- RSS Channel Showcase 2221597
- RSS Channel Showcase 9511040
- RSS Channel Showcase 5754762
- RSS Channel Showcase 9676717
Articles on this Page
- 12/10/17--07:14: _On Tour With The Or...
- 01/01/18--04:00: _Harvey Silverglate'...
- 03/09/18--06:59: _A Prosecutor's 'Los...
- 03/15/18--12:34: _Progressive Larry K...
- 04/06/18--11:46: _A Prosecutor's 'Los...
- 04/10/18--13:37: _'She Knew He Was Go...
- 04/30/18--05:55: _An Offer He Couldn'...
- 05/10/18--17:30: _Progressive D.A. La...
- 05/16/18--16:47: _Reform D.A. Lets Co...
- 05/18/18--18:16: _Detective Files Civ...
- 05/22/18--07:00: _How Much Will Legal...
- 05/22/18--08:42: _Inky Reporter Scoop...
- 06/08/18--10:31: _Mayor Kenney's Song...
- 06/13/18--14:43: _A System of Justice...
- 06/14/18--17:25: _Amid Smirks And Moc...
- 06/27/18--04:36: _Bad Rufus & Billy D...
- 06/28/18--14:00: _As His Case Heads F...
- 06/30/18--07:23: _Confidential Intern...
- 07/01/18--10:58: _Meek Mill Judge: D....
- 07/02/18--13:43: _'CLOSE HOLD -- Impo...
- 07/11/18--06:40: _Spanier Seeks Recus...
- 07/14/18--06:30: _What's Skinny Joey ...
- 08/01/18--17:03: _A Slime-Fest At Fra...
- 08/11/18--05:47: _What Conflict, Judg...
- 08/14/18--11:24: _Easy Money In The S...
- 12/10/17--07:14: On Tour With The Original Gangster
- 01/01/18--04:00: Harvey Silverglate's Foreword To Target: The Senator
- 03/09/18--06:59: A Prosecutor's 'Lost' Notes And The Pack Of Lies She Wrote
- 03/15/18--12:34: Progressive Larry Krasner Legalizes Prostitution In Philadelphia
- 04/06/18--11:46: A Prosecutor's 'Lost' Notes And The Trail Of Deception Behind It
- 04/10/18--13:37: 'She Knew He Was Gonna Lie'
- 04/30/18--05:55: An Offer He Couldn't Refuse
- 05/10/18--17:30: Progressive D.A. Larry K. Loses It With Former Prosecutor
- 05/16/18--16:47: Reform D.A. Lets Convicted Killer Go Free
- 05/18/18--18:16: Detective Files Civil Rights Suit Against D.A.
- 05/22/18--07:00: How Much Will Legalized Sports Gambling Hurt The Mob?
- 05/22/18--08:42: Inky Reporter Scoops D.A.'s Detectives
- 06/08/18--10:31: Mayor Kenney's Song And Dance Routine Goes Viral
- 06/13/18--14:43: A System of Justice 'Systematically Destroyed'
- 06/14/18--17:25: Amid Smirks And Mocking, An Ethics Expert Rips Frank Fina
- 06/27/18--04:36: Bad Rufus & Billy Doe Come Back to Haunt Graham Spanier
- 06/28/18--14:00: As His Case Heads For Retrial, Msgr. Lynn Holds A Trump Card
- 06/30/18--07:23: Confidential Internal Review Shreds Louis Freeh Report
- 07/01/18--10:58: Meek Mill Judge: D.A. Abdicated His Responsibility
- 07/11/18--06:40: Spanier Seeks Recusal Of Judge For Undisclosed Conflict
- 07/14/18--06:30: What's Skinny Joey Doing Hanging With Robert De Niro?
- 08/01/18--17:03: A Slime-Fest At Frank Fina's Final Disciplinary Board Hearing
- 08/11/18--05:47: What Conflict, Judge Says
- 08/14/18--11:24: Easy Money In The Sandusky Case: Penn State Not Minding The Store
|Courtroom sketch by Susan Schary|
By Ralph Cipriano
In the back of a prison bus, a U.S. marshal was sitting in a steel cage, armed with a shotgun. He was watching over forty men dressed in blue paper jumpsuits and shackled in handcuffs, belly chains, and leg irons.
My criminal defense and civil liberties law practice, spanninghalf a century, has exposed me to several shockingly broad gaps in American life between appearance and reality.
No gap, in my experience, has been broader than that between the commonly accepted reputation of federal criminal justice and the sordid realities of how the United States Department of Justice, often with the connivance of the federal judiciary, dispenses justice.
A disproportionate number of federal trial and appellate court judges are former prosecutors, and so there is an uncomfortable amount of symbiosis between the Justice Department and the bench. The number and variety of innocent people railroaded by the system would be sufficient to undermine any semblance of public confidence in federal criminal justice if the public understood the details of these cases.
Ralph Cipriano has now taken a giant step in this educational (and muckraking) endeavor. He has written a book describing in often dramatic detail the trials and tribulations of longtime Pennsylvania state Senator (and one-time unchallenged legislative powerhouse) Vincent J. Fumo. Cipriano’s contribution to our understanding is how the system works— and how it enhances the career prospects and power of federal prosecutors while mercilessly, and too often falsely, destroying the lives and careers of the targets. Target: The Senator; A Story About Power and Abuse of Power, is a worthy successor to my own effort to pull open the proverbial wizard’s curtain in the Land of Oz and expose the not-so-obvious manipulations being performed.
In 2009 I published Three Felonies a Day: How the Feds Target the Innocent. Those familiar with the depredations and depravities of federal criminal justice praised the book. Those who were ignorant of how the system reallyworked questioned in disbelief the real-life stories that I recounted. Federal prosecutors, on the other hand, and a few federal judges, departed from their colleagues to let me know — usually in confidence, but onlyon very rare occasion publicly — that I was on to something. The subtitle of my book —“how the feds target the innocent” — was nothyperbolic.
