Former state prosecutor Frank Fina did not violate professional rules in his investigation into a sexual-abuse cover-up by top Pennsylvania State University officials, a three-lawyer disciplinary panel has found.
The panel, in an advisory opinion issued Friday to the state’s disciplinary board for attorneys, rejected a complaint that Fina had improperly subpoenaed testimony from Penn State’s general counsel in 2012 as he investigated a bid by Penn State’s president and two senior college administrators to hide their lenient treatment of sexual abuser Jerry Sandusky.
Fina faced a complaint saying that in his inquiry into Penn State president Graham Spanier and the aides, he gathered testimony from the general counsel, Cynthia Baldwin, regarding how they had lied to her about their dealings with Sandusky. Baldwin had represented the university itself, as well as Spanier and the aides, during the opening months of Fina’s probe. The complaint against Fina said subpoenaing the men violated an ethical rule barring prosecutors from turning defense lawyers into witnesses against former clients.
The panel rejected the complaint for a simple reason: It noted that the subpoena of Baldwin was signed not by then-Chief Deputy Attorney General Fina, but by Bruce Beemer, his superior as chief of staff to the attorney general and a member of the team pursuing the case.
In October, a different three-lawyer panel issued a similar advisory opinion, recommending clearing Baldwin of any ethical violations as well. Their opinions put the cases, both brought before the board’s Office of Disciplinary Counsel, squarely before the 13-member disciplinary board. If the full board accepts the recommendations, the cases end there. If it recommends any discipline -- such as the suspension of a law license -- their fate would be taken up by the state Supreme Court.
In 2012, Sandusky, a former Penn State assistant football coach, was convicted of molesting 10 boys over more than a decade. Now 74, he is serving a minimum 30-year sentence, effectively a life sentence.
Spanier’s appeal of his 2017 misdemeanor conviction by a jury on a child-endangerment charge has kept his two-month prison sentence in abeyance. Former athletic director Tim Curley and former vice president Gary Schultz completed their two-month sentences for the same charge two years ago.
All three benefited from a state Superior Court ruling that threw out the most serious charges against them on the grounds that Fina and Baldwin had rode roughshod over their rights by her role as a government witness.
In one section of its 17-page opinion Friday, the panel weighing Fina’s conduct echoed the Superior Court’s criticism of him. The panel said Fina had promised Judge Barry Feudale, presiding over an investigative grand jury exploring the Penn State scandal, that he would limit the sweep of his questioning of Baldwin, but “contrary to the representations,” Fina pushed into forbidden areas.
For his part, Feudale, in an 2018 affidavit prepared for the disciplinary panel, said Fina had questioned Baldwin properly. He also noted that he had rejected the criticism of Fina’s tactics in an earlier ruling.
While the panel’s decision hinged on a technical issue, Fina and Baldwin have also raised a series of more substantive defenses. For one, they argued that Baldwin had thought the university and the three administrators were all on the same page legally and thus representing all three posed no conflicts. It was only later, Baldwin has said, that she realized that the men had been lying to her and hiding incriminating documents.
Amelia Kittredge, the disciplinary counsel who argued the case, declined comment. Fina also declined comment.