HomeLatest ThreadsGreatest ThreadsForums & GroupsMy SubscriptionsMy Posts
DU Home » Latest Threads » Forums & Groups » Places » U.S. » Pennsylvania (Group) » Former AG says AG's Case ...
Introducing Discussionist: A new forum by the creators of DU

Mon Feb 18, 2013, 08:40 AM

Former AG says AG's Case Against Penn State Officials Likely to Fall Apart Because of Screwups

This morning I watched a program on PCN about the Penn State/Sandusky matters. 2 top Penn State officials were charged a couple of years ago with perjury before the grand jury, about covering up for Sandusky's earlier incidents. They are now going to trial.

One of the panelists was a former Acting Attorney General for PA. He said there were major screw-ups that will make it extremely difficult to maintain any conviction of these two officials.

He said that the 2 Penn State officials (Schultz and Curley) drove to the grand jury with Penn State's top lawyer. Schultz and Curley reportedly thought that the attorney was being provided by Penn State to represent them.

Then, the Attorney General's office had that same attorney testify against Schultz and Curley.

The following questions are raised:

1. Why didn't anyone ask questions to determine who was representing who? (This exact same matter became a big issue at the trial of Catholic officials in Phila. when the Archdiocese provided their attorney.)

2. If Schultz and Curley believed the attorney was representing them, was her testimony against them a violation of Attorney-Client privilege?

3. If the attorney was not representing them, then why were two officials allowed to testify without any legal representation?

As a result, he believes that if the state courts convict these guys of perjury, it is likely to be overturned by the federal courts.

6 replies, 1140 views

Reply to this thread

Back to top Alert abuse

Always highlight: 10 newest replies | Replies posted after I mark a forum
Replies to this discussion thread
Arrow 6 replies Author Time Post
Reply Former AG says AG's Case Against Penn State Officials Likely to Fall Apart Because of Screwups (Original post)
JPZenger Feb 2013 OP
Scuba Feb 2013 #1
Curmudgeoness Feb 2013 #2
happyslug Feb 2013 #3
Divernan Feb 2013 #4
JPZenger Feb 2013 #5
happyslug Feb 2013 #6

Response to JPZenger (Original post)

Mon Feb 18, 2013, 08:44 AM

1. A clever ruse. Let's hope it doesn't work.

Reply to this post

Back to top Alert abuse Link here Permalink


Response to JPZenger (Original post)

Mon Feb 18, 2013, 08:03 PM

2. Well, at least they aren't blaming the screwups on Kane.

That was the first thought that popped into my mind when I read the subject on this. I wouldn't put it past some of the asses in Harrisburg---hell, the Reps started blaming Obama before he took office.

Reply to this post

Back to top Alert abuse Link here Permalink


Response to JPZenger (Original post)

Sun Feb 24, 2013, 04:06 AM

3. This was decided during Watergate

If you hire and pay for the attorney, the Client-attorney kicks in, but if your employer is paying the attorney, the Attorney's Client is the EMPLOYER not the defendant, and as such between the Defendant and the Attorney there is no client-attorney privilege.

They can make that argument, but the courts will have a hard time upholding that argument.

Reply to this post

Back to top Alert abuse Link here Permalink


Response to happyslug (Reply #3)

Sun Feb 24, 2013, 09:14 AM

4. The attorney's client is any employee acting within the course and scope of his employment.

Cynthia Baldwin was the general counsel for Penn State. Lawyers hired to represent an employer will of course be actually representing individual employees, and in that capacity, there is privilege between legal counsel and individual employees. As long as an individual is "acting in the course and scope of their employment", liability for their actions falls on the employer, not the individual employees. The employer provides legal counsel for said employees, and privilege attaches.

The issue is whether the employee was acting in the course and scope of his employment - or OUTSIDE the scope. If outside the scope, no privilege attaches. Criminal actions cannot be within the course and scope of employment, because contracts of employment requiring illegal actions are null and void, and unenforceable. The legal term is void ab initio, i.e, void upon initiation, or void from the beginning. Bottom line, one cannot contract for criminal behavior. At a crasser level, that is why bookies can't go to court to enforce gambling debts, so resort to threats and physical violence instead.

Enabling/ignoring Sandusky was done in the course and scope of Curley's and Schultz's employment. But Curley and Schultz are not being charged with failing to deal with Sandusky, but with lying to the grand jury. That's a crime and emphatically not within the course and scope of their employment. There could be no enforceable contract requiring an employee to lie in court or to a Grand Jury. These 2 guys may have thought they had privilege, but ignorance of the law is no defense.

An example from one of my old cases: If an employee has a duty to provide safety equipment, and negligently fails to make sure the equipment is sufficient, resulting in harm to a third party, there would be privilege between the employer's attorney and the employee. However, if the employee maliciously sabotaged said equipment, with the aim of causing harm to someone he had previously threatened, that criminal action would be "outside the course and scope of the employment", and his employer will not provide legal counsel for that action.

In this case, Curley and Schultz are not being charged in regard to their actual dealings with Sandusky, but with subsequently lying to the grand jury about their actions. Those lies were not in "the course and scope of their employment".

As always with the law, there are arguments to be made on both sides, and this really is a mess. Lack of communication between Baldwin and these 2 guys caused the problem, and I agree with the Freeh Report that she is at fault.

"Singled out repeatedly in the Freeh report for missteps in the investigation of a possible coverup at Penn State University, former general counsel Cynthia Baldwin is made out to be a scapegoat in the newest grand jury presentment issued Thursday by the state attorney general's office.

"The document goes on for several pages explaining how ousted university president Graham Spanier directed the former state Supreme Court justice's actions, told her who she would represent and how, and even kicked her out of an executive session with Penn State trustees in such a startling fashion that the woman forgot her purse."

Read more: http://www.post-gazette.com/stories/local/state/grand-jury-sheds-new-light-on-psu-officials-interactions-660254/#ixzz2LpFXOJWi

Reply to this post

Back to top Alert abuse Link here Permalink


Response to Divernan (Reply #4)

Mon Feb 25, 2013, 09:57 AM

5. Thanks for the clarification

I hope Curley and Schultz get nailed to the wall, if they did what the grand jury believes they did. If you have enough suspicions to keep an entire file in your desk drawer about accuations against Sandusky, but you never tell anyone about those other suspicions or accusations, even you see he continues to have access to vulnerable kids, and even after there is at least one credible witness that has gone to the authorities, that is very very bad. According to some press reports, that file showed up months later during a long delayed search of Schutz's office.

Reply to this post

Back to top Alert abuse Link here Permalink


Response to Divernan (Reply #4)

Mon Feb 25, 2013, 01:22 PM

6. 100% agree, but I wanted my comment to be brief

I know lawyer's definition of "Brief" and most people's definition of the word "brief" can be 15-30 pages different, but I wanted to keep it to one paragraph which I did.

Reply to this post

Back to top Alert abuse Link here Permalink

Reply to this thread