I hope that anyone who has doubted the extent to which federal prosecutors are able to, and in fact do with alarming regularity, target the innocent, has been cured of any such illusions by now. However, these kinds of systemic surveys of the dark corners of federal criminal justice — one thinks alsoof Licensed to Lie by former federal prosecutor-turned-defense lawyer Sydney Powell (2014) — are not quite adequate to the task. They are necessary, but not sufficient, for alerting the public and the media as to how an innocent citizen, even a powerful one, can be railroaded.
What has been lacking to date has been a detailed, book-length, step-by-step depiction, in a single case, of precisely how it is done. Cipriano has brilliantly filled in that gap, and now the general public, as well as journalists who so often report on federal prosecutions with all the gullibility of a victim of a three-card monte game, will be able to blame nobody but themselves if they believe the often-blatant propaganda that accompanies so many of these prosecutions and the news reports purporting to cover them.
Target: The Senator brilliantly lays out the federal prosecutorial jihad against one of the most powerful — and colorful — state politicians in recent memory, Vincent J. Fumo, who for so long dominated state politics in his position in the Pennsylvania Senate, a rank he attained after earlier apprentice years spent climbing the ladder. “In the city of Philadelphia and the state of Pennsylvania,” Cipriano writes, “mayors and governors came and went. But from his stronghold in the Pennsylvania Senate, where he held the purse strings to the state budget, Vincent J. Fumo reigned for nearly a generation as a power broker.”
The primaryfocus of Cipriano’s fast-paced and often breathtaking account, however, is not so much the life and career of this fascinating political figure, but rather the federal prosecutors, aided and abetted by often manipulative agents of the FBI, who together were determined to bring down the large prey in their gun sights. This is often done for personal career advancement, but sometimes, it would appear, merely for the enhanced institutional power of the agency for which they worked.
Cipriano has a better understanding of the criminal justice system than most lawyers and even many judges. The phenomenon that he so deftly dissects will have the ring of truth to the sophisticated and experienced criminal justice system participant (including defendant victims and prisoners). To others, the book will be a new and shocking experience that in the end will be depressingly educational.
Fumo was surely no angel, but his more questionable and rangy activities were not serious violations of clear statutes and regulations, but, rather, ethically dubious
Recently retired Harvard Law School professor Alan Dershowitz, in his foreword to Three Felonies a Day, tells the story of the tyranny exercised under the guise of law enforcement in the former Soviet Union in the 1970s and ’80s:
The picture ultimately produced by the feds, who also had the advantage of being able to threaten witnesses with indictment unless their stories supported the prosecutors’ theories, managed to criminalize, in Cipriano’s words, “behavior formerly known as politics as usual.”
Cipriano’s dramatic telling of the story of the rapid rise, but even steeper and more dramatic fall, of one of the most idiosyncratic but powerful state political figures in recent memory would doubtless make, as the Hollywood folks would tout it, a major motion picture.
Sadly, however, the story also belongs in the annals of the corruption of the federal criminal justice system. It is a story whose official version would have been purveyed without dissent by the gullible and sensationalistic Philadelphia news media, if not for the intervention of Cipriano, who has interjected truth as a weapon against raw governmental abuse of power and news media gullibility. Cipriano deserves our thanks for peeling back the curtain on the epicdestruction of Fumo and revealing how it was done. Our job now is to read this important book with care and then to engage, as activist citizens, in an effort to reform the system.
By Ralph Cipriano
On Jan. 28, 2010, Assistant District Attorney Mariana Sorensen and Detective Drew Snyder met behind closed doors at the D.A.'s office with Danny Gallagher, to hear for the first time his tearful tales of abuse.
Snyder had just bailed Gallagher out of Graterford Prison, where he was being held on a probation violation. Gallagher, AKA "Billy Doe," the lying, scheming altar boy, was a third-rate con man with a rap sheet that included a half-dozen arrests for retail theft and drugs, including one bust for possession with intent to distribute 56 bags of heroin. He was just a junkie hustler trying to figure out a way to stay out of jail, and maybe score some easy cash.
So Gallagher told his stories to the prosecutor and the detective. Eight years later, we know those stories were all lies. But eight years ago, the facts didn't matter because prosecutor Sorensen was an ideologue on a mission, out to get the Catholic Church at any cost. And Detective Snyder, who usually investigated insurance fraud, apparently was in over his head.
Behind closed doors, the third-rate conman peddled an improbable story about a helpless altar boy being passed around by three brazen rapists, who were all acting in cahoots. And a couple of chumps named Sorensen and Snyder bought one lie after another, without doing any investigating. When they got finished, Sorensen wrote eleven of Danny Gallagher's outright lies, and a dozen of her own, into the 2011 grand jury report that indicted three priests and a school teacher for rape, as well as a monsignor, for endangering the welfare of children.
As Sorensen noted in that grand jury report, "These are sordid, shocking acts." She could have been talking about the crimes she committed against truth.
Eight years later, why does all of this still matter?
Because the district attorney's office, under our new D.A., Progressive Larry Krasner, is planning to retry Msgr. William J. Lynn later this year on one count of endangering the welfare of a child, namely Gallagher.
Because one of the priests Gallagher sent to jail, the Rev. Charles Engelhardt, died there, after he had been smeared and libeled by a grand jury report as a child rapist, and then was falsely imprisoned for crimes that never happened. The priest died in jail, after spending his last hours handcuffed to a hospital bed, denied a life-saving heart operation, and still protesting his innocence. His life and death ought to matter.
And finally, there's schoolteacher Bernard Shero, falsely accused of rape. A judge recently signed off on an unprecedented plea bargain that let Shero out of jail 11 1/2 years early because of prosecutorial misconduct. But Shero is still falsely labeled on Megan's List as a child rapist. It's a shame and a burden that he and and his family, who have already spent their life savings to get their son out of jail, more than $200,000, should no longer have to carry.
In a just society, Sorensen would bear the shame. She would lose her law license, and that grand jury report she wrote would be retracted. The D.A.'s office would drop its planned retrial of Msgr. Lynn; Father Engelhardt's reputation would be restored, along with a posthumous apology. And Bernie Shero would no longer have go through life falsely labeled as a child rapist.
