2002, and any other information concerning Jerry Sandusky and inappropriate contact with underage males both on and off University property. Response shall include any and all correspondence directed to or regarding Jerry Sandusky."


That allegation was blown away by the Moulton Report's timeline, specifically:

"July 7, 2011. Tpr. Rossman receives a thumb drive containing Penn State emails."

Trooper Scott Rossman and OAG Agent Anthony Sassano were the two investigators assigned to the case in July 2011.  Obviously, Rossman's receipt of the Penn State emails proves the charge of a "total lack of compliance" was false. 

Additionally, the notebook of former PSU President Rodney Erickson appears to confirm that Penn State had Schultz's notes by at least January 31, 2012 -- a little under a year before the obstruction charges were filed.



The analysis performed by Eileen Morgan made a very strong case that Penn State provided the OAG with the Schultz file in early January 2011 and that Fina utilized it in the grand jury examinations of Curley and Schultz.

However, the falsity of the obstruction charges doesn't stop there.  Not by a long-shot.


Smoke and Mirrors

PSU Policy AD49, effective July 19, 2010, clearly states that the General Counsel (Baldwin) was responsible for answering subpoenas: 


"LEGAL DOCUMENTS INCLUDING SUBPOENAS:

Baldwin "stonewalled" the PSU Three
All legal documents including subpoenas are to be referred to or routed through The Office of General Counsel. The Office has the prerogative to send them to other parties after receipt. The Office of General Counsel shall establish all procedures for handling and addressing legal documents."

The entire obstruction of justice and criminal conspiracy ruse is based on the assumption that Baldwin followed through on her responsibilities.  

Baldwin's grand jury testimony (pages 16-21) was clear that she met with each man one-on-one to discuss the subpoena.  

The evidence tells a different story.

Baldwin not only stonewalled the PSU Three about the subpoena, but of all of her knowledge of the evidence relevant to the Sandusky case.  

The Baldwin Stonewall


1998 Incident:  According to the Freeh Report (page 83), Baldwin obtained a copy of the 1998 police report on January 4, 2011.  Based on the consistent lack of recall of the 1998 incident by Paterno, Curley, and Schultz, it is quite obvious she didn't share the report to help prepare them for their appearance. Similarly, Spanier recalled almost nothing about the 1998 incident when he appeared at the grand jury in April 2011. 

2002 Incident:  Subpoena 1179 clearly identified 2002 as the date of the McQueary incident, but when under questioning at their pre-grand jury interviews, neither Curley nor Schultz got the date correct. Curley guessed 2000, while Schultz believed the incident was in 2003.  At Spanier's April 2011 grand jury appearance, he correctly stated 2002, although he said he wasn't sure of the date, but recalled it was about three years after Sandusky retired.

Subpoena 1179:  Baldwin did not advise Penn State officials of their responsibility to search for materials relevant to the subpoena.

Curley: According to Curley's omnibus pre-trial motion, he twice met with Baldwin, once at the Outback Bowl in Tampa, Florida (prior to the issuance of the subpoena) and once in State College, Pennsylvania to discuss his appearance at the grand jury.  Curley's motion makes no mention that Baldwin advised him to search for materials responsive to the subpoena.  

Paterno:  Scott Paterno, son of legendary coach, Joe Paterno, stated that Baldwin resisted providing him with his father's subpoena to testify and didn't provide it until April 2011.  He also stated that Baldwin never asked his father to search for any documents.  The Paterno family later volunteered numerous documents regarding Sandusky to assist in the Freeh investigation.  

Schultz: According to Schultz's omnibus pretrial motion, in December 2010, Baldwin informed him that he was subpoenaed to testify before the grand jury in January 2011.  Schultz agreed to let Baldwin accept service of the subpoena on his behalf. Schultz's affidavit made no mention of Baldwin informing him to search for Sandusky related materials. 

Spanier:  According to Graham Spanier's New Yorker interview, he was not told to search for documents by Baldwin.  

"In that period from January, February, March, she [Baldwin] only gave me a report that these folks are going to the grand jury. She told me somewhere along the way that they were interviewing staff in the football program, and she would be there for all the interviews. But she never told me what was asked about in the interviews, never told me what came up with Curley and Gary Schultz in their testimony."


Motions To Quash: Baldwin never filed a motion to quash the Subpoena 1179 nor did she make any other formal appeal to the OAG for relief.  As such, the OAG was likely expecting many documents to be produced. 

According to the presentment, PSU had only turned over a handful of documents prior to the testimony of Curley, Schultz, and Paterno.




In consideration of the evidence above, Baldwin was either a completely incompetent attorney or she was intentionally undercutting PSU officials.  The circumstances of her hiring appears to point to the latter.

But what do Baldwin's follies have to do with Frank Fina? 

Unwitting Targets

During the January 2011 grand jury, Sandusky case prosecutors Eshbach and Fina didn't ask Curley, Schultz, and Paterno if they were informed about Subpoena 1179 or if they conducted searches to find relevant information. 


Fina: No questions about Subpoena 1179  
Given the allegation that Penn State had turned over just a handful of documents just TWO DAYS before the testimony of PSU officials,  it strains credulity that Fina and Eshbach didn't ask anyone a question about that subpoena or any questions at all about searching for documents related to Sandusky.  The only person asked about documents was Schultz, likely because Baldwin had already passed his notes to them.

Based on the evidence, it is almost certain that the Commonwealth knew Baldwin had not informed Curley, Schultz, and Paterno about their responsibilities to gather information in response to Subpoena 1179. 

This is not a case about a bunch of incompetent lawyers, but more likely a case of Fina, Eshbach, and Baldwin collaborating to extract sworn testimony from Penn State officials who had no idea they were targets of the Sandusky investigation.  



More Lies About Emails

Page 23 of the presentment alleges that Penn State did not use its established procedures or personnel to conduct the searches for emails.  The allegations (below) are false, as # 3 and #4 were disproved by the testimony of Penn State employee, John Corro, who works for Security Operations and Services (SOS).



