Criminal Practice

Could Baldwin's Role Doom Case Against PSU Officials?

, The Legal Intelligencer

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Cynthia Baldwin

Analysis

If three ex-Penn State administrators facing charges stemming from failing to properly deal with reports of child sexual abuse by Jerry Sandusky are found to have appeared before a grand jury without proper advice of counsel, their testimony could be incurably affected and even tossed, several white-collar defense attorneys have said.

Although the attorneys who spoke with the Law Weekly noted that they are not familiar enough with the specifics of the case to say exactly what is likely to occur, several said that if a court determines that the defendants believed they were appearing under the advisement of counsel, when in fact the attorney only represented the university, the testimony could potentially be inadmissible for cross-examination and could even be thrown out as a violation of their due process rights.

For Ellen C. Brotman of Montgomery McCracken Walker & Rhoads, confusion as to whether a testifying party was represented by counsel could arguably constitute violations of the testifying party's Fifth or Sixth Amendment rights.

"A grand jury can have a defect that nullifies it," Brotman said. "Could this be that kind of defect? I think it could be."

David M. Laigaie, of Eckert Seamans Cherin & Mellott, said a lack of clarity could cause a grand jury to be "incurably affected," and could cause the defendants to seek that the charges be dropped.

"At minimum, it's problematic," said Henry E. Hockeimer Jr. of Ballard Spahr. "Whether or not it's a clear violation, that's up to the process."

At issue is the representation of former university President Graham Spanier, Vice President Gary Schultz and former athletic director Tim Curley, all of whom were charged with 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. The three have argued that they believed they were being represented by Penn State's attorney at the time, Cynthia Baldwin.

Baldwin, a former state Supreme Court justice, accompanied the three into grand jury proceedings in 2011 that were part of the investigation into Sandusky's activities. Baldwin later testified against the three during 2012 grand jury proceedings.

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

Baldwin's attorney, Charles De Monaco of Fox Rothschild, however, said his client's role was clear, and that she properly handled the defendants' representation both before and after the grand jury proceedings.

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