In a just society, former Assistant District Attorney Sorensen would be indicted, and former D.A. Rufus Seth Williams would be dragged into court wearing his jumpsuit, so both of them could be prosecuted for filing a false instrument. That's the 2011 grand jury report, which we know now is a complete work of fiction. A work of fiction that's about to be destroyed today, along with the reputation of its author.
But this is Philadelphia, where they can put a district attorney in jail for taking bribes, but the crimes he committed against Lady Justice go on and on. That's because we have a criminal justice system that likes to pretend it's infallible. And because in this city, we appear to have an endless supply of prosecutors who love the headlines they get when they're going after the Catholic Church. Even though the current crusade is based on lies.
So attention Progressive Larry Krasner, this is what you just bought into. In seeking to retry Msgr. Lynn, for the sake of headlines, you just bought in its entirety that fraudulent 2011 grand jury report. You just bought Danny Gallagher as your fraudulent "victim" and star witness. And you just bought Mariana Sorensen as your sullied prosecutor, with all of her lies and supposedly non-existant notes that suddenly reappear after eight years. Notes that various members of the D.A.'s office at two criminal trials, and in front of three different judges, have repeatedly lied about by saying they didn't exist.
Today, we're going to dive into Sorensen's long-lost notes and examine eleven Danny Gallagher lies in those notes that Sorensen subsequently wrote into that 2011 grand jury report without doing any investigating. These are lies that were subsequently exposed by the work of the D.A.'s own detectives, who blew up a false narrative. Then, of course, Sorensen wrote another lie into that grand jury report of her own making, and made up eleven more lies about the other alleged victim in the case, which we will cover as well.
And the defense responds by putting the D.A.'s office on trial. By calling former Detective Joe Walsh and former ADA Mariana Sorensen as its star witnesses.
Lie No. 1: Who Put Away The Wine After Mass.
What Sorensen wrote in her notes: "Father [Charles] Engelhardt was the first one to abuse Danny"when he was 10 years old, Sorensen wrote. "Right after mass, the priest caught Danny drinking the wine he was supposed to pour down the drain (the altar boys always liked drinking the wine)."
What Sorensen wrote in the Jan. 21, 2011 grand jury report:"While Billy was cleaning up in the church sacristy, Father Engelhardt caught him drinking some of the leftover wine. The priest did not scold the 10-year-old altar boy. Instead, he poured him more of the sacramental wine and began asking personal questions, such as whether he had a girlfriend" before the priest supposedly showed the boy pornography.
The truth: Almost a year after the grand jury report came out, on Jan. 9, 2012, Detective Joe Walsh interviewed Danny Gallagher's older brother, James, who not only served as an altar boy at the same church, but also served as a church volunteer known as a sexton. In a 14-page signed statement, James Gallagher told Walsh that it was a couple of sextons who put away the sacramental wine after mass, and not the altar boys.
"The sextons would take care of the sacraments," the older brother told the detective. This was backed up in other interviews Walsh conducted with priests and nuns at St. Jerome's, the alleged site of the serial rape spree.
At the Engelhardt-Shero trial, the jury sent a note to the judge, asking why James Gallagher wasn't called as a witness. The answer, according to defense lawyers in the case, was that the prosecutors misled them about James Gallagher's availability as a witness, to dodge a subpoena sent through the mail. The end result, according to the defense lawyers -- the prosecutors were able to hide an exculpatory witness during trial.
But hey, at a retrial of Msgr. Lynn, why not recall the older brother, a lawyer, and put him on the spot by asking to explain again how he knew his younger brother was lying?
Lie No. 2: The Myth Of "Sessions."
What Sorensen wrote in her notes:"I hear you had your sessions with Father Engelhardt," Father Edward Avery supposedly told poor little innocent Danny, while the priest had a smile on his face, and supposedly added,"You know what I'm talking about. I'll be talking to you soon."
What Sorensen wrote in the grand jury report: She had Father Engelhardt use the secret code word for sex abuse first, "He [Engelhardt] also told Billy that it was time for him to become a man and that 'sessions' with the priest would soon begin. With that enigmatic statement, Father Engelhardt let Billy go to school. At the time, the fifth grader did not understand what the priest meant . . ."
"A few months after the encounter with Father Englehardt, Billy was putting the bells away after choir practice when Father Edward Avery pulled him aside to say that he had heard about Father Engelhardt's sessions with Billy and that his sessions with the boy would soon begin. Billy pretended he did not know what Father Avery was talking about, but his stomach turned."
"He [Engelhardt] said that's a phrase that's been put in my mouth, it's been put in Avery's mouth," defense lawyer Michael J. McGovern remembered his client telling him. "That's a term I've never used,"the priest told his lawyer. Furthermore, "He [Engelhardt] has never heard a priest use that phrase,"McGovern said.
Avery was just as mystified, according to his lawyer, Michael E. Wallace. "I was with him 16 months and I never heard him use the term," Wallace said about sessions. "He didn't know what the hell he [Danny Gallagher] was talking about."
So "sessions" was a drug counselor's term that Danny Gallagher borrowed when he invented his tales of abuse.
Lie No. 3: The Bell Choir.
What Sorensen wrote in her notes: "On Friday, when Danny did bell choir, Avery approached Danny as he was helping with bell choir . . ."
What Sorensen wrote in the grand jury report: Billy "also participated in the 'maintenance department' of the school's bell choir, meaning he took the bells out of their cases before choir practice and put them away at the end."
"A few months after the encounter with Father Englehardt, Billy was putting the bells away after choir practice when Father Edward Avery pulled him aside . . . "
The truth: At the trial of Father Engelhardt and Bernard Shero, three teachers from St. Jerome's, including the church's longtime music director, testified that only eighth grade boys were allowed to be members of the bell choir maintenance crew. Not only were fifth grade boys barred from serving on the maintenance crew, the teachers told the jury, but so were sixth and seventh grade boys.
It was the same story the three teachers had told Detective Joe Walsh, when he showed up at the school to investigate Danny Gallagher's cockamamie stories.
