She was Cynthia Baldwin, in-house legal counsel for Penn State University. It is reflected in the transcript of their testimonies: “Good morning, my name is Tim Curley.” “Do you have counsel with you?” “Yes I do. … My counsel is Cynthia Baldwin.” Schultz was asked: “You are accompanied today by counsel, Cynthia Baldwin. Is that correct?” “That is correct.” But Baldwin says she was not representing either man, according to Lanny Davis, the high-profile Washington lawyer hired to represent Penn State in the wake of the Sandusky scandal. Instead, Davis said, Baldwin was in the grand jury room Jan. 12, 2011, strictly on behalf of the university, and not as legal counsel for Schultz and Curley. Legal experts say Baldwin’s role before the grand jury could affect the case or Baldwin personally. And the question remains: How could confusion reign about something so fundamental to the judicial system? Why was Baldwin allowed in the grand jury room if she was only representing Penn State?
- Baldwin says it was all a big misunderstanding — that Schultz and Curley were simply mistaken, according to Davis.
“I believe, having looked into the overall situation, this can be explained by the innocent reality of misunderstanding, stress and incomplete information,” Davis said Wednesday. Davis agreed “it is unusual for a lawyer to be present at a grand jury.” But, he said: “At a state grand jury in Pennsylvania, it is up to the discretion of the judge to permit a lawyer to be present. The judge asked Cynthia, ‘Who are you representing?’ She said the university. And he said, ‘You may listen if you wish.’ She said, ‘Thank you.’ ” David added, “As general counsel, she felt a responsibility to represent and understand — for the university’s interests — their testimony.”
- Then-head coach Joe Paterno appeared before the grand jury the same day with Joshua Locke as his counsel. Baldwin was not there. If she felt responsible to understand the testimony from Curley and Schultz on behalf of the university, why didn’t Baldwin feel the same about Paterno?
“Curley and Schultz were senior officers, they were members of the administration,” Davis said. “She felt it was her responsibility because she represented the university as general counsel.” By contrast, Paterno “was not a member of the administration.” Davis said she also noted that Paterno was with two attorneys — his son Scott Paterno and Locke.
One year later, Penn State is working to recover from the scandal that led to the ouster of Paterno and former President Graham Spanier. Sandusky awaits trial on charges of sexually abusing 10 young boys, including two allegedly assaulted in the football building on campus. Curley and Schultz stand charged with failure to report Sandusky to the proper authorities and lying to the grand jury. All three men maintain their innocence. Baldwin, a former Pennsylvania Supreme Court justice, would not comment for this story, but authorized Davis to speak for her. The confusion over her role began in December 2010 when Baldwin received the grand jury subpoenas for Curley, Schultz, Spanier and Paterno. Davis said Baldwin accepted them “as a common courtesy” and agreed to deliver them to the four men. Curley and Schultz came to her office separately to pick up their subpoenas. According to Davis, Baldwin said she then told each man: “You know, I represent the university. You can get your own lawyer.” With that, Davis said, Baldwin believed she had fulfilled “what she believed her obligation is.”
After Baldwin informed Paterno of his subpoena, according to Davis, she gave his son Scott the same message — that she represented the university and the coach could get his own lawyer. “We have a different understanding of the process by which Coach Paterno engaged legal counsel,” said Wick Sollers, the Paterno family’s lawyer. Sollers said the family did not want to elaborate further while grieving the loss of Paterno, who died of complications from lung cancer on Jan. 22. Curley and Schultz did not get an outside lawyer for their grand jury testimony. Weeks after handing them their subpoenas, Baldwin drove Curley and Schultz to Harrisburg for their grand jury appearance — again “as a courtesy,” Davis said, since she was attending on behalf of the university. The three arrived together: Baldwin, Schultz, who was Penn State’s vice president for finance and business, and Curley, who was Penn State’s athletic director. They went in together. Curley and Schultz met with no other attorneys at the offices of the attorney general in Strawberry Square where the grand jury met. When Baldwin signed in, Davis said, she signed in as representing Penn State. Before the grand jury began, the witnesses and attorneys went into Judge Barry Feudale’s chambers. (A judge does not preside at a grand jury, but swears in witnesses beforehand.) In chambers, Davis said, Feudale asked Baldwin whom she represented. “The Penn State University,” Davis said she replied. Then, Davis said, Baldwin walked into the grand jury room. She did not seek special permission as an outside observer for an interested party — in this case, Penn State — Davis said. She simply received the judge’s okay and walked in, according to Davis. As Curley and Schultz each began, they stated on the record that they were accompanied by “counsel” or “my counsel” Cynthia Baldwin, who sat with each as they testified. Davis said Baldwin “does not remember hearing” those answers. Even if she had, Davis said, “at that moment in time, she would not feel it appropriate to speak up and correct it with witnesses being questioned.” Davis said she would have remained silent in the moment out of deference to the grand jury process. Did Baldwin talk to the two men later — for example, during their 90-minute ride together back to Happy Valley — to clarify her role? “She said no,” Davis said. In other words, the series of events, as described by Baldwin through Davis, played out like this:
• December 2010: Baldwin tells Curley and Schultz she “represents the university” and they can get their own attorneys.
• January 2011: Baldwin drives them to the grand jury. On the trip, the three apparently do not discuss the investigation or who will represent the two men.
• In the judge’s chambers: After Baldwin announces she is representing Penn State, she is simply allowed to walk into the grand jury room to listen to the testimony of Curley and Schultz even though she has not said she represents them.
