Cynthia Baldwin

Penn State counsel Cynthia Baldwin during a Penn State University board of trustees meeting at the Nittany Lion Inn in State College. Baldwin's testimony to a grand jury in October 2012 was unsealed this week.

(PennLive.com | File)

Court documents unsealed this week in the case against three former Penn State administrators shed light on why state prosecutors think they can preserve the hotly disputed testimony of former Penn State counsel Cynthia Baldwin.

It's in part because, in more than two hours of closed-door questioning on Oct. 26, 2012, they tried to build a firewall around any work Baldwin did some 21 months earlier in prepping then-PSU Athletic Director Tim Curley and former senior vice president Gary Schultz for their own grand jury appearances.

Baldwin, in her testimony, spoke at length about her early efforts to get Penn State administrators to cooperate with the state Attorney General's requests for all information pertaining to then-alleged, now-convicted child molester Jerry Sandusky, a one-time icon of the university's vaunted football program.

They gave her nothing, she said.

She talked at length about her efforts to keep former Penn State President Graham Spanier informed on every detail she could glean about the unfolding investigation.

She savaged Spanier's public counter-offensive after the university-commissioned Freeh Report was issued in July 2012, revealing new evidence of alleged attempts by the three administrators to keep Sandusky's problems from going public.

But nowhere in the 75 page-transcript does Baldwin directly discuss the days she spent accompanying Curley or Schultz to interviews with state agents or their subsequent grand jury testimony, other than an assertion that Spanier - in earliest discussions of the subpoenas - decided that Baldwin should accompany them to their grand jury appearance.

"There was no doubt that I was representing the Pennsylvania State University and because they were agents of the university, I mean, very high officials, that I would, yes - that he [Spanier] said; 'You will go in with them,'" Baldwin stated.

Baldwin’s status as a prosecution witness is pivotal in the pending criminal case against Spanier, Curley and Schultz.

The trio is accused of lying under oath about what they knew and how they responded to 1998 and 2001 allegations that Sandusky had sexually abused boys on campus facilities.

The controversy comes because all three say they believed Baldwin was representing them when they testified before the state grand jury investigating Sandusky in 2011, and that if she wasn't, she shouldn’t have been permitted to be present for their testimony.

If Dauphin County Judge Todd Hoover accepts that the defendants' right to conflict-free counsel was violated with Baldwin now poised as a witness for the prosecution, he could order that their own testimony before the grand jury be suppressed at trial.

That would almost certainly kill the perjury charges against them, since one of the core elements of perjury is that the lie occurred under oath. The grand jury session is the only time any of the three defendants have testified under oath.

In the alternative, the defense asks that if Hoover found Baldwin gave the Penn State Three adequate representation, attorney-client privilege - which none of the defendants have waived - should bar her from testifying against them.

In Baldwin’s grand jury testimony — given days before Spanier, Curley and Schultz were charged with perjury, obstruction of justice, endangering the welfare of children, failure to report child abuse and conspiracy — prosecutors make clear that Penn State, whom she consistently claimed as her primary client, has waived its own attorney / client privilege.

That gave Baldwin, who served as university counsel from February 2010 through June 2012, wide latitude to speak about the university’s response to the Sandusky probe, which ran throughout that time period.

The only carve-out was any reference to her work with Schultz or Curley in preparation for their grand jury appearances the year before.

“We are willing to put Miss Baldwin in the grand jury without addressing any of the issues related to the testimony of Mr. Schultz and Mr. Curley and conversations that she had with them about that testimony," then-Chief Deputy Attorney General Frank Fina proposed before Baldwin took the stand.

That approach was immediately affirmed by Michael Mustakoff, an attorney then leading Penn State's cooperation with the Sandusky probe, and Charles De Monaco, a Pittsburgh attorney representing Baldwin.

Judge Barry Feudale, then the supervising judge of the Sandusky grand jury, agreed.

What followed were two hours of testimony in which Baldwin largely described a Penn State administration where, as previously spelled out in the Attorney General's "conspiracy of silence" presentment, she claimed she worked diligently to get information to Spanier about the Sandusky probe and related requests for information.

“The running joke in Old Main was that I had my own path up the stairs and across the rug to Graham’s office," Baldwin said. "Everything that I knew I was passing on to him so that he would be aware of everything that was going on with this particular matter.”

In time, she told prosecutors, she came to feel that she had been deceived by Spanier and his two top aides, including revelations in the Freeh Report that showed emails and other documents produced by the three leaders about Sandusky that weren’t passed along to investigators during the first phase of the probe.

“He lied to me,” she told Fina at one point, referring to Spanier.

The new grand jury transcripts were unsealed as part of creating a record for Hoover to review as he considers the former administrators’ bid to have charges that they tried to cover-up Sandusky’s sexual violations dismissed. In addition to Baldwin's testimony, PennLive obtained an unsealed transcript of Spanier's testimony from April 2011.

Baldwin’s status is central to the prosecution's case, but it is not its only tool.

There are multiple other witnesses who testified at a preliminary hearing this summer, from former assistant football coach Mike McQueary, who directly told Curley and Schultz about a 2001 Sandusky assault, to former secretaries speaking about "secret" files that weren't initially turned over.

Legal observers reached Tuesday night had mixed opinions about the prosecution’s strategy with Baldwin.

Duquesne University School of Law professor Wes Oliver noted prosecutors could be helped by Baldwin’s representation to Feudale before Spanier’s grand jury testimony in April 2011 that she “represented the university solely.”

And Baldwin's attorney, De Monaco, maintained as recently as Tuesday that his client was always Penn State's lawyer, and represented the administrators "as agents conducting university business so long as their interests were aligned with the university."

But Oliver said he believes a critical question for Hoover is still to what degree the three defendants understood that distinction.

The testimony unsealed Tuesday night did little to clarify that question.

Minutes after Baldwin’s representation to Judge Feudale that she represented Penn State solely, Spanier entered into the grand jury room and, just like Curley and Schultz before him, identified Baldwin as his lawyer.

“Sir, you’re represented by counsel today?,” Feudale asked.

“Yes,” Spanier responded.

“Could you just identify counsel?” the judge continued.

“Cynthia Baldwin sitting behind me,” Spanier said.

Graham Spanier grand jury testimony (colloquy) from April 13, 2011. by PennLive

Graham Spanier grand jury testimony from April 13, 2011 by PennLive

Cynthia Baldwin grand jury proceedings October 22, 2012 by PennLive

Cynthia Baldwin grand jury transcript from October 26, 2012 by PennLive