Unlike former ADA Sorensen and Detective Snyder, Detective Joe Walsh did some investigating; he went out and talked to the teachers at St. Jerome's, and then he showed their witness statements to Danny Gallagher.
"When confronted with this information, Gallagher could not provide an answer and remained quiet with his head down," Walsh wrote in a 12-page affidavit. "I told him that at the trial the judge would instruct him that he had to answer the lawyers' questions, that he just could not be able to not answer the questions."
"Gallagher remained silent and did not provide an answer," Walsh wrote. "I concluded all this information was a lie."
Lie No. 4: The books under Danny's bed.
What Sorensen wrote in her notes: "When Danny left the room, they [his parents] told me that something they could never understand was starting to make sense. They said that Danny is a hoarder, and that he kept things hidden around his room. They said one thing he kept for years under his bed was a book on sexual abuse. They thought that maybe he had taken it from the library of Christian Academy, where he finished high school after being kicked out of [Archbishop] Ryan. They said that they had asked Danny about it once when he was in high school, but that he had said the book was for a report he was doing."
What Sorensen wrote in the grand jury report: "He [Danny] checked books out of the library about sexual abuse."
"It was at an inpatient drug treatment facility that Billy first told someone about his abuse. Billy's mother testified that she probably should have suspected something before then, because she found two books about sexual abuse hidden under Billy's bed, when he was in high school. She asked him about the books at the time, but he covered up for his abusers by telling her that he had them for a school assignment."
In fiction, this rhetorical device is known as the omniscient narrator. In non-fiction, it's what we call a lie.
The truth: The two textbooks on sex abuse that Danny Gallagher kept under his bed were not taken out of the high school library by Gallagher. A detective did some brilliant detective work. He opened one of the books and discovered a library card inside that said the books had been borrowed from the Ogontz branch of the Philadelphia Free Library by Chanee Mahoney, another student at Christian Academy, the new high school that Gallagher had transferred to.
On Jan. 17, 2012, Detective Fisher interviewed Mahoney, then 24, who told him she had checked the books out of the library, and either put them in her locker, which was unlocked, or left them out on a table. About Danny Gallagher, who Mahoney said was always getting into trouble, "could have gone in the locker . . . I definitely did not give them to him." The implication from Mahoney was that Danny Gallagher had stolen the books.
Walsh subsequently confronted Danny Gallagher.
Lie No. 5: Switching Masses
What Sorensen wrote in her notes:"After his encounters with [Father Edward] Avery, he [Danny] would avoid seeing masses with Avery (he could do this by trading with other altar boys).
What Sorensen wrote in the grand jury report:"From then on, Billy avoided serving Mass with Father Avery by trading assignments with other altar boys. But, like many children who are sexually abused, he was too frightened and filled with self-blame to report what had been done to him."
Nice dramatic touches. What a novelist that Sorensen is!
The truth: When Detective Walsh interviewed James Gallagher, Danny Gallagher's older brother, he asked him as a former altar boy what he would have had to do to switch a mass. The older brother said switching a Mass wasn't as easy as Danny Gallagher made it sound.
"I would need a good reason for my parents -- If I wanted to switch with someone," James Gallagher told the detective. "Next I would have to get approval from Father Graham [the church pastor] and call the altar server you wanted to switch with."
When Detective Walsh questioned Danny Gallagher, he asked how the former altar boy could have known which priest was serving Mass because the schedule changed daily. The schedule of priests serving Mass, the priests and nuns at St. Jerome's told the detective, was posted only inside the rectory, where Gallagher wouldn't have access to it. Only priests had access to the Mass schedule.
When confronted by Walsh, Danny Gallagher had no answers.
Lie No. 6: Danny Gallagher was alone in the sacristy with Father Engelhardt.
What Sorensen wrote in her notes: "Right after Mass, the priest caught Danny drinking the wine . . . they were in the room where they get dressed. Engelhardt asked Danny to stay."
What Sorensen wrote in the grand jury report: "Billy was a 10-year-old altar boy in the fifth grade at St Jerome School in Philadelphia . . . While alone with him in the sacristy, Father Charles Engelhardt began to show Billy pornographic magazines. Eventually, the priest directed Billy to take off his clothes . . ."
The truth: When Detective Walsh interviewed James Gallagher, Danny's older brother the lawyer, he
said there were two altar boys assigned to every Mass. In addition, two sextons were around before and after the altar boys showed up and left, and that it was one of the sextons who had the key to the church. So it was the sexton who was the first one there at the church to open the doors, and the last one to leave, after he locked up. Also, as opposed to what Danny Gallagher claimed, that the priest locked all doors to the sacristy before he raped poor little Danny, older brother James told the detective that the doors of the sacristy were always kept open during the Mass, including one propped open with a door. One of those open doors in the sacristy led to the only bathroom in the tiny church.
When Detective Walsh talked to the priests and nuns at St. Jerome's they confirmed there were two sextons and usually a couple of other altar boys at each Mass; in addition, the pastor of the church, was usually hanging around the sacristy, so it was unlikely that the priest was ever alone with Danny, so he could supposedly rape him, as Danny Gallagher claimed. Also, the priests and nuns told the detective that he doors of the sacristy were kept open during Mass.
When Detective Walsh confronted Gallagher, he had no answers.
Lie No. 7: Danny Gallagher was alone with Father Avery after Mass.
What Sorensen wrote in her notes:"The next encounter with Avery occurred in the summer before sixth grade--near Danny's birthday (July 14)(he was turning 11). Danny had served a funeral Mass with Father Avery and Father Graham. Father Graham went to the burial . . . Avery sent the other altar servers home, but asked Danny to stay and help clean up. Avery said it was time for their next session . . . and it would be quick and feel good. They went into the same room [a supply closet] as before. Danny said that Avery had on this smile like he couldn't wait for it . . . Avery proceeded to tell Danny to strip and dance. Avery started to strip too . . ."
What Sorensen wrote in the grand jury report:"Following an afternoon Mass . . . Billy was cleaning a chalice, Father Avery again directed the 10-year-old to strip for him. When Billy did as he was told, the priest fondled and fellated him . . ."
