Judge Bars, for Now, Testimony in Penn State Hearing

, The Legal Intelligencer


A judge on Tuesday directed prosecutors and lawyers for three former Penn State administrators to make their cases in writing as he weighs claims that the defendants' legal rights were so badly violated that charges they covered up child sex-abuse allegations should be thrown out.

Dauphin County Judge Todd Hoover ruled that the defendants could not call to the stand Cynthia Baldwin, who accompanied the men to grand jury appearances in 2011 and then testified against them. Baldwin, a former state Supreme Court justice and university trustee, was Penn State's top lawyer at the time, and the defendants believe she violated attorney-client privilege.

Hoover told the lawyers to submit proposed findings of fact and legal conclusions, after which he will schedule a hearing so they can argue the issues. The judge also indicated he would unseal records in the case, but courthouse officials said afterward no new documents were immediately available.

In a video of the press conference posted on a Harrisburg-based news website, former university president Graham Spanier's attorney, Elizabeth Ainslie of Schnader Harrison Segal & Lewis, said that the subpoenas were quashed "at least for the time being." She added that Hoover said the witnesses were unnecessary at the present time.

Ainslie told reporters in the video that she believed Hoover indicated he was not taking up issues of attorney-client privilege during the immediate proceedings. The judge wanted to limit the initial considerations to the written records of the conversations, Ainslie said in the video.

It is possible that there will be another hearing, at which time the defendants can subpoena the witnesses again, Ainslie said.

She declined at the press conference to discuss what exculpatory testimony she hoped to elicit from Baldwin.

Spanier, former vice president Gary Schultz and former athletic director Tim Curley are accused of covering up child sex-abuse complaints about former assistant football coach Jerry Sandusky. They face charges of perjury, obstruction, conspiracy, child endangerment and failure to properly report suspected child abuse.

The 20-minute proceeding had been scheduled to last four days, but there was a three-hour closed-door conference Monday during which Hoover also quashed a subpoena issued to Frank Fina, a former state prosecutor who was involved in the grand jury proceedings.

Another subpoena, issued to former state prosecutor Jonelle Harter Eshbach, was quashed by Hoover on Tuesday. Defense lawyers listed the documents the judge will consider, including grand jury transcripts and correspondence among the attorneys.

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