• In the grand jury room: Baldwin doesn’t remember hearing Curley and Schultz identify her as counsel. Baldwin skips Paterno’s testimony.
• On the drive home: The subject of representation doesn’t come up.
‘A DUTY TO CLARIFY’
Questions about Baldwin’s role were first raised in a Patriot-News story on Nov. 19, two weeks after Sandusky, Curley and Schultz were indicted. The story referred to Baldwin’s apparent “dual representation” of the men and the university. At the time, the university raised no public concerns about the story. Last month, after Baldwin announced she would soon be stepping down as Penn State counsel, the university first disputed the idea that she represented Schultz and Curley at the grand jury. Several prominent attorneys asked by The Patriot-News about the secret grand jury process said lawyers would not normally be allowed in the room to hear testimony unless they were representing the client on the stand. It would be exceptional, these experts said. Think of it this way: Could Jerry Sandusky’s lawyer, Joe Amendola, or a lawyer for Sandusky’s Second Mile charity have walked in to listen to the testimony of the alleged victims? Baldwin had an obligation to correct Curley and Schultz when they identified her as counsel, Geoffrey Hazard said. The law professor at the University of California is recognized for his knowledge of legal ethics and is not involved in the grand jury investigation. “One of the fundamentals is, ‘Who is your client?’ ” Hazard said. “She had every right, and indeed a duty to clarify that. … She and the university might be [subject to claims] somewhere down the line.” Attorneys for Schultz and Curley, retained in late October, declined comment for this story. However, Walter Cohen, a former Pennsylvania attorney general closely following the Sandusky case, said he thinks that if there was confusion over Baldwin’s role — whomever is to blame — it could be a fatal blow to the prosecution. Schultz and Curley could have invoked the Fifth Amendment if they believed they were at risk for prosecution based on their testimony, several attorneys said. “If she was not representing them, they shouldn’t have let her into the room,” Cohen said. “You have a right to have counsel of your choice in the room with you if you are testifying before the grand jury,” Cohen said. “It’s serious.” When called for comment, the attorney general’s office said it could not discuss an ongoing grand jury investigation. Hazard and Jules Epstein, an associate professor of law at Widener Law School, aren’t sure that the testimony from Curley and Schultz about their legal representation will have an effect on the case. The right to effective counsel only applies after someone is charged, Epstein said, not during an investigation. And Hazard added, there is no indication that Baldwin told them not to tell the truth. However, Hazard said Baldwin could face consequences from the bar association if she is found to have acted inappropriately. “This could be a real mess,” he said. “They might well have [pleaded the Fifth]. I don’t think it prejudices prosecution, but it might cause her problems.”
Immediately after Curley and Schultz were arrested on Nov. 7, the university pledged not only the school’s moral support but support for their legal defense. “With regard to the other presentments, I wish to say that Tim Curley and Gary Schultz have my unconditional support,” Spanier said in a statement. “I have known and worked daily with Tim and Gary for more than 16 years. I have complete confidence in how they have handled the allegations about a former university employee.” University spokeswoman Lisa Powers emphasized that, since the allegations concerned how Schultz and Curley fulfilled their responsibilities as top Penn State officials, the university would pay for their defense. Spanier, who was forced to resign by the trustees after the scandal broke, testified before the grand jury in April. As before, Davis said Baldwin traveled with Spanier to Harrisburg and sat in on his grand jury testimony as a representative of the university. An assistant to Spanier’s attorneys said they were unavailable to comment on this story. Less than a week before the charges against Sandusky became public, Joe Paterno, Spanier and Curley were standing inside the Penn State football press room, surrounded by hundreds of reporters celebrating the coach’s 409th victory — an all-time record in major college football. Spanier leaned in to Paterno and told him they needed to talk soon about the Sandusky investigation, sources close to the football program said. The coach apparently didn’t hear him. Paterno was promptly whisked away by his handlers. The next day — six days before charges would be announced — Spanier and Baldwin were first made aware that Schultz and Curley would be charged with lying to investigators and failing to report child abuse, sources said. That same night, Spanier called Paterno and canceled their meeting, sources said. Up to that point, Baldwin and Spanier had downplayed any possible impact of the Sandusky investigation on Penn State. In a May briefing, according to trustees, they gave the impression that the investigation was little to be concerned about. According to trustees quoted in The New York Times, Baldwin said the investigation concerned The Second Mile, not Penn State.
Which leads back to Baldwin’s presence in the grand jury room. “If it had nothing to do with Penn State, why was she even there?” Walter Cohen asked. Davis said Baldwin was bound by grand jury secrecy rules to keep quiet about the testimony she heard. “She was between a rock and a hard place as an attorney allowed to sit in on the grand jury and had to follow Pennsylvania law not to reveal to the board of trustees the content of the testimony,” Davis said. Davis said that Baldwin specifically cited the March article in The Patriot-News during her May briefing to the trustees. The article detailed the alleged 1998 assault in the Penn State football locker room showers that was part of the investigation.
Several board members said they had never read the story, which reported that Paterno, Curley and Schultz had all testified.
Spanier was not bound by any secrecy rule regarding his own testimony.
“The grand jury secrecy does not apply to witnesses — or their counsel if the witness doesn’t want to invoke secrecy,” Cohen said. “They can go out and hold a press conference as to what they say.”
Davis’ response? “He could have, and chose not to.”