The truth: In his affidavit, Walsh explained that he asked Gallagher how he could claim that he was sexually abused by Father Avery after a funeral Mass in July 1999, when he was supposedly left alone with the priest. But the church register that listed all funeral Masses, as well as all the priests who served, showed that Avery had served at no funeral Mass that year. Another point raised by Walsh: according to the register, there were usually two priests serving at every funeral Mass.
In his affidavit, Walsh stated that he confronted Gallagher by showing him the church register.
"After a very long pause Gallagher then said there were two priests there who said the Mass. And that the other priest went to the cemetery and Fr. Avery remained at the church," Walsh wrote. "I then asked [Gallagher] where was the sexton, [an older man who was a church volunteer] who had to clean the altar and put the vestments away and put everything else away after Mass."
What Sorensen wrote in her notes: "A week or two later, he got really sick," Sorensen wrote about the aftermath of schoolteacher Bernard Shero raping him. "Missed school Lost 20 lbs. He had a bad cough, and at the end of each cough, he'd vomit. When he went back to school, Shero went back to the same demeanor, rubbing [Danny's] back, etc . . . Danny would walk away."
What Sorensen wrote in the grand jury report:"In the sixth grade, when Shero raped and orally sodomized him, he went through an extended period when he would gag and vomit for no reason. His mother took him to doctors of both conditions, but there was never a diagnosis . . ."
The truth: In his closing statement to the jury in the Engelhardt-Shero trial, prosecutor Mark Cipollettti repeatedly said that after he was attacked by Shero, Danny Gallagher missed three and a half days of school. But when they pulled his report card for that marking period it showed zero absences. Also, Danny's medical records showed no drastic weight loss.
Lie No. 9: Father Engelhardt raped Danny Gallagher.
What Sorensen wrote in her notes:"Father Engelhardt was the first one to abuse Danny, and afterwards, the priest supposedly said, "That was a good session" and "You are dismissed."
What Sorensen wrote in the grand jury report: "While alone with him in the sacristy, Father Charles Engelhardt began to show Billy pornographic magazines. Eventually the priest directed the boy to take off his clothes . . . After ejaculating on Billy, Father Engelhardt told him he was 'dismissed.'"
"After that, Billy was in effect passed around to Engelhardt's colleagues."
The truth: Danny Gallagher claimed that after he was raped by Father Engelhardt, he sat outside on the steps at St. Jerome's for an hour in the dead of winter, and waited for the school to open. But Detective Walsh knew from Danny's older brother that the parents typically drove both altar boys to and from the church.
"I asked [Danny] Gallagher to explain why his parents would permit him to walk approximately one mile from their house to the church carrying his cassock and school books at 6:00 a.m. in the dark, in December, when his older brother said he always got a ride to and from church when he served 6:15 a.m. Mass," Walsh wrote.
"I asked him [Danny] how his parents would permit him to sit outside school for about one hour after Mass waiting for school to open," Walsh wrote. "I told Gallagher I didn't believe his parents would permit him to walk to church at 6:00 a.m. and then remain outside school for about one hour."
Lie No. 10: Father Avery raped Danny Gallagher.
What Sorensen wrote in her notes: "Father Avery was the second adult to abuse Danny . . . Avery was 'quite forceful' and Danny thought he'd get in trouble if he didn't obey." Afterwards, the priest had Danny sit in his lap and he told the boy, "I'm proud of you," and, "You will be rewarded."
What Sorensen wrote in the grand jury report:"After that [the Engelhardt attack], Billy was in effect passed around to Engelhardt's colleagues. Father Edward Avery undressed with the boy, told him that God loved him, had him engage in oral intercourse . . . The session ended when Father Avery ejaculated on Billy and told him to clean up. The priest told Billy that it had been a good
session, and they would have another again soon."
The truth:"When I questioned Gallagher about all these discrepancies," Detective Walsh wrote in his affidavit, "he just put his head down and did not answer me," Walsh wrote. "I asked him several times for an answer, but he would not answer me. I concluded Gallagher was not sexually abused by Fr. Avery."
What Sorensen wrote in her notes: "Shero offered him a ride . . . Shero said: 'It's time for your sex education.' He starts to undo his own pants and tells Danny to undo his . . . After the sex is over, Shero's demeanor changes. He throws Danny's clothes at him and tells him he was very good. He then made Danny walk home. He says he'll see Danny in school." When Danny gets home, "he hopped in the shower, but felt like he couldn't get clean."
What Sorensen wrote in the grand jury report:"After that [Engelhardt attack], Billy was in effect passed around to Engelhardt's colleagues," she wrote. After Avery abused Billy, "Next was the turn of Bernard Shero, a teacher in the school," Sorensen wrote. "Shero offered Billy a ride home, but instead stopped at a park, told Billy they were 'going to have some fun,' took of the boy's clothes, orally and anally raped him, and then made him walk the rest of the way home."
The truth: Detective Walsh asked Gallagher about his alleged sexual assault by Shero, and Gallagher's original claims. Gallagher had previously told two social workers for the archdiocese, as well as to one of his drug counselors, that Shero had allegedly punched him in the face before he attempted to anally rape him.
Then, Gallagher claimed he was high on drugs and didn't remember what he told the social workers or the drug counselor.
But Walsh knew from his investigation that none of that was true. In his affidavit, Walsh related how he explained to Gallagher that he had interviewed a trio of witnesses -- the drug counselor, one of the social workers, as well as Gallagher's own father -- and that the three witnesses "all said he [Gallagher] was not high on drugs," the detective wrote.
"Gallagher didn't answer me," Walsh wrote. "He put his head down and refused to answer. I concluded that Gallagher was not sexually abused by Mr. Shero."
What Sorensen wrote in her notes: At age 14, Danny changed," Sorensen wrote, after questioning Gallagher's parents. "He got kicked out of High School. They [the parents] didn't know what had precipitated the change. They attributed his behavior to the death of his grandmother, and that they had allowed him to see her as she was dying [or her body after she died??]"
