Sandusky prosecutor and former Penn State lawyer disciplined
By MARK SCOLFORO
HARRISBURG — A lawyer who led the child molestation investigation and prosecution of former Penn State assistant football coach Jerry Sandusky lost his law license for a year Wednesday over his handling of a grand jury witness in the case, the Pennsylvania Supreme Court ruled.
The justices issued a 5-1 decision to suspend Frank Fina’s license for a year and a day, agreeing with the Office of Disciplinary Counsel that Fina’s actions were improper in obtaining grand jury testimony about three top university officials by then-Penn State General Counsel Cynthia Baldwin.
Baldwin, who also was accused of violating professional rules for lawyers in her representation of the officials, was given a public reprimand by the high court Wednesday.
Baldwin’s attorney, Robert S. Tintner, said she “made every effort to comply” with professional conduct rules.
“We are disappointed with the outcome of the Supreme Court’s decision, particularly after the factual findings of a judge of the court of common pleas and the hearing committee who held evidentiary hearings and concluded that our client did not breach any ethical rules,” Tintner wrote in a statement.
Joe McGettigan, a lawyer who also was a prosecutor during Sandusky’s 2012 trial, and who represents Fina in the disciplinary matter, said he will seek review by the U.S. Supreme Court.
In Fina’s case, the court issued a brief order that did not lay out the majority’s analysis, but in a concurrence, Justice David Wecht called Fina’s punishment “manifestly appropriate.” He said lawyer-client privilege issues should have been hammered out before Baldwin testified.
“Instead, Fina chose to mislead the supervising judge, causing that jurist to believe such resolution was unnecessary because Fina undertook to refrain from inquiry into areas of potential privilege,” Wecht wrote. “Fina promptly reneged on those assurances. This conduct fell far below the ethical standard we rightly demand of a prosecutor in this type of situation.”
During oral argument before the high court in November, Amelia Kittredge with the Office of Disciplinary Counsel called Fina “someone who cannot or will not separate right from wrong. “
But Dennis McAndrews, who represents Fina, told the justices his client’s actions were “in the highest tradition of American prosecution.”
“The big falsehood is that Frank Fina said to the judge one thing and went into the grand jury and did something else,” McAndrews told the court in November.
Working then for the state attorney general’s office, Fina and McGettigan helped secure a 45-count conviction in 2012 against Sandusky for abuse of 10 boys, including attacks on school property. Sandusky is serving a 30- to 60-year state prison sentence.
Justice Thomas Saylor recused himself from the Fina matter, leaving six justices to decide the case. Justice Kevin Dougherty said he agreed Fina broke professional rules for lawyers but did not find the license suspension to be appropriate.
Baldwin, a former state Supreme Court justice and former Penn State trustee, was the school’s general counsel when she was called before an investigative grand jury in Harrisburg in October 2012, more than three months after Sandusky was convicted. She proceeded to testify about former Penn State Vice President Gary Schultz, former Athletic Director Tim Curley and former school President Graham Spanier.
Shortly after Baldwin’s grand jury testimony, additional charges were filed against Curley and Schultz, and Spanier was charged for the first time.
Her grand jury appearance led the state Superior Court in 2015 to throw out some charges that Curley and Schultz had faced for their response to complaints about Sandusky.
The justices determined that Baldwin did represent the three men as she accompanied them to testify before the grand jury investigating Sandusky, but did an incompetent job.
“It is impossible to conclude in light of the seriousness and solemnity of the warnings administered by the supervising judge that the individual clients believed anything other than their personal interests were being protected” by Baldwin, Dougherty wrote in the opinion announcing her punishment.
A public reprimand of Baldwin, Dougherty wrote in a 4-0 opinion, is warranted because she “has never contemplated, much less expressed, remorse.” Justices Saylor, Max Baer and Debra Todd did not participate in the Baldwin decision.