On July 29, 2013, Corro testified (on page 89 and 90) that in April 2011, he recovered the emails based on the searches for Curley, Schultz, and Spanier, then provided them to Baldwin (page 91).  

Corro further elaborated (pages 91 and 92) that he provided three USB keys to Baldwin, one which contained the entire set of emails and two that were of specific searches. 





When asked if he saw Subpoena 1179, like the others, Corro stated had not. He had only seen a few lines of it as part of another document,  but understood that he was searching for information related to the Sandusky investigation.






































According to the agreement made at the Spanier GJ colloquy on April 13, 2011, Penn State was ordered to provide the entire history of emails from PSU officials dating back the University's implementation of email (i.e., prior to 1997) for Spanier, Curley, Schultz, and Paterno.   

Due to the system cut-over in 2004, the search for emails responsive to Subpoena 1179 (citing 2002)  required Penn State to access the archived files where Gary Schultz's 1998 and 2001 email files were located.  Corro didn't testify to any issues with accessing the archived files.

Penn State was to provide the full set - everything found -  to the grand jury judge and then a "culled set" specifically related to Sandusky to the OAG. 

Baldwin agreed to provide everything by April 15, 2011.  

No evidence to date identifies the exact date on which Baldwin provided the USB keys to the grand jury judge and/or the OAG, however, the testimony of Corro, and statements by Fina and Eshbach reveal that all of the 1998 and 2001 the emails were in the OAG's possession by April 2011. 

As for Louis Freeh's alleged discovery of the 1998 and 2001 emails...the evidence reveals that it didn't happen.


Summary of Evidence

The bottom line is that Fina, et al, knew that Penn State had indeed used the SOS to gather materials responsive to Subpoena 1179 and that Spanier, Curley, and Schultz were not guilty of obstructing the investigation by failing to turn over information.  To wit:

1. Schultz was retired from Penn State when Subpoena 1179 was served and had no access to the Sandusky file in his old office or to his 1998 and 2001 (archived) emails. According to an affidavit filed by Schultz, he informed Baldwin of the possible existence of the Sandusky file.  Any failure to provide those materials was because of Baldwin, not Schultz. 

2. Spanier did not possess materials responsive to the subpoena. 

3. There has been no evidence provided to date, aside from a reference in Erickson's notebook, that Curley possessed any evidence responsive to the subpoena.

The only other conspiracy to obstruct justice charge is wholly dependent upon the Commonwealth's legally impossible task of proving that Mike McQueary informed Curley and Schultz that a crime was being committed.  

In other words, the Commonwealth has nothing.

And let's face it, if there was any material/inculpatory evidence to be found, Louie Freeh would have put in his report.

Fina vs. Nifong

One of the reasons Durham County DA Mike Nifong was disbarred was for failure to disclose evidence that negated the guilt of the defendants.  Nifong failed to provide the complete results of the DNA tests that concluded two of the three defendants were not involved in the alleged rape of Crystal Mangum and made numerous misrepresentations about the nature of the evidence before the court.  The withholding of evidence was in violation of former Rule 3.8(d) of the Revised Rules of Professional Conduct.  The misrepresentations were in violation of Rule 8.4 (c). 

Fina's case is a bit different than Nifong's, however the same rules of conduct apply.

The fact that the Penn State emails were in the Commonwealth's possession by at least July 2011 (if not April 2011)  is proof that the Commonwealth knowingly lied about Penn State's failure to comply with Subpoena 1179. 

Given that the emails (and the Schultz file) included the date of the 2001 incident witnessed by McQueary, the evidence also proves that Fina, et al, purposely misstated the year of the McQueary incident in order to charge Curley and Schultz with failure to report in November 2011. 

The Sandusky prosecution team of Fina and Eshbach filed numerous documents with the court misrepresenting the date of the Victim 2 incident as March 1, 2002.  It was not until May 7, 2012 that Fina and McGettigan's Motion to Amend the Bill of Particulars to provided the correct date of February 9, 2001.

The evidence shows that Fina, et al, made numerous misrepresentations to the court during the Sandusky proceedings, in initially charging Curley and Schultz, and during Baldwin's grand jury testimony in October 2012.



Conclusion

The evidence regarding Penn State's provision of the email evidence is exactly the type of information that Frank Fina and his cohorts likely feared would be exposed when their "flip" strategy failed.  

While Moulton's investigation didn't highlight it, there is little doubt that his investigative team uncovered the email ruse.  If not for the toxic politics of the Sandusky case -- and the pre-emptive strike by Fina -- AG Kane might have already went public about Fina's deception.

No doubt, there was a "conspiracy of silence" related to the Sandusky case, but not by the people accused of it.


Next: Freeh "Fail"

Wednesday, August 19

Fina Feared Being "Nifonged" By Kane (Part 1)

Attorney General Kane stated the emails in the "porngate" prompted Fina's attack on her, however, Fina also feared that Moulton's investigation could cause him to be disbarred.  


By
Ray Blehar

At her press conference, Attorney General Kathleen Kane stated that she broke no laws and that the court system and subsequent charges were being used as a "stealth weapon" to discredit and silence her.

Sound familiar?

In November 2011, former AG Linda Kelly and her lead prosecutor, Frank Fina used the same tactics to silence and discredit PSU officials Timothy Curley and Gary Schultz -- falsely charging them with failure to report and perjury.  Had they not been charged, their accounts of the 2001 incident could have been used to impeach the testimony of Mike McQueary during the Sandusky trial.

Don't take my word for it, though.

Sandusky trial Judge John Cleland mentioned that the Curley and Schultz charges could have been used as a means to "hamstring the defense" (see page 169).   Judge Cleland then went on to caution Fina about using the email evidence and Schultz file for the Sandusky prosecution, stating it might "risk your case against Curley and Schultz."  

Unbelievably, prosecutor McGettigan replied, "but we're not going to try that case."

What was going on?


