Prosecutor who pursued Penn State officials faces questions over his tactics

For three years, prosecutor Frank Fina pursued child molester Jerry Sandusky and the top Pennsylvania State University officials who covered up his crimes. He helped win prison sentences for them all.

Now, it is Fina who is being pursued.

He faces an administrative hearing this week on charges of violating the ethical rules for lawyers in his prosecution of Penn State's former president, Graham B. Spanier, and two senior university aides. Specifically, he is accused of violating the ethics code for attorneys by subpoenaing a top lawyer for the university to testify about her conversations with Spanier and his aides.

The counsel for the state legal disciplinary board said that the lawyer, former Penn State general counsel Cynthia Baldwin, was representing the three men and that Fina had wrongly sought investigative information that she had learned in that role.  This, the board contends, stripped the men of their attorney-client privilege.

Fina says Baldwin was representing the university at the time, not Spanier and aides Gary Schultz and Tim Curley.

Baldwin agrees with Fina. They say the men have only themselves to blame for their legal mess by lying repeatedly to Baldwin about what they knew of Sandusky's wrongdoing.  Because of their lies, Baldwin has said, she had no reason to think their legal posture was in conflict with Penn State's.

If Fina is found to have violated the ethical code in the hearing before three lawyers Thursday in Philadelphia, he could face penalties that include a reprimand or the loss of his law license.

Fina, 52, was part of the team that convicted Sandusky, the former assistant football coach at Penn State, who is serving at least 30 years in prison for molesting 10 boys.

He also was a key player in the investigation into how Spanier, former university vice president Schultz. and former athletic director Curley had handled the scandal.

When Fina first subpoenaed information from the university in late 2010, it fell upon Baldwin, as the school's top attorney, to cope with the demand. She huddled with Spanier and the two key aides, who falsely assured her they were unaware of any wrongdoing by Sandusky.

Baldwin accompanied all three when they testified before a grand jury investigating Sandusky and repeated the story they had told her. Their testimony was the grounds for subsequent perjury charges against them.

About 10 months later, Fina lit the fuse on the current fight when he called Baldwin as a witness before the same grand jury in Harrisburg to testify against the three men.

At that time, Fina was winding down a heady career as a state prosecutor. In the years before, he had led an aggressive unit in the Pennsylvania Attorney General's Office that won two dozen corruption convictions against top Harrisburg lawmakers and their aides.

Then, he ran afoul of a new attorney general, Kathleen G. Kane, whose successful election campaign raised questions about the quality of Fina's Sandusky probe. In office, she continued as a harsh critic of Fina, who by then had left the Attorney General's Office and would eventually go into private practice.

Kane targeted him over his exchange, along with scores of others in her agency, of pornography on state emails. Then, she broke grand jury secrecy to leak a negative story about him.

Fina fought back, triggering the investigation that led to Kane's conviction on perjury charges and subsequent resignation.

Baldwin is a 73-year-old Penn State graduate who served as a county judge before becoming a state Supreme Court justice and then counsel for Penn State. She also faces an ethics complaint over her grand jury testimony.

The complaints against both Fina and Baldwin were brought early this year by the counsel of the disciplinary board. They were filed six years after Fina called Baldwin to testify before the grand jury.

Baldwin and Fina maintain that she was clear from the start with Spanier, Schultz, and Curley that her client was the university and that she was working with them as employees of Penn State. Thus, Fina and Baldwin say, no attorney-client privilege existed between her and the defendants. And because of that, she was free to testify about her discussions with them about what they knew about Sandusky, Baldwin and Fina maintain.

In separate rulings, two Common Pleas Court judges found in favor of that position.

But in early 2016, a three-judge Superior Court panel sided with the former Penn State officials in a ruling throwing out the most serious charges against them, notably the felony perjury charges of lying to a grand jury. With the case against them significantly weakened, the two aides ended up pleading guilty last year to misdemeanor charges of child endangerment. Spanier took his case to trial, but was convicted of the same offense.

The appeals court noted that Spanier and the aides each identified Baldwin as their lawyer at the start of their critical 2011 appearances before the grand jury investigating Penn State's handling of the Sandusky scandal.

Fina has lined up former state Supreme Court Justice Ronald D. Castille as an expert on his behalf.  Lawrence Fox, a Philadelphia lawyer and legal-ethics authority, is to testify as an expert for the counsel's office.

Baldwin faced her own two-day hearing in Pittsburgh late last month. Her charges include improperly revealing information obtained from a client.

In her testimony in Pittsburgh, Baldwin contended she had been "duped" by Spanier, Schultz and Curley. Because they lied about their conduct, she said, there was no reason she should not testify against them in the grand jury.

She said the men never revealed to her that they had agreed not to go the police about a Sandusky attack on a youth in 2002, a cover-up later documented in damaging emails.