Wes Oliver, an attorney and a law professor at Duquesne University, became a national expert on the Jerry Sandusky scandal during the trial of the former Penn State defensive coordinator. The “Today” show and “NBC Nightly News” routinely asked him to appear on national television to share his analysis. So when the trial for the former Penn State administrators Graham Spanier, Gary Schultz and Tim Curley commenced, he wanted to continue following those proceedings, too. Oliver asked the Duquesne law school’s dean for time off to be in Harrisburg for the trial.
That was in the spring of 2013.
The trial, obviously, didn’t happen then, and it’s not likely to start any time soon, though next week will mark four years since charges against Schultz and Curley were originally filed. And it might take another year or even longer before any trial does happen.
Currently, the case is lingering at the Superior Court level, hung up mostly on challenges directed at the legal representation of the three men from when they testified in front of the grand jury months before charges were filed against them and Sandusky. Delays aren’t unheard of for criminal trials, but Oliver said they usually don’t happen for this long, especially for cases with charges as uncomplicated as these.
If you haven’t been keeping up or don’t quite understand everything, you’re not alone. Ask lawyers who were once closely following the case, and they’ll admit to being equally perplexed.
“I haven’t seen anything like this,” Oliver said.
The second grand jury presentment in this saga, released in November 2012, is the root of these complications. This presentment laid out the reasons for indicting Spanier and for adding additional charges for Curley and Schultz, who had previously been charged in 2011. But it also set up a giant roadblock by including testimony from former Penn State attorney Cynthia Baldwin. She testified about the three administrators’ actions during the period the grand jury had started investigating Sandusky and Penn State.
On November 20, 2012, attorneys for all three men filed a motion to strike her testimony. The motion wasn’t fully answered until this January when trial-level judge Todd Hoover ruled Baldwin’s testimony could stand and the case could proceed. In March, attorneys for Spanier, Curley and Schultz filed an appeal, taking the case to the Superior Court where it currently stands.
Why does Baldwin matter? Well, without getting too far into the legal weeds, the lawyers for the three administrators claim that their clients believed they were represented by Baldwin, and the prosecution and Baldwin countered that she was representing Penn State University as an entity.
The defense argued that if Baldwin was repping Penn State then their clients had no lawyer during their grand jury testimony. And if she was representing them, she later broke attorney-client privilege by sharing details with the grand jury later on about Spanier, Curley and Schultz. Hoover ruled that at the time of the grand jury Baldwin was representing Penn State and simultaneously the three men as agents of the university — so they had a lawyer — and that she had no reason to believe the interests of Penn State would diverge from those of the three men. So the arguments of the defense didn’t hold.
The case continues to wind on, in part, because Spanier, Curley and Schultz have good representation. Other defendants might not be able to afford lawyers who can file voluminous, complicated motions, as these have. Penn State is paying the tab for these former administrators, so they can pile up near-infinite expenses (as of last summer those expenses totaled nearly $9 million).
Another reason is harder to explain. While the Baldwin issue is a tricky one, the judge presiding over the case at the trial level, Hoover, essentially spent two and a half years forming his opinion about that one issue.
“Who knows if this was part of some sort of plan by the trial judge to delay the proceedings,” Oliver said. “One thing is clear: the longer this case goes the less likely it is to become the circus that was the Jerry Sandusky trial.
“How this captivated the country, I don’t get it,” he continued. “But the fact of the matter is it did….I think in particular with everything going on in the AG’s office you could imagine a judge wanting to get this out of the limelight.”
That’s right: Two of the biggest scandals in recent Pennsylvania history — Kathleen Kane and Sandusky — have come full circle. The Sandusky scandal, which led to warring between some of PA’s top lawyers, the porny email investigation and Kane’s leak charges, is now being affected by the very scandal it spawned. Penn Live’s Charlie Thompson pointed out in August that the prosecution has lost several key players who would likely represent the state’s case in court because of turnover in the attorney general’s office.
Two of the key players who had been working on the case of the former administrators from the onset were Frank Fina and James Barker. Fina left shortly after Kane took office and has been feuding with her since. Barker was fired this spring after being a key witness in the leak case against Kane and recently sued her.
The prosecution has had to introduce new lawyers to the case as it has unfolded. Attorneys representing Spanier, Schultz and Curley, who did not respond to requests for comment, have now had years to prepare. Oliver said the delay gives them the advantage.
In August, three Superior Court judges heard arguments from the prosecution and defense and did not give a timetable for when they would make a decision. It could be months or years, if they go the Hoover route. And after the Superior Court’s ruling, the losing side could petition for a challenge to the state Supreme Court, which by the way will have three open seats this year and three more by 2018 after being decimated by porn, retirement and accusations of racism and crime. Such an appeal would also likely to take several months to a year or longer.
But wait! There’s more! Hoover, the trial judge who spent so long making a decision about Baldwin, announced he would be taking a medical leave of absence in April. As of Tuesday, he was still on leave. There’s no guarantee he’ll even be around to preside over a trial after the higher courts make their decisions.
The revelation that Hoover had taken a leave was even news to Oliver.
“I didn’t keep up with it,” he admitted. “It’s gotten so bogged down.”