The notes of former PSU President Rod Erickson (below) confirm that on or about January 2012, the OAG was keeping Old Main informed of the ongoing grand jury investigations of Sandusky, Curley, Schultz, and Spanier.   The amount of information shared by the OAG was far more than current AG Kathleen Kane allegedly shared with the Philadelphia Inquirer

But the most important fact contained in the notes was that Fina shared his case strategy with Old Main.  Specifically, that he "expected" Curley and Schultz "to flip"(on Spanier). 

Fina's "flip" strategy is at the root of the misconduct in the Conspiracy of Silence (CoS) case.    If the flip had happened, Fina would have made the case against Spanier on the testimony of Curley and/or Schultz -- and very likely, Cynthia Baldwin.  Securing a plea deal would have likely ensured that Fina's ethical violations would have remained hidden.    

When the flip didn't happen -- and Kane was elected on her promise to investigate the Sandusky investigation -- Fina looked in the mirror and saw Mike Nifong.


The PSU Case Is Duke Lacrosse on Steroids

Fina and Nifong: Mirror misconduct?
Former DA Mike Nifong was disbarred over the Duke lacrosse case, in which he filed charges based on the inconsistent and unsupported testimony of the key witness, suppressed exculpatory and other relevant evidence, used questionable evidence, and made highly prejudicial statements in the press.

The North Carolina State Bar Committee called the case a "fiasco" and said Nifong's actions involved "dishonesty, fraud, deceit, and misrepresentation."


Frank Fina's actions related to the CoS case were remarkably similar to Nifong's, however the stakes in the were much higher in Pennsylvania than they were in North Carolina.  Nifong was using the Duke rape allegations to revive his struggling election campaign.  

Fina used McQueary's dubious rape story to paint PSU officials as enablers of Sandusky's abuse. The goal, likely set by his boss, Tom Corbett, was to scapegoat Spanier for directing Curley and Schultz not to report the incident.  The abuse of grand jury secrecy rules in leaking the presentment (and other evidence) was done to deflect attention away from the Commonwealth's child protective services (and the state police's) failures to protect children from Sandusky.  Had the truth gotten out, the Commonwealth (e.g., Centre County CYS) likely would have been facing lawsuits -- not Penn State.

McQueary Gave "More Vivid" Description in 2010

It is a matter of public record that McQueary's testimony and public statements about the 2001 incident have been consistently inconsistent.  

What is not on the public record - until now - is that Erickson notes confirm that McQueary gave a "more vivid" description to "Detectives - ten years later" than he did in 2001.  The notes also reveal the tortured reasoning by prosecutors to use McQueary's unreliable and unsupported testimony to charge PSU officials.

Lines 1-5:  McQueary denied seeing anything sexual to Dr. Dranov.

Lines 6-7: McQueary lied to Dranov and his father about what he saw. 

Lines 8-9:  Dr. Dranov's, Curley's, and Schultz's stories seem "same."

Lines 10-11: McQueary told different version to Curley and Schultz than he did to Dranov and his father.

Lines 17-21:  When questioned "by police.. Detectives - 10 years later," McQueary gave "more vivid" version "than before." 




It appears that lead prosecutor Fina was pulling a Nifong when he charged Curley and Schultz with failure to report and perjury and then approved a grand jury presentment that stated McQueary was an "extremely credible" witness.  

Fina also had to ignore physical evidence to believe McQueary's story.


No "line of sight" 

Based on the description of the incident provided by Dr. Dranov and the physical properties of the locker room, it is highly probable that McQueary did not see Sandusky and the boy while they in the showers.   According to the notes, the obstruction (and victim) were positioned at the "far right" of the shower room (on the floor plan). "Other three behind" refers to the number of shower heads that would be positioned behind the victim. 

If the victim and Sandusky were positioned in that location, they would have been out of the "line of sight" of McQueary, who testified he looked into the shower through the mirror. 

Lines 20-21:  "kid looked out from behind the obstruction."

Lines 22-23:  "Actually far right, other 3 behind"   "line of sight"

While I believe that McQueary heard slapping sounds and saw Sandusky and a minor youth exit the shower, the physical properties of the locker room made it impossible for him to see in and observe contact.  I also believe Fina knew that to be the situation, but didn't let that evidence stand in the way of his prosecution of PSU officials.  The janitor incident is germane.


Spanier's version

Graham Spanier's grand jury testimony also was the same as Curley and Schultz's -- as it should have been because they informed him of the incident.  

The former PSU President testified (page 14) that "they were horsing around in the shower. I believe that was the language that was used."  When Fina (page 24) asked if it was possible the report was "sexual in nature," Spanier (page 25) responded, "No... what was reported was not a report of any activity that was sexual in nature."

Once again, another individual testified to not being informed of anything sexual being reported about the 2001 incident.  For those keeping score at home, that was five people, including Mike's father, who testified that explicit details were not shared by Mike. 

Fina would eventually charge three of the five with perjury, even though there was no corroboration of Mike's account.

Conclusion
When Duke accuser Crystal Mangum changed her story and was no longer certain she was raped, Nifong dropped the rape charges.  

Conversely, Fina continued to press forward with the perjury and failure to report charges even though detectives believed McQueary gave a more vivid description in 2010 than he did in 2001. 

Weighing the evidence so far, it appears that Fina's conduct related to the CoS case was more unethical than Mike Nifong's at Duke.  But this is just the beginning of the story.

Next: Part 2: Evidence Suppression

Monday, July 27

JimmyW: Timeline of Access to the Schultz file

JimmyW provided an excellent diagram of who had access to the Schultz file.  The diagram has been re-released in the twitter-verse and on BWI Rivals/McAndrew Board.

This is an excellent supplement to Eileen Morgan's latest article on the so-called "secret file."  The evidence in the case points to removal of the file by then PSU Counsel Cynthia Baldwin right after being informed about it by Gary Schultz.



There is rock solid evidence, thanks to Louis Freeh and the PA OAG, that the entire contents of the Schultz file were not revealed to the public when the Freeh Report was issued and were also suppressed during Sandsuky trial.

There is rock solid evidence that the PSU Board and Erickson colluded with the OAG on the railroading of Curley, Schultz, and Spanier when they withheld this evidence.  However, that's not all they withheld and the story will get worse very soon.

