Former Pennsylvania State University president Graham B. Spanier is asking a federal judge to halt his trial on charges that he helped cover up child sex-abuse by Jerry Sandusky, this time alleging misconduct by a prosecutor.
In a lawsuit filed Monday against Attorney General Kathleen G. Kane in Harrisburg, Spanier accuses former Deputy Attorney General Frank Fina of violating his right to due process and acting in bad faith by bringing charges based on testimony from Cynthia Baldwin, Penn State's former top lawyer.
Spanier says that Fina knew that Baldwin was representing Penn State, not Spanier, when she accompanied the former president at his 2011 appearance before a grand jury investigating Sandusky, but that he still allowed Spanier to testify.
The lawsuit is the latest attempt by Spanier's attorneys to derail his looming trial with former vice president Gary Schultz and former athletic director Tim Curley on charges of perjury and conspiracy to cover up reports that Sandusky had sexually abused children. All three have denied the allegations. No trial date has been set.
A representative from Kane's office said Monday that the lawsuit was being reviewed but declined to discuss it. Fina could not be reached.
The argument regarding Baldwin's role in the case is not new, but this is the first time Spanier's legal team has asked a different court to block the case.
The controversy hinges on the question of whom Baldwin was representing when she appeared with each of the three Penn State officials as they testified before the grand jury investigating Sandusky, the former assistant football coach.
In April 2011, Spanier was asked to come before the grand jury. In a private meeting that day in the supervising judge's chambers - without Spanier or Baldwin present - Fina told the judge that he believed top officials at Penn State might have covered up reports about abuse by Sandusky, according to a transcript.
Then Baldwin entered the room and told Fina she represented Penn State "solely," the transcript shows.
Moments later, the private meeting ended and Spanier began testifying before the grand jury. He identified Baldwin as his attorney. No one disputed it.
"Fina said nothing to correct Spanier's statement and thereby to alert Spanier to the fact that Baldwin was not serving as his lawyer," the suit says. "Fina thus deliberately obtained uncounselled testimony from Spanier."
By October 2012, the suit alleges, Baldwin had become a subject of an investigation into a cover-up, and unbeknownst to Spanier, she agreed to cooperate.
Before she testified to the grand jury, Fina told the supervising judge that he was aware of potential attorney-client issues surrounding Baldwin, but that he would not ask her about privileged conversations she had with Spanier. The suit says Fina disregarded that agreement and questioned Baldwin about topics that should have been protected by attorney-client privilege.
Days after Baldwin testified, Spanier was indicted.
Baldwin's attorney has denied she violated attorney-client privilege, saying she fulfilled all professional and ethical duties to the university.
In court filings, prosecutors have countered that when Baldwin accompanied the three during their testimony, her interest as an agent of the school was aligned with theirs.
Fina headed the now-controversial corruption investigation into Philadelphia legislators that Kane shut down last year. Kane has said the probe, which involved at least four lawmakers caught accepting money or gifts, was flawed and tainted by racism. Fina has denied any wrongdoing.
He now works in the Philadelphia District Attorney's Office and is also expected to figure in a pending review by Kane's office into the attorney general's handling of the Sandusky investigation. Kane's office has not said when it expects the report will be complete.
The debate over Baldwin's role essentially brought the case to a standstill in December, when Common Pleas Court Judge Todd A. Hoover took the matter under advisement along with other pretrial issues.
Spanier's attorney, Elizabeth Ainslie, declined to comment on Monday's filing. She has argued for more than a year that charges against him should be dismissed based on Baldwin's alleged violation of attorney-client privilege. Documents unsealed last month included an affidavit Ainslie submitted from Philadelphia civil-rights lawyer David Rudovsky, who reviewed the transcripts in the case and agreed with Ainslie.
"This process violated the most fundamental precepts of the right to counsel," Rudovsky wrote in the 2013 affidavit. "Ms. Baldwin knew that Dr. Spanier believed she represented him at the grand jury, but she failed to inform him otherwise. . . . The blame for this unprecedented situation is shared as well by the court and Office of the Attorney General."