Former Penn State Pres. files suit seeking to have judge enjoin perjury prosecution

By Jon Campisi | Apr 1, 2014

Former Penn State University President Graham Spanier, who is facing

criminal charges in connection with the Jerry Sandusky child molestation scandal, has filed a civil lawsuit against state Attorney Kathleen Kane alleging her office improperly brought perjury and other charges against him.

Spanier’s lawyers, Timothy Lewis and Elizabeth Ainslie, of Philadelphia’s Schnader Harrison Segal & Lewis, filed suit in U.S. District Court in Harrisburg Monday asking a federal judge to enjoin the prosecution against their client that is currently pending in the Dauphin County Court of Common Pleas.

“Spanier asks this Court to enjoin the prosecution because it was undertaken in bad faith and without a reasonable expectation of obtaining a valid conviction, and because it violated and continues to violate his constitutional right to due process of law,” the suit reads.

The charges against Spanier allege that the former university president covered up sex abuse committed by Sandusky, a former assistant football coach for the Nittany Lions who is currently serving out a 30-to-60-year state prison sentence for child molestation.

The lawsuit claims that the criminal charges against Spanier were filed in bad faith by Frank Fina, the former chief deputy attorney general in charge of the Criminal Prosecutions Section of the Attorney General’s Office.

Fina now works for Philadelphia District Attorney Seth Williams.

The charges against Spanier include perjury, obstruction of justice, failure to report child abuse, conspiracy and endangering the welfare of a child.

The perjury charge, which the complaint calls the “linchpin” of the prosecution, was based almost entirely on the testimony of Cynthia Baldwin, Penn State’s former general counsel, in the fall of 2012.

Baldwin, who has also been the subject of the grand jury investigation surrounding the Sandusky events, acted as Spanier’s lawyer in connection with the investigation just before she testified against Spanier in October 2012, the lawsuit states.

Fina, who at first said he would limit his questioning of Baldwin so as to avoid attorney-client privilege issues, subsequently “disregarded his pledge to the Court,” and instead questioned Baldwin extensively about privileged conversations she allegedly had with Spanier, according to the complaint.

The Spanier testimony that Fina used as the basis of the perjury charge had been given by Spanier more than a year-and-a-half earlier to a different grand jury, the suit states.

At that earlier proceeding, Spanier said he was personally being represented by Baldwin, the university’s attorney.

“Fina had, just minutes before and outside Spanier’s presence, heard Baldwin tell the supervising grand jury judge that she did not represent Spanier in that forum, only the university; but when Spanier in the grand jury identified Baldwin as his lawyer, Fina said nothing to correct Spanier’s statement and thereby to alert Spanier to the fact that Baldwin was not serving as his lawyer, but instead continued his questioning of Spanier,” the suit states. “Fina thus deliberately obtained uncounselled testimony from Spanier.”

The perjury charge, the suit continues, is thus based on Fina’s “deception, both of Spanier and of the supervising grand jury judge, and on Fina’s blatant violation of Spanier’s attorney-client privilege.

“The infected perjury charge being the linchpin of all of the charges that Fina brought against Spanier, all of the charges are likewise infected by Fina’s bad faith,” the complaint reads.

Spanier’s attorneys claim that Fina had no realistic expectation of obtaining a valid conviction on the older charges, those of failure to report child abuse and endangering the welfare of a child, since the charges not only were without merit, but they were barred by a statute of limitations and didn’t legally apply to individuals in Spanier’s position.

Spanier served as Penn State’s president from 1995 to 2011.

Sandusky, the former defensive coordinator who was convicted of child rape, had retired from the school back in 1999.

The lawsuit says that Fina, who had also worked on the Sandusky criminal case, had no evidentiary basis to believe that Spanier was criminally culpable or that he had information that would further the child sex-abuse investigation.

The complaint notes that Fina’s then-boss, Linda Kelly, who served briefly as the state’s top prosecutor after then-Attorney General Tom Corbett became governor, accused Spanier of being part of a “conspiracy of silence” when Kelly announced the criminal charges against Spanier during a widely-publicized news conference.

“Fina allowed Kelly to make these statements despite knowing that there was no evidence whatsoever of any ‘conspiracy of silence,’” the lawsuit states.

The complaint also says that Fina chose to charge Spanier, who had no connection to the charity run by Sandusky, The Second Mile, with endangering the welfare of boys, but he didn’t charge anyone connected with The Second Mile, which directly supervised the young men.

The lawsuit accuses the Attorney General’s Office of violating Spanier’s Fourteenth Amendment rights.


The federal case number is 1:14-cv-00599-YK.

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