Stay tuned.






Sunday, July 26

Morgan: OAG Had Schultz File in January 2011


The contents of the (original) Schultz's "secret file" may be the reason PSU is fighting the release of the Freeh source materials..

by
Eileen Morgan

For three and a half years now, former Penn State officials have been awaiting their day in court.  As most following this story are aware, Tim Curley, Gary Schultz and Graham Spanier have been criminally charged for their alleged roles in the Jerry Sandusky scandal. 

The Freeh Report and the Pennsylvania Office of Attorney General (OAG) have convinced most of the world that:

1) Gary Schultz obstructed justice by hiding a ‘secret file’, which contained information on the 1998 & 2001 incidents involving Jerry Sandusky and young boys, that he kept hidden from authorities, 

2) Louis Freeh ‘discovered’ this ‘secret file’ and other emails which became the smoking gun allegedly ‘proving’ that Curley, Schultz, & Spanier, along with Joe Paterno were involved in an elaborate cover-up that allowed Sandusky to molest children for 14 years.

The evidence, however, seems to prove that Schultz actually made this Sandusky file known to authorities, but those authorities – Cynthia Baldwin and the OAG - are the very ones who kept the file a secret until it was safe for Louis Freeh to ‘discover’ it.

CHARGES

On November 4, 2011, Gary Schultz and Tim Curley were charged with Perjury and Failure to Report in connection with the Sandusky scandal.  About a year later, more charges were added and Graham Spanier was also indicted.  Note that the initial Failure to Report charge has a statute of limitations of 10 years.

Let’s start with the original charges filed in November 2011-Perjury and Failure to Report.  Analyzing the two charges we find that:

1) Perjury was based only on Curley and Schultz's testimony that they were not told of sexual abuse by McQueary; and,

2) Failure to Report would have had to occur on or after November 5, 2001 to keep within the 10 year statute of limitations.

Perjury is:
1.       A false statement.
2.       On a material issue.
3.       Made willfully and with knowledge that it was false.
4.       Under oath.
5.       Before an authorized tribunal, officer, or person.

According to the Grand Jury Presentment, the only basis presented for perjury was that the Grand Jury found Mike McQueary’s testimony to be ‘extremely credible’ and found ‘portions of the testimony of Curley and Schultz not to be credible.’  

But is one witness’s word against another witness’s word enough evidence to file perjury charges?

According to defense attorneys for Curley and Schultz, perjury has to be ‘more than a he said/she said’ and cannot be just an ‘oath against an oath’ as stipulated under the PA statute Section 4902, Section F.
This means the OAG used McQueary’s alleged ‘credibility’ as a front for the perjury charges, but had some other knowledge that Curley and Schultz were not giving truthful statements in their testimonies. 

But, some other knowledge of what?

 (I would like to clarify that I am not claiming Schultz’s notes or any emails actually prove any PSU official committed perjury or conspired to cover up Sandusky’s crimes. To this day, there has been no evidence of such crimes. The courts will rule on the charges if these cases ever go to trial.  My desire is to examine the steps taken by all involved and shed light on the malfeasance of this case, in particular the apparent malfeasance of Cynthia Baldwin and the OAG.)

SCHULTZ’S FILE AND THE MARCH 2012 PERJURY PARTICULARS

Let’s begin with the fact that a file, compiled by Schultz between 1998 and 2001, and containing information on Sandusky’s behavior with young boys in 1998 and 2001 did exist in a drawer in his former office at PSU up until November 2011.

This file was neither ‘secret’ nor ‘discovered’ by Freeh in May 2012 because we now know copies of the file were turned over to the OAG in April 2012 by Schultz and also by his assistant Kim Belcher.  However, I believe a hard copy of this file was in the hands of the OAG in January 2011 before the PSU officials testified.

It is important to remember that Schultz retired from PSU in June 2009.  When he was subpoenaed in January 2011, he was no longer employed at the university and thus had no access to his former office.

HE SAID, SHE SAID

In late 2010, PSU general counsel Cynthia Baldwin was handling subpoenas issued by the OAG for the PSU officials instructing them to turn over information relating to Sandusky and to appear in court to testify at the Grand Jury hearing.

What exactly was discussed between Baldwin and the PSU officials is not known, but on November 1, 2012, Schultz filed a pre-trial motion claiming, among others things, that he informed Baldwin in early January 2011, in response to the aforementioned subpoenas, that he ‘thought there might be a file relating to Sandusky in the office of the senior vice president’ (his former office to which he no longer had access) and that ‘reviewing such notes and documents would help his memory and allow him to testify more accurately.’  In her legal opinion, he said, she told him not to look for or review any documents or discuss the case with anyone.

Ironically, on October 26, 2012, just days before this very motion was filed, Baldwin testified under oath that she was never informed by Schultz of the existence of any file.  On page 20, OAG prosecutor Frank Fina said that ‘we also know that Mr. Schultz had a file regarding Jerry Sandusky in his office’ and that ‘there were handwritten notes and emails pertaining to the 1998 and 2001 crimes of Mr. Sandusky. Did he (Schultz) ever reveal to you the existence of that Sandusky file or any of its contents?’  Baldwin answered, ‘Never.  He told me he didn’t have anything.’

Within days of each other, Baldwin and Schultz gave the court two opposing accounts regarding Schultz’s disclosure of the Sandusky file back in early 2011.  Only one account can be true.  The other is a lie.  Given the information we have to date, we can vet both accounts and reasonably conclude which account passes the litmus test.

PROCESS OF ELIMINATION

Vetting Baldwin
Let’s assume Baldwin is telling the truth.  That means Schultz never mentioned the file to her in early January 2011 when Baldwin alleges she went to Schultz, Curley, and Paterno with Subpoena 1179 asking for any and all information regarding Jerry Sandusky, as well as with a subpoena for each man to testify before the Grand Jury. If Schultz and the others were in fact covering up for Sandusky, as alleged by Freeh and the OAG, then at this point in time, they would have been on heightened alert to deny any knowledge of Sandusky’s crimes and to make sure any evidence that could be used against them was suppressed.  Assuming there was a cover-up, it makes perfect sense that Schultz would never have informed Baldwin of this file in January 2011. 

