Penn State's general counsel cited for missteps
A former state Supreme Court justice who served as Penn State University's general counsel during the grand jury investigation of Jerry Sandusky was singled out repeatedly in the report issued by Louis Freeh last week for possible missteps in her handling of the matter.
Cynthia Baldwin cooperated with the special investigation, providing not only interviews but documents as well. She was Penn State's interim general counsel from January 2010 until she stepped down June 30.
According to the Freeh report, Ms. Baldwin never sought an expert to lead the university through the criminal investigation or its own internal investigation, and she, along with former President Graham Spanier, appeared to downplay to the university board of trustees the significance of the grand jury investigation.
Legal scholars contacted by the Pittsburgh Post-Gazette all said the Freeh report reflected badly on Ms. Baldwin.
"Most of it is incompetence, not malevolence," said Duquesne University law professor Bruce Ledewitz.
The biggest question to him, though, was who Ms. Baldwin was representing before the grand jury that was investigating Mr. Sandusky and ultimately recommended charges against him, and former Senior Vice President Gary Schultz and athletic director Tim Curley.
According to Ms. Baldwin's interview with the Freeh investigators, she attended the grand jury testimony of Mr. Schultz and Mr. Curley on Jan. 12, 2011.
"Baldwin told the Special Investigative Counsel that she went to the grand jury appearances as the attorney for Penn State, and that she told both Curley and Schultz that she represented the university and that they could hire their own counsel if they wished."
However, according to the transcript from the grand jury, both men said they believed Ms. Baldwin was representing them.
"You have counsel with you?" the prosecutor asked Mr. Curley.
"Yes, I do," he answered.
"Would you introduce her, please?" the prosecutor continued.
"My counsel is Cynthia Baldwin."
Mr. Schultz said the same when he was questioned.
"You are accompanied today by counsel, Cynthia Baldwin, is that correct?" the prosecutor asked.
"That is correct," Mr. Schultz answered.
Ms. Baldwin, who was appointed to the Supreme Court in 2005 and served until elections filled the seat in 2008, also attended Mr. Spanier's grand jury testimony, again explaining that she represented the university.
Legal experts, though, question Ms. Baldwin's attendance, saying that as a representative of the university, she had no business at the grand jury, since Penn State, at the time, was not a party to the criminal investigation.
"The most significant matter in terms of ethics is what happened in the grand jury room," Mr. Ledewitz said. "The first thing you learn in legal ethics is to know who the client is."
If Ms. Baldwin's intent was to attend as a representative of the university, Mr. Ledewitz said, it was her obligation to correct both Mr. Schultz and Mr. Curley when they said she represented them.
"It's not the kind of error a Cynthia Baldwin could make," Mr. Ledewitz said. "I don't have an explanation.
"It's not a close call. It's the rule, period. Every experienced lawyer knows when there is an institution and an individual, you have to clarify who you're representing."
Bruce Antkowiak, a former federal prosecutor who now is a law professor at St. Vincent College, said it surprised a lot of lawyers in the criminal defense bar when they learned Ms. Baldwin attended the grand jury.
Occasionally the general counsel for a company or institution will represent a CEO at a grand jury, he said. But if other officials are summoned for testimony, additional attorneys are secured to represent their individual interests.
"In one sense, I'm wondering why the attorney general's office at that time did not raise that question: Who do you represent?" Mr. Antkowiak said.
Charles DeMonaco, the attorney representing Ms. Baldwin, would not answer specific questions about his client and the details of the Freeh report. Instead, he simply said that she cooperated fully with the investigation.
Mr. Ledewitz said that as general counsel, the attorney's job is to represent the best interests of the institution, not any one individual.
In this case, Ms. Baldwin should have been representing the board of trustees, Mr. Ledewitz said, although there is some indication in the Freeh report that her directions were coming from Mr. Spanier.
According to the document, Ms. Baldwin and Mr. Spanier tried to downplay the seriousness of the Sandusky grand jury investigation to the board, and indicated it did not involve the university, even though four senior Penn State officials had been called to testify.
Later, when a trustee asked about having an independent investigative team appointed for the Sandusky issue, Ms. Baldwin emailed Mr. Spanier and said, "[if] we do this, we will never get rid of this [independent investigator] in some shape or form. The board will then think that they should have such a group."
"Reading between the lines, it looked like Spanier wanted to share as little as possible with the board," Mr. Ledewitz said. "You can't defend keeping information away from the board in these circumstances. Even if she was told to do that by the president of Penn State, she had to make an independent decision of what did the board need to know."
It goes even further, he continued.
"If you get instruction that doesn't reflect the best interest of the institution, you have to ignore it," Mr. Ledewitz said. "Of course, then you get fired."
Timothy K. Lewis, who represents Mr. Spanier, said that while the Freeh report contains information that is helpful, there also is some that is "demonstrably inaccurate."
"My client ... is many things, but a lawyer is not one of them. With respect to the Board, Dr. Spanier's briefings concerning Sandusky and the investigation were monitored by the general counsel of the university, who also advised him how much and how little he should disclose, in part based upon the fact that he had testified before the state grand jury. There is more, but that is all we have to say at this time."
In addition to Ms. Baldwin, Penn State's former outside counsel also is mentioned multiple times.
Wendell Courtney worked for the university from 1980 to 2010, and also represented Jerry Sandusky's charity, The Second Mile, from 2008 to 2011.
He refused to talk to the Freeh investigators on the advice of counsel. He also did not return a phone call seeking comment from the Post-Gazette.
Among the answers the investigators would have sought, the report said, was an "explanation about the legal work he performed on Feb. 11, 2001" -- two days after then graduate assistant Michael McQueary saw Mr. Sandusky sexually abusing a young boy in the football locker room showers.
According to a time sheet attached to the Freeh report as an exhibit, Mr. Courtney billed 2.9 hours on that date for "Conference with G Schultz re reporting of suspected child abuse; Legal research re same; Conference with G Schultz."
There were other references to Mr. Courtney in the report, as well, including an email exchange between him and Mr. Schultz as the grand jury investigation was heating up.
"Baldwin advised the special investigative counsel that, unknown to her at the time, Courtney emailed Schultz on Jan. 10, 2011," the Freeh report said. "In Courtney's email to Schultz he reported that: Baldwin 'called me today to ask what I remembered about JS issue I spoke with you and Tim about circa eight years ago.' In the email Courtney said he told her what he remembered, and added that Baldwin 'did not offer why she was asking, nor did I ask her. Nor did I disclose that you and I chatted about this.' "
Mr. Ledewitz said that in circumstances such as these, former counsel and current counsel are obligated to share everything and cooperate -- again with the idea of working in the best interest of the institution.
"I can't think of any motive for keeping Cynthia in the dark about anything," he said.
Correction/Clarification: (Published July 17, 2012) The Freeh report on Penn State's handling of the Jerry Sandusky sex abuse case said that the university's general counsel, Cynthia Baldwin, did not contact any outside attorney with an expertise in criminal or internal investigations, as of Dec. 28, 2010. The report contains no information as to whether Ms. Baldwin retained counsel for that purpose at any time after that. A story Sunday incorrectly characterized a Freeh report statement on the matter.
First Published July 15, 2012 12:00 am