What Sorensen wrote in the grand jury report:"Billy’s mother also told us of a dramatic change in her son’s personality that coincided with the abuse. His friends and their parents also noticed this personality change. Billy’s mother watched as her friendly, happy, sociable son turned into a lonely, sullen boy. He no longer played sports or socialized with his friends. He separated himself, and began to smoke marijuana at age 11. By the time Billy was in high school, he was abusing prescription painkillers, and eventually he graduated to heroin."
The truth: The personality change took place in high school, when he was 14. It did not happen back in grade school, at St. Jerome's, when Danny was 10 and 11 years old, and according to his mother's grand jury testimony, was either described as "either Dennis the Menace or the All-American boy." And according to Danny's parents, his personality change wasn't because of abuse, it was because Danny's grandmother died.
Lies 13-23: The other alleged victim in the 2011 grand jury indictment, Mark Bukowski, then 14, was anally raped by Father James J. Brennan back in 1996.
What Mark Bukowski told the grand jury: "I got into bed with him [Father Brennan] and . . . He began to hug me from behind . . . I felt his erect penis between my butt cheeks. My boxers were still on, however, I do not know if he had shorts on . . . I remember lastly thinking what the fuck happened tonight and crying myself to sleep with his penis still between my butt cheeks, saying to myself over and over again, why is this happening?"
Ok, we can all agree if the witness is telling the truth, none of this should have ever happened. But what does Sorensen do with this grand jury testimony? She throws gas on the fire by turning what Father Brennan's lawyer termed a "savage spooning" into an anal rape. While both the attacker and the victim, according to Bukowski's trial testimony, had their t-shirts on, as well as their boxer shorts.
That grand jury report, as well as its lying author, is what Progressive Larry Krasner has just bought into.
At any retrial of Msgr. Lynn, his lawyer, Thomas A. Bergstrom, will almost certainly call Mariana Sorensen as a witness.
Bergstrom also plans to call as his star witness, Detective Joe Walsh, formerly of the D.A.'s office, and the lead detective on the Danny Gallagher case.
Walsh will explain how he repeatedly told Sorensen that the evidence he was gathering proved that Danny Gallagher wasn't credible. And then Walsh willl testify that no matter what he said, Sorensen kept telling him that she still believed Danny, before finally saying, "You're killing my case."
So Progressive Larry Krasner, when it comes to a retrial of Msgr. Lynn, the lies of Danny Gallagher and Mariana Sorensen might kill your case.
In Philadelphia, under our new D.A., Progressive Larry Krasner, it's now legal to be a prostitute, providing you're just getting started.
Under new policies announced on Feb. 15th by Krasner, his assistant D.A.s are being told "do not charge prostitution cases against sex workers where a person who has been arrested has two, one, or no prostitution convictions." In the case of a new hooker, ADAs are instructed to "withdraw all pending cases in these categories that would be declined for charging under this policy."
But if a person has "three or more prostitution convictions," then an individual can be "charged with prostitution and immediately referred to DAWN Court," the new rules state. It's enough to make you wonder what Larry Krasner has against old hookers.
Other offenses that ADAs are being told to decline charging include possession of marijuana "regardless of weight," and paraphernalia offenses "where the drug involved is marijuana."
A former prosecutor who read the new policies described them as "agenda driven," adding, "He [Krasner] is very naive and obviously he's someone who has zero experience dealing with crime victims and the effects of crime."
Summary offenses are the most minor type of criminal offense in the state, such as loitering or disorderly conduct, and are usually punishable by a fine. Under the Krasner regime, ADAS are told, "You must seek supervisory approval to charge and dispose of retail theft cases at misdemeanor or felony levels."
"Remember, that a summary conviction permits a sentence of 90 days incarceration, fines up to $250, and full restitution," the new policies state. "These penalties are sufficient to hold a retail theft accountable."
Under the new policies, Krasner is telling his ADAs he wants them to divert more cases. Diversion programs, such as community service, restitution, or taking an educational course, are an alternative to normal sentencing that allows the offender to avoid charges and a criminal record.
"All attorneys are directed to approach diversion and re-entry with greater flexibility and an eye toward achieving accountability and justice while avoiding convictions where appropriate," the new policies state.
For example, "an otherwise law-abiding, first DUI (driving under the influence) defendant who has no driver's license (regardless of whether or not that defendant's immigration status interferes with obtaining a license under Pa. law) may apply for individualized consideration for diversion with a requirement of efforts to overcome license impediments where possible as an aspect of any diversionary program."
Also, defendants charged with marijuana delivery or possession with intent to deliver may apply for diversion programs, the new policies state.
When it comes to sentencing, Krasner wants his assistants to "state on the record the benefits and costs of the sentence you are recommending."
"The United States has the highest rate of incarceration in the world," the new policies state. "It has increased 500% over a few decades. Pennsylvania and Philadelphia have been incarcerating at an even higher rate than comparable U.S. states and cities for decades -- a 700 percent increase over the same few decades in Pennsylvania; and Philadelphia in recent years, has been the most incarcerated of the 10 largest cities. Yet Pennsylvania and Philadelphia are not safer as a result, due to wasting resources in corrections rather than investing in other measures that reduce crime."
Accordingly, ADAs under Krasner are actually required to state the costs of incarceration when they're recommending a sentence to a judge in a criminal case.
"At sentencing, ADAs must state on the record their reasoning for requesting a particular sentence, and must state the unique benefits and cotes of the sentence," the new policies state. The document then lists the costs of incarceration, $42,000 a year for one person, which boils down to $3,500 per month or $115 a day. If you add up pensions and other benefits to correctional employees, the total cost for incarcerating one individual in Philadelphia is "close to $60,000 per year," the new policies state.
That's comparable to a year's salary for a beginning teacher, police officer, firefighter, social worker, assistant district attorney or addiction counselor, the new policies state. So if an ADA is recommending that somebody go to jail for three years, the cost to the taxpayer is at least $126,000, the new policies state. If you're going to put somebody away for 25 years, it will cost $1,050,000. If an ADA is going to recommend a sentence such as 25 years, he or she must "explain why they believe that cost is justified."