It makes sense except for one pesky little fact.

As I mentioned earlier, in June 2009, Schultz retired as senior VP of Finance and Business after almost 40 years of service at PSU. However, in September 2011 he was temporarily rehired and named interim senior VP for Finance and Business while the University conducted a national search to fill the position.

So, eight months after Schultz was subpoenaed for information and testified at the Grand Jury hearing, he was back in his office at PSU: the very office that contained the Sandusky file.

Again, assuming Baldwin is telling the truth and Schultz never mentioned the file-for ‘obvious’ reasons, this would have been the most fortuitous break in the entire cover-up.  Schultz now had access to the ‘secret’ Sandusky file with the means and motive to destroy all incriminating evidence that could be used against him and the other PSU officials. 

The only problem is that during those two months back at PSU, with complete access to the ‘secret’ file, Schultz didn’t remove it and he didn’t destroy it. 

We know this because his assistant Kim Belcher testified at the July 2013 hearing that Schultz had called her in November 2011, after he had been charged, and asked her to get his ‘transitory file’ from his office.  She retrieved that file for him and on her own found the Sandusky file. She made a copy of the Sandusky file, accidentally gave the original to Schultz and kept the other copy for herself.  They both turned over their files to the OAG in April 2012. 

Belcher’s testimony, of course, blows holes in Freeh’s claim that his team ‘discovered’ Schultz’s Sandusky file.  Freeh said, “He (Schultz) actively sought to conceal those records. We found them in conjunction with the attorney general. They’re very critical notes, very critical records … it was an active case of trying to conceal evidence, you know. You don’t do that. It’s a dumb thing to do.”

At this point, it is clear, that Freeh did not ‘discover’ anything; the OAG (or Penn State) gave Freeh a copy of the file that Schultz turned over. And, the PSU IT department found and turned over the emails to the OAG who then handed them over to Freeh. The fact that Schultz had the opportunity to alter, remove, and/or destroy his Sandusky file when he was rehired in the fall of 2011 but didn’t, suggests very strongly that he was not protecting a ‘secret’ file, was not concerned about his grand jury testimony, and was not part of some elaborate cover-up.

Based on Schultz’s actions from January-November 2011, there is no evidence that he concealed or wanted to conceal the Sandusky file, just the opposite actually.  And therefore, there is no reason why he wouldn’t have mentioned it to Baldwin.

But, let’s dig deeper.

Vetting Schultz
Now let’s assume Schultz is telling the truth about the file.

In January 2011, Baldwin’s primary directive, ordered by the OAG, was to make sure the PSU officials turned over anything and everything related to Sandusky.

Schultz claims he told Baldwin there may be a file relating to Sandusky in his former office.  According to Schultz, she told him not to look for it.  But, it was her legal obligation to the courts to turn over any evidence disclosed to her.  As an officer of the court (and a former PA Supreme Court Justice) it is hard to imagine that she would shirk her legal duties and not check out every lead the PSU officials told her. Therefore, it is highly likely that she did indeed check for a Sandusky file in Schultz’s former PSU office, then occupied by Al Horvath. If she did, she would have found it, because we now know it was there.

A few days later on January 12, 2011, after meeting with Baldwin, Schultz testified under oath at the Grand Jury hearing.  He was asked:  ‘Do you believe that you may be in the possession of any notes regarding the 2002 incident that you may have written memorializing what occurred?’  

Schultz answered: ‘I have none in my possession.  I believe that there were probably notes taken at the time.  Given my retirement in 2009, if I even had them at the time, something that old would have probably been destroyed.  I had quite a number of files that I considered confidential matters that go back years that didn’t any longer seem pertinent.  I wouldn’t be surprised, in fact, I would guess if there were any notes, they were destroyed on or before 2009.’

In essence, he is saying that notes were probably taken and that he did keep confidential files, but by this point in time, in conjunction with his retirement, they probably were destroyed.

That sounds very similar to what he claims he told Baldwin just days earlier: that there might be a file relating to Sandusky in his former office.

In addition, the following email shows that on January 10, 2011, Baldwin called Wendell Courtney, PSU legal counsel in 2001, after she first spoke with Schultz regarding the subpoena. Courtney tells Schultz that Baldwin asked ‘what I remembered about JS issue I spoke with you and Tim about circa 8 years ago.’  It appears not only did Baldwin know to call Courtney but presumably knew for a fact that he spoke with Schultz back in 2001 regarding Sandusky.  In other words, Baldwin didn’t call Courtney asking if he ‘knew anything about 2001,’ but asked precisely what ‘he remembered’ about the 2001 Sandusky discussion.  



The email also reveals that Schultz and Courtney had recently ‘chatted about this’ 2001 issue.  That makes sense because Courtney was PSU legal counsel in 2001 and Schultz had conferred with him at that time. After being subpoenaed, it is understandable that Schultz would call him regarding the 2001 incident.
It certainly wouldn’t be out of the ordinary for Baldwin to call the former legal counsel from 2001 to ask him what he might have known.  But, the wording in the email comes across as if Baldwin knew for a fact that Schultz spoke with Courtney back in 2001 and she was calling him specifically to ask ‘what he remembered.’

This would suggest that when Schultz spoke with Baldwin and mentioned the possibility of a Sandusky file, that he also mentioned the 2001 discussion he had had with Courtney, especially since Schultz had just recently spoke to Courtney as per the email.

In any event, this email confirms that Baldwin was actively gathering information regarding Sandusky, either on her own or by following up on a lead that Schultz most likely disclosed to her. She also retrieved the 1998 police report around this same time period. If she retrieved the police report and made a call to Courtney, wouldn’t it be logical, as her duty to the court, to follow up on the Sandusky file lead as well?
At this point it appears the truth is in favor of Schultz.  But there is one more analysis I believe shows beyond all doubt that Schultz did indeed inform Baldwin of the file. 

