State prosecutors claim that the lawyer who represented two top Penn State administrators before the grand jury investigating the Jerry Sandusky abuse scandal last year did not have a conflict of interest.
Prosecutors made that representation in response to motions by former senior vice president for business and finance Gary Schultz and athletic director Tim Curley asking that the charges against them be dismissed because they were not adequately represented when they testified.
Penn State's former general counsel, Cynthia Baldwin, accompanied both men to their appearances before the grand jury on Jan. 12, 2011.
In their motion, the defendants claimed that they believed Ms. Baldwin was representing them when they testified, but according to an interview with investigators for the Freeh report, Ms. Baldwin claimed she told them she was representing the university.
The men, who now face additional charges including conspiracy, endangering the welfare of children and obstruction of justice, said if she was representing Penn State as an institution, Ms. Baldwin had a conflict of interest.
The prosecution, in a 28-page filing Wednesday, disagreed.
"Based on their interviews prior to testifying, it appeared that the defendants intended to cooperate in the investigation," the attorney general wrote. "Such an action would not conflict with the interests of the other witnesses represented by Attorney Baldwin, who also were cooperating."
For that reason, prosecutors wrote, they had no reason to question Ms. Baldwin.
"Simply stated, multiple representation does not necessarily amount to a conflict of interest, and so multiple representation is permitted. ... And it is defense counsel and the supervising judge who are primarily charged with recognizing a conflict of interest and remedying the situation."
Ms. Baldwin's attorney, Charles De Monaco, would not comment specifically on the defense allegations, but said: "Cynthia Baldwin, as evidenced by her distinguished career and her impeccable reputation, is a person of the highest integrity. The suggestion by anyone that Ms. Baldwin did not fulfill her ethical and professional duties to The Pennsylvania State University and its agents and administrators is untrue."
In its response, the prosecution also argues that neither Curley nor Schultz, at the time of their grand jury testimony, had the right to counsel, because they had not been charged with a crime and were not in custody.
"Effectively, the defendants' argument amounts to a contention that appearing before a grand jury with conflicted counsel allows a witness to lie to the grand jury. No legal authority is cited for such a proposition because no such authority exists."
In addition to its answer on the question of a conflict, the prosecution claims in its response that the defendants' motion should not even be filed with the trial court, but instead with the supervising judge of the grand jury.
The attorney general's filing also discounts the defendants' allegation of prosecutorial misconduct.
"[T]here cannot have been an instance of prosecutorial misconduct. Nothing alleged by the defendants remotely touches upon the fairness of the (yet to be conducted) trial," prosecutors wrote.
Paula Reed Ward: firstname.lastname@example.org or 412-263-2620.