At a press conference today to announce his new policies, Krasner declared, "A dollar spent in incarceration should be worth it."
In addition, Krasner is asking his ADAS to request shorter periods of probation. The new policies cite chronological studies that show that most violations of probation occur during the first 12 months.
Krasner also instructs his ADAs that a positive drug test for marijuana is no longer a parole violation, as is possession of marijuana "without supervisory approval."
So all you parollees, as far as Larry Krasner is concerned, smoke 'em if you got em.
|Former Assistant District Attorney Mariana Sorensen [right]|
As Desi Arnaz used to say on the old I Love Lucy show, "Luuucyyy, you got some 'splainin to do!"
Now reprising the role of Lucy: former Assistant District Attorney Mariana Sorensen.
Court records show that defense lawyers in the "Billy Doe" sex abuse case had repeatedly sought Sorensen's long-lost notes from her initial interview eight years ago with Billy Doe, the lying, scheming altar boy whose real name is Danny Gallagher. In three different courtrooms, in front of three different judges, three different prosecutors from the D.A.'s office, including Sorensen, have repeatedly stated that those notes didn't exist. But then those notes mysteriously reappeared last month, and somebody was kind enough to drop a copy on BigTrial.net.
The notes, a glaring example of prosecutorial misconduct, are relevant again. That's because the D.A.'s office, under the reform leadership of Progressive Larry Krasner, is proceeding with a planned retrial of Msgr. William J. Lynn. The Archdiocese of Philadelphia's former secretary for clergy is accused of endangering the welfare of a child, Gallagher, by allegedly placing him in harm's way of a predator priest. But today we know that Gallagher previously admitted to Detective Joe Walsh, the lead detective on the case who filed a sworn affidavit, that Gallagher made up his stories of abuse about supposedly being raped by two priests and a Catholic schoolteacher.
But the legal show grinds on. Lawyers on both sides of the Msgr. Lynn case are scheduled to appear in state Superior Court on Tuesday morning, to argue appeal motions filed over the planned retrial of the monsignor. The Superior Court has twice already overturned the Lynn verdict; the monsignor's lawyers on Tuesday will be going for the trifecta. At the hearing, expect Lynn's lawyers to show those appeal judges Sorensen's long-lost notes, and talk about a continuing pattern of prosecutorial misconduct in the case originally championed by former D.A. Rufus Seth Williams, now wearing a jumpsuit in a federal prison in Oklahoma.
The trail of deception emanating from the D.A.'s office begins on July 29, 2011, when Judge Lillian Ransom was presiding over a pretrial hearing attended by five assistant district attorneys and five defense lawyers. The subject was whether the D.A.'s office had turned over to defense lawyers in the archdiocese sex abuse case all the evidence it had gathered for prosecution, as required by law.
This was before the judge severed the case involving five defendants, setting up two trials: the first, with defendants Msgr. Lynn, Father James J. Brennan, and former priest Edward Avery; the second, with defendants Father Charles Engelhardt and former schoolteacher Bernard Shero.
"This is where I need to talk to you about any statements at some earlier point that Mr. [Danny] Gallagher may have made as far as interviews at or with members of the D.A.'s office," Assistant District Attorney Sorensen told Judge Ransom. "I checked with [Deputy District Attorney] Charlie Gallagher. There's nothing discoverable."
There was only one problem with Sorensen's alibi. When she said it, Charlie Gallagher was long gone from the D.A.'s office, and had absolutely nothing to do with the case.
Two years earlier, on July 8, 2009, former District Attorney Charles Gallagher had retired from the Philadelphia D.A.'s office after 30 years, and taken a new job as the chief deputy district attorney of Lehigh County. So if Sorensen was telling the truth, why was she running anything past Charlie Gallagher?
"I know that occasionally a piece of paper gets turned the wrong way," the judge replied to Sorensen. "If you come across anything, turn that over."
"Yes, Your Honor," Sorensen replied.
"I'll accept your representation as it stands now," the judge said.
"Thank you," Sorensen replied.
In his motion, Rose noted that he had "repeatedly requested" that he be provided with "copies of any statements or interviews" taken by detectives or prosecutors "with regard to Danny Gallagher."
On April 25, 2012, Rose wrote, Danny Gallagher testified at the trial of Msgr. Lynn. On the witness stand, Gallagher talked about his initial interview at the D.A.'s office, after Detective Drew Snyder bailed Gallagher out of jail. Gallagher testified that he "gave a statement" at the D.A.'s office to Detective Snyder, and Assistant District Attorneys Mariana Sorensen and Evangelia Manos. In his motion, Rose noted that "such a statement" had never been provided to the defense.
In his motion, Rose included a letter, dated June 29, 2012, that he sent to the D.A.'s office, requesting any statements made by Gallagher. Then, Rose wrote in his motion, he followed his letter up by telephoning Assistant District Attorney Sorensen, "who stated that she was not aware of any such statement."
On Sept. 14, 2012, the lawyers from both sides of the case were summoned to a pretrial hearing in front of Judge Ellen Ceisler, who would preside over the second archdiocese sex abuse trial, against Father Engelhardt and schoolteacher Shero.
At the hearing, Mike McGovern, the lawyer who represented Engelhardt, who subsequently died in prison, was talking about witness statements in the case.
"We never got a statement from this complaint," McGovern told the judge, referring to Gallagher. "And this historic grand jury, they never took a statement from him. They never took a statement from Dan Gallagher. I know you look shocked," McGovern told the judge. "We're shocked," McGovern said, referring to himself and Rose. "The Commonwealth said they never took a statement."
"We don't need to go off on that now," Judge Ceisler said. "So you're saying at this point that [Rose's] motion asking for Brady material [is] nonexistent?" she said, referring to the landmark 1963 U.S. Supreme Court case of Brady v. Maryland, which established that prosecutors have a duty to turn over any evidence that might benefit a defendant.
That's when Assistant District Attorney Pat Blessington spoke up.
"Right," he said.
On Nov. 15, 2012, lawyers were gathered in Judge Ceisler's courtroom for a pretrial hearing in the Engelhardt-Shero case. And the subject was whether the prosecution could call Assistant District Attorney Mariana Sorensen as a witness at the Engelhardt-Shero trial.