GRAND JURY ANALYSIS

When you analyze the questions the OAG asked Paterno, Curley and Schultz, it seems to be clear that Schultz’s file was in the hands of the OAG, and they were using it as a guide (perjury trap) during questioning.  If the OAG did indeed have this file, it can only mean that Baldwin followed up on Schultz’s lead and retrieved the Sandusky file in his former office, made a copy for the OAG, and returned the original file back to the drawer.

OAG’S KNOWLEDGE AS OF 1-12-11
We need to go back in time and recount exactly what the OAG knew regarding the 2001 Sandusky incident at the time of the Grand Jury hearings of Paterno, Curley and Schultz on January 12, 2011.

At this point in time they had:
·         The 1998 Police Report regarding an investigation of Sandusky with boy(s) in a shower,
·         Mike McQueary’s testimony of the 2001 incident and what he allegedly told Paterno, Curley and Schultz, and
·         Police Interviews with each man.

It is vital to remember that the OAG supposedly does NOT have Schultz’s Sandusky file of notes/emails.
The following chart shows specific OAG questions asked or not asked of each man during the GJ hearing.

GJ QUESTIONS
PATERNO
CURLEY
SCHULTZ
RE: Notes, Memorialization
NONE
NONE
Q Do you believe that you may be in possession of any notes regarding the 2002 incident that you may have written memorializing what occurred?
A I have none of those in my possession. I believe that there were probably notes taken at
the time. Given my retirement in 2009, if I even had them at that time, something that old would have probably been destroyed. I had quite a number of files that I considered confidential matters that go back years that didn't any longer seem pertinent. I wouldn't be surprised. In fact, I would guess if there were any notes, they were destroyed on or before 2009.
Q Are you aware of any memorandums or any written documents, other than your own notes, that existed either at the time of this incident or after this incident about the 2002 events?
A No.
Q Would that be standard? Would that be the way the university operates when an allegation is made against a current employee or a very famous prior employee, that nothing be put in writing?
A The allegations came across as not that serious. It didn't appear at that time, based on what was reported, to be that serious, that a crime had occurred. We had no indication a crime had occurred.

(Paterno)
(Curley)
(Schultz)
RE: Knowledge of any other Sandusky incidents/1998 incident
Q Other than the incident that Mike McQueary reported to you, do you know in any way, through rumor, direct knowledge or any other fashion, of any other inappropriate sexual
conduct by Jerry Sandusky with young boys?
A I do not know of anything else that Jerry would be involved in of that nature, no. I do not know of it. You did mention -- I think you
said something about a rumor. It may have been
discussed in my presence, something else about
somebody. I don't know. I don't remember, and I could not honestly say I heard a rumor.
Q At the time of the incident in 2002, were you aware of any other incidents involving
alleged sexually inappropriate misconduct by Mr. Sandusky anywhere, on university property or otherwise?
A No, ma'am.
Q Since this has come to light, have you become aware of other allegations of inappropriate sexual conduct by Jerry Sandusky on university property or elsewhere?
A Other than what was mentioned this morning.
Q Specifically a 1998 report, did you know anything about that in 2002?
A No, ma'am.
Q But the 1998 incident was never brought to your attention?
A No, ma'am, not that I recall.
Q Have you ever heard -- anything other than what you heard from Mike McQueary, have you ever heard anything at all regarding inappropriate conduct between Jerry Sandusky and young men either on or off campus?
A No.
Q You knew the university police were involved in the 1998 investigation, right?
A Yes.
Q What did you understand the 1998 incident, in a general way, to allege?
A Again, I thought that it had some basis of inappropriate behavior, but without any specifics at all.

Schultz was asked many other questions regarding the 1998 incident.




(Paterno)
(Curley)
(Schultz)
RE: Law Enforcement
NONE
Q Was there a specific conversation about whether or not to go to law enforcement authorities about this?
A At the time I don't recall that because, again, I didn't feel -- at least I didn't feel personally that any criminal activity had occurred. So my thought was that because a young person was there, that I needed to take it to the Second Mile.
Many questions were asked whether or not PSU involved law enforcement in 2002(2001) and Schultz had indicated each time that he thought Child & Youth Services (CYS) was involved in 2001.






ANALYSIS

NOTES: From the chart you can see that the OAG only asked Schultz if he was in ‘possession of any notes memorializing the 2002 incident.’ Schultz said that he was not currently in possession of any notes, that he may have taken some, and if he did they were probably destroyed at this point. Later, they asked him again, ‘Are you aware of any memorandums or any written documents, other than your own notes, that existed either at the time of this incident or after this incident about the 2002 events?’ Schultz said, ‘No.’ They then asked, ‘Would this be standard, not to put something in writing?’

As you can see, only Schultz was asked about notes and he was asked several times. Paterno nor Curley were asked if they had taken notes or memorialized the incident.  That would suggest they had the ‘secret’ file with Schultz’s notes in hand, otherwise they would have asked the other two PSU officials the same standard question about notes.

It is interesting to point out in the second instance, they phrased it, ‘other than your own notes….’  That seems to confirm they indeed were aware of his notes.  Prior to that, Schultz had only stated that he ‘probably’ took notes and ‘if he did’ they were most likely destroyed.  Also, what ‘other documents’ were they asking about?  It must have been the emails that were also in the file in which they appeared to have had.

KNOWLEDGE OF OTHER/1998 INCIDENT: Each man was asked if he was aware of any other incident (besides 2001) that would have involved inappropriate sexual misconduct of Sandusky with young boys. Remember, the OAG had the 1998 police report detailing the 1998 investigation, but none of the PSU men are mentioned in the report so the OAG would not know whether these men knew about 1998 or not.  Schultz acknowledged he knew about 1998 but not the specifics.  Paterno said he was not aware but maybe heard a rumor but could not say for sure.  The OAG did not question Paterno any further on that. 

