Court ponders discipline against Penn State case prosecutor

• Mark Scolforo/The Associated Press
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(Harrisburg) — A lawyer for the agency that investigates misconduct by lawyers told Pennsylvania’s highest court Wednesday that a yearlong law license suspension is justified against one of the primary prosecutors in Jerry Sandusky’s 2012 child molestation trial.

Amelia Kittredge with the Office of Disciplinary Counsel argued in favor of the recommended punishment against former state prosecutor Frank Fina because he obtained grand jury testimony by then-Penn State general counsel Cynthia Baldwin about three top university officials.

Kittredge told the justices Fina violated a rule against prosecutors issuing subpoenas without a judge’s approval to get information from lawyers about their current or former clients.

“What we have here is someone who cannot or will not separate right from wrong,” Kittredge said, arguing that Fina continues to deny wrongdoing.

Fina’s lawyer Dennis McAndrews said his client shouldn’t face discipline, saying after the oral argument session that Fina’s actions were “in the highest tradition of American prosecution.”

McAndrews argued the subpoena was signed by the acting attorney general at the time, not by Fina, and that Fina “put the situation” before the grand jury supervisory judge, Barry Feudale.

“The big falsehood is that Frank Fina said to the judge one thing and went into the grand jury and did something else,” McAndrews told the court, which was down to six justices after Chief Justice Thomas Saylor recused himself.

Kittredge told the court Fina had been running the prosecution.

“At all relevant times, Mr. Fina was in charge,” she said.

Baldwin, a former state Supreme Court justice and former Penn State trustee, was the school’s top lawyer when she was called before an investigative grand jury in Harrisburg in October 2012, more than three months after Sandusky was convicted.

Shortly afterward, additional charges were filed against former Penn State vice president Gary Schultz and former athletic director Tim Curley, and former school president Graham Spanier was charged for the first time.

Before Baldwin’s 2012 grand jury appearance, Fina told Feudale that “there may well be” attorney-client privilege claims by Curley, Schultz and Spanier. Fina reassured the judge that it was “the risk that the commonwealth is ready to bear because we believe that we are soundly within the waiver” of attorney-client privilege by Penn State as an institution.

“Mr. Fina wanted this done quick, fast and in a hurry,” Kittredge said.

McAndrews said Fina avoided testimony by Baldwin about her preparation of the administrators for their own grand jury appearances, or about their discussions after the men testified.

The Supreme Court’s Disciplinary Board has previously recommended that Fina lose his license for a year and a day, which Justice Max Baer said was effectively more like two years, given the lengthy process for seeking reinstatement.

Justices said Wednesday that questions about exactly who Baldwin represented back in 2012 may never be conclusively answered. Baldwin’s grand jury appearance prompted the state Superior Court in 2015 to throw out some of the charges Curley and Schultz faced for their response to complaints about Sandusky.

Curley and Schultz pleaded guilty on the eve of trial in March 2017 to a single count of misdemeanor child endangerment and served brief jail terms.

Spanier, who remains a faculty member at Penn State, was found guilty of child endangerment but the conviction was overturned in April by a federal magistrate judge who ruled he had been improperly charged under a 2007 law for actions that occurred in 2001. The attorney general’s office has appealed.

Sandusky is due in a central Pennsylvania courtroom on Friday to be resentenced on a 45-count conviction. A state appeals court ruled earlier this year mandatory minimums had been improperly applied in his case.