However, when Curley was asked whether he was ‘aware of any other incidents,’ he said, ‘No.’ He was again asked, ‘Since this has come to light, have you become aware of other incidents?’ Curley seemed confused and they further asked, ‘Specifically, a 1998 report. Did you know anything about that?’  Curley again answered, ‘No.’ Again, he was asked, ‘But the 1998 incident was never brought to your attention?’ he said, ‘No.’ And yet again, he was asked, ‘Have you ever heard anything, other than from Mike McQueary, about inappropriate conduct between Sandusky and young men?’ he answered, ‘No.’

The comparison of questions re the 1998 incident between Paterno and Curley is eye-opening.  Paterno was asked once, says he was not aware of anything else, and they moved on.  Curley was grilled over and over five times regarding this prior Sandusky incident.  The only information they supposedly had at the time would not lead them to believe Paterno or Curley were aware of 1998, so why was Curley grilled? 

Schultz’s notes indicate that Schultz reviewed the ‘1998 history’ with Curley on 2-12-01.  This is the only piece of information at the time that would indicate Curley possibly knew of the 1998 incident.  Again, this line of questioning suggests the OAG had Schultz’s notes during the January 12, 2011 hearing.

LAW ENFORCEMENT: From the chart you can see that Paterno was not asked about involvement of any law enforcement regarding the 2001 incident.  Schultz was asked many times and answered each time that he thought CYS/DPW was involved. 

Curley was asked, ‘Was there a specific conversation about whether or not to go to law enforcement authorities about this?’  He said that he ‘did not recall a conversation.’ This may be a standard question to ask, but why wasn’t Paterno asked?   Schultz’s notes/emails indicated that ONLY Schultz and Curley developed a plan to 1) Tell the Chair of the Second Mile, 2) Report to Dept. of Welfare (DPW), 3) Tell Sandusky to avoid bringing children into Lasch Building.  Therefore, if the OAG had these notes, then they knew that Paterno was not necessarily privy to this plan and hence no questions were asked.  The fact that only Curley and Schultz were asked about law enforcement strongly suggests they indeed had Schultz’s notes (i.e. the ‘secret’ file).

PERJURY CHARGES
However, what seems to be even more evidence that the OAG had this file (from Baldwin) in January 2011, came on March 30, 2012.  The Commonwealth (OAG) issued Statements of Perjury which outlined what they believed were perjurious statements by Curley and Schultz from their Grand Jury testimonies.

CURLEY PERJURY CHARGES
From the above chart, regarding the question to Curley re ‘Law Enforcement’, the OAG declared Curley’s answer to be perjurious.



Remember, Schultz’s file was not turned over to the OAG (by Schultz and Belcher) until April 2012, so how could this statement be determined perjurious on March 30, 2012?  

There was absolutely no other corroborating evidence that supported Curley knowing of a ‘specific conversation about going to law enforcement or not.’

The OAG by this time (3-30-12) did have the 1998 and 2001 emails from the IT department.  But, the only email from 2001 (from IT dept.) that mentions the steps taken regarding Sandusky was the following 2-28-01 email:



There are references to ‘the other one’, ‘the two groups’, and ‘the other organization.’  However, without the benefit of Schultz’s notes, these references have no specific meaning and, even so, do not corroborate ‘law enforcement.’

However, what is more telling comes from Ray Blehar’s disclosure of Rodney Erickson’s notes from January 31, 2012 in which then PSU President Erickson discussed getting copies of ‘notes- Curley + Schultz.’ 



Clearly, this January 31, 2012 entry proves Schultz’s notes were known well before they were turned over by Belcher and Schultz in April 2012.  The only other person with knowledge of such notes would have been Baldwin, who most likely, as proven now, gave a copy to the OAG and (likely) Freeh.

This perjury charge re Law Enforcement is a strong indication that Law Enforcement was actually part of the discussion/evidence between Curley and Schultz that we have not seen.  Was this charge based on another email or note from Curley or Schultz that has been suppressed?  If Baldwin did remove the file in January 2011, she could have excluded pieces of the file that she put back in the drawer -- but gave the full file of evidence to OAG/Freeh.

And, if such an email or note exists, it means that going to law enforcement was actually discussed since they charged Curley with perjury on this question. If so, it is likely the email/note mentioned that Schultz or Curley reported the incident to Tom Harmon, Director of University Police, i.e. law enforcement. 

Remember, Harmon had emailed Schultz the day after Paterno reported the 2001 incident to Curley and Schultz (to alert Schultz about the 1998 police report).




According to the testimony of Harmon, Schultz did NOT contact him about the 1998 file. However, Harmon also testified that Schultz never told him about the 2001 incident, so what caused Harmon to email Schultz about the 1998 police report?  And what is the truth?

According to another blog post from Blehar, he identified an end note from the Freeh Report of a still unknown, unseen communique between Schultz and Harmon:

End Note 304:  Schultz confidential file note (5-1-12).  This is a reference from the report: “On February 12, 2001, Schultz also asked Penn State Police Chief Tom Harmon if a police file still existed for the 1998 event.” 
If this request was simply for the 1998 file, why wasn't it included in the Freeh Report like the email above from Harmon?  What other information did it contain?  Perhaps Schultz did inform Harmon of the 2001 situation before asking about 1998.  That would be entirely logical - and would actually have resulted in a perjury charge for Harmon.

This document may be one of the pieces of information the BOT is trying so hard to protect -- or should I say "conceal?"

SCHULTZ PERJURY CHARGES


Also in that filing of Perjury Particulars on March 30, 2012, were Schultz’s alleged statements of perjury from the OAG.
 In this specific citation, the OAG is alleging that Schultz lied about ‘knowing specifics’ of the 1998 incident.  The only corroborating documents that detailed Schultz’s specific knowledge of the case were in his Sandusky file.  They were his handwritten notes that detailed the 1998 incident.  No other evidence they had at the time would support this perjury charge except for his notes-that supposedly weren’t turned over until April 2012.

(Again, the information from Schultz’s file does not necessarily support perjury, these men testified 10 years after the incident without any review or discussion to refresh their memory.)

REVIEW OF REPRESENTATION

Remember, Baldwin is the same lawyer who represented Schultz, Curley, and Spanier at their Grand Jury hearings.  She now claims she was only representing PSU and not the individual PSU officials.  However, according to a legal expert, her claims of only representing PSU don’t actually matter.

Jason Pelt, defense attorney and former Marine JAG prosecutor, told me, “When it comes to representation, it does not matter who Baldwin believed she was representing, it only matters if the individuals believed she was representing them.”

It is clear that Curley, Schultz and Spanier believed she was representing them.  We know this because only their attorney can be present during testimony and she was indeed present. In addition, each man verbally identified ‘Cynthia Baldwin’ to the court when the judge asked, ‘Are you represented by counsel?’
 
Although she now contends she was only representing PSU and not the individuals during their respective hearings, why wasn’t she representing PSU during Paterno’s testimony, when Paterno had his own legal counsel?  Simple answer: she was not allowed to be present with Paterno because only the witness’s attorney is allowed to be present during questioning.

Why the back peddling from Baldwin?  Perhaps because of her blatant conflict of interest and possible malpractice before the court regarding Schultz’s file.

Regardless of her legal spin, she was indeed representing Schultz, Curley, and Spanier, as evidenced by her actions with them before the hearings, her court appearance with them during the hearings, and their verbal identification of her as their attorney which she did not object to or correct. 

MOST PROBABLE SCENARIO

After vetting the statements of Baldwin and Schultz, it appears the most likely scenario is that Schultz did indeed tell Baldwin of a possible Sandusky file and that she retrieved it and gave a copy to the OAG.

So what does this mean?

First of all, if true, it means that Baldwin not only had an obvious conflict of interest regarding client-attorney privilege, but also has a liability issue.  Pelt explained that, “Baldwin would be liable if Schultz’s position was made worse or if the information was used against him toward his detriment.”  He said, if true, she is facing ethical issues and possible disbarment from the Pennsylvania Bar Association.

Secondly, if true, it means Baldwin committed perjury at her Grand Jury hearing on October 26, 2012.
Finally, if the OAG knew she was lying and allowed the perjured testimony, then more ethical issues come into question and produce major legal problems for the OAG and Baldwin.  Pelt added, “If the OAG used Baldwin to get information on her clients to be used against them, then that evidence could be suppressed at trial.”

CHARGES REVISITED

Remember, the initial charges filed in November 2011 were Perjury and Failure to Report, wherein:
1)  Perjury was based only on Curley and Schultz's testimony that they were not told of sexual abuse by McQueary; and,
2)  Failure to Report would have had to occur on or after November 5, 2001 to keep within the 10 year statute of limitations.

Based on the above analysis, it is likely that the initial perjury charges were not based on McQueary’s ‘credibility’ but rather on the notes and emails found in Schultz’s file.

Regarding the Failure to Report, if the OAG had Schultz’s Sandusky file in January 2011 then they clearly knew the McQueary incident happened in February 2001 and NOT March 2002. That would mean that the 10 year statute of limitations for Failure to Report (FTR) had expired in February 2011. By November 2011, this charge was no longer enforceable. 

It appears the OAG used the date of March 2002 as a ruse in order to keep FTR within the 10 year time frame in order to charge the men in November 2011, along with Sandusky.  After all, charging the PSU officials the same day as charging Sandusky helped give birth to the false narrative that Penn State was to blame for Sandusky’s crimes.

In essence, the ONLY way for the OAG to charge Curley and Schultz with perjury would have been with the benefit of Schultz’s notes and the ONLY way to charge them with Failure to Report in 2011 was to PRETEND they did not have his notes and then choose the 2002 date (over the correct 2001 date) provided by Mike McQueary.

PSU/BALDWIN/OAG/FREEH WIN, FOR NOW….

Imagine if Baldwin did indeed hand over Schultz’s Sandusky file to the OAG in January 2011. Imagine all the legal malpractice taking place at the hands of those entrusted to uphold the law. How could they possibly get away with it and cover it up? Answer: Hire a man to ‘discover the secret file,’ write a scathing report of a cover up, and hope that one or both men plead guilty or that one man flips on the other.  Under a guilty plea or flip scenario, NO EVIDENCE is really needed because the case can be decided on testimony alone. 

But what would cause such a scenario to occur?

Welcome to the Freeh Report.

The Freeh Report has been the gift that keeps on giving and appears to have protected everyone with an agenda.
1) The PSU Board of Trustees (BOT) paid Louis Freeh to write an ‘independent investigative report’ that justified their firing of Joe Paterno and Graham Spanier. (PSU scores)
2) Freeh received $8 million for writing this ‘report’ that was spoon fed to him from the OAG. (Freeh scores)
3) The PSU BOT in conjunction with the OAG, I believe, used Freeh to ‘discover’ Schultz’s ‘secret file’ to protect the OAG, Cynthia Baldwin, and Penn State from legal malpractice. (PSU, Baldwin, & OAG score)
4) Freeh returns favor to OAG and convicts Curley, Schultz, and Spanier in the court of public opinion. (OAG scores)

Yes, these entities may be winning for now, but it is only a matter of time before the celebration ends. And that time is drawing near.

BUT, THE FINAL VICTORY WILL BE OURS

Just recently, on July 20, 2015, the judge ordered the release of the Freeh documents.  Finally, the light will be shed on the truth.  This is a great victory for the Paternos, the alumni trustees, and the entire Penn State community.

I truly believe the Schultz file is one major reason why PSU and Freeh have been relentless in fighting the Paternos and the alumni trustees for the release of the Freeh documents.  I believe the truth about Schultz’s file will reveal the malpractice and total lack of integrity of Cynthia Baldwin, the OAG, Freeh, and Penn State’s own Board of Trustees─ or the, Not So Fab Four.

It’s hard to agree with anything Freeh has ever said, but in this case I think his own words will soon come back to haunt him and his Not So Fab Four cohorts:  

“It was an active case of trying to conceal evidence, you know. You don’t do that. It’s a dumb thing to do.”