At the hearing, McGovern stated that he thought that was a bad idea, because Sorensen was such a partisan. When he stated his opinions to Judge Ceisler, however, McGovern had no idea how partisan Sorensen was. And that she might be partisan enough to hide seven pages of notes for eight years.
"Mariana is very much invested in the case," McGovern told the judge. "She's very invested in the prosecution of this case and I think it comes through in her writing that she's very emotionally committed to the prosecution of the case, has been involved in the grand juries for abut a decade now. I don't see where it is probative and relevant and admissible for Ms. Sorensen to educate the jury in this case as to what the history was leading up to the arrest of these defendants."
"So," the judge said, "your argument is that she [Sorensen] is not going to be a properly unbiased witness, that she'll be too inflammatory and possibly prejudicial, number one, and two, that it's not relevant?"
McGovern decided to stay away from personal attacks.
"Number one, that it's not relevant," McGovern said.
In response, Assistant District Attorney Evangelia Manos argued that she still wanted to call Sorensen as a witness, because "she's an essential part of the case."
Eight years later, it looks like former ADA Sorensen is more essential than ever, as Msgr. Lynn's lawyer plan to subpoena Sorensen as one of their own witnesses, so she can testify about her first-hand knowledge about prosecutorial misconduct in the case.
By Ralph Cipriano
A lawyer for Msgr. William J. Lynn told a panel of state appeal court judges today that former Assistant District Attorney Mariana Sorensen knowingly put a witness on the stand that the lead detective in the case had repeatedly warned her was not truthful.
"She knew he was gonna lie," Thomas A. Bergstrom said about Sorensen and her star witness, Danny Gallagher, the lying, scheming altar boy.
Bergstrom accused the D.A.'s office of taking an "Alice in Wonderland" approach to the archdiocese sex abuse case. First, back in 2011, they indicted Msgr. Lynn, three priests, and a Catholic schoolteacher. Then, they asked Joe Walsh, their "hand-picked detective," to investigate the case, to see if Gallagher's allegations were true, Bergstrom told a panel of three state Superior Court judges. And what the detective discover? That their "one and only witness is lying," Bergstrom said, referring again to Gallagher.
That's why Sorensen, according to Walsh, told the detective, "You're killing my case," Bergstrom said. Because she knew if Walsh was right, that Danny Gallagher was a liar, "my case is over," Bergstrom told the judges.
Judge Eugene Strassburger interrupted to ask if Sorensen's alleged statement "could simply be hyperbole."
No way, Bergstrom said. "She doesn't care," Bergstrom said about Sorensen. "She knows he's lying," he said about Gallagher, but she "put him on the stand" any way. "The Commonwealth had every reason to believe he's lying."
In rebuttal, Assistant District Attorney Anthony Pomerantz replied that it didn't matter what Walsh's opinion was of Danny Gallagher; nor did it matter what Sorensen believed. The only thing that mattered for Lynn to be guilty of endangering the welfare of a child, Pomerantz said, was for him to "knowingly violate" his duty to protect children from a known abusive priest. The monsignor did that, Pomerantz said, by putting a known abusive priest back in active ministry, where he could potentially harm more kids.
If Danny Gallagher is a liar, Pomerantz asked the judges, then why did that abusive former priest, Edward Avery, plead guilty back in 2012 to conspiracy to endanger the welfare of a child and involuntary deviate sexual intercourse?
Pomerantz didn't mention Avery's explanation under oath -- that the former priest, then 69, was looking at a prison sentence of 13 1/2 to 27 years in jail, and was facing a hostile judge, M. Teresa Sarmina, when he pleaded guilty to two crimes he testified that he didn't commit.
"I didn't want to die in prison," the former priest testified, explaining why he took a sweetheart plea bargain on the eve of the Lynn trial, and got only 2 1/2 to 5 years in jail. He wound up serving the full sentence and was released from prison last year.
At his trial in 2012, Msgr. Lynn was convicted on one count of endangering the welfare of a child, and sentenced to 3 to 6 years in jail. He served 33 months of his minimum 36 month sentence before his conviction was overturned for a second time by the state Superior Court in 2016. The court had previously overturned Lynn's conviction back in 2013. This is the third time the Lynn case has gone up on appeal to the Superior Court.
Today's hearing, under chandeliers and sconces in an ornate courtroom, began with Assistant District Attorney Pomerantz arguing that the panel of judges should overrule Judge Gwendolyn Bright's decision to limit the D.A.'s office to introducing as supplemental evidence, just three additional cases of sex abuse in the archdiocese.
Since the beginning of the case, the strategy of the D.A.'s office has been to put the Catholic Church on trial. They did that at the original Lynn trial by introducing as evidence 21 supplemental cases of sex abuse dating back to the 1940s, before Lynn was born. The supplemental cases were introduced as evidence to show a pattern in the archdiocese of covering up sex abuse.
But the state Superior Court overturned Lynn's conviction in 2016, by arguing that the prejudicial effect of the 21 supplemental cases, which took up 25 days of the 32-day trial, far outweighed their value as evidence.
In response, the D.A.'s office proposed introducing only nine supplemental cases at a retrial of the monsignor, but the trial judge, Judge Bright, approved only three cases. The D.A.'s office then appealed to the state Superior Court, asking the judges to overturn Judge Bright's decision because it allegedly was an abuse of her discretion.
Superior Court Judge Anne Lazarus asked Assistant District Attorney Pomerantz how it could be an abuse of the trial judge's discretion if Judge Bright was willing to allow the prosecution to present three supplemental cases of sex abuse to show a pattern of cover ups in the archdiocese.
Pomerantz's response was that the D.A.'s office had carefully reviewed all 21 supplemental cases, and narrowed the list down to only nine cases that Lynn was involved in. The D.A.'s argument was that Lynn was attempting to protect the church from scandal and abuser priests from jail "at the expense of those children," and that's why he should be convicted again of endangering the welfare of a child.
In response to the D.A.'s appeal over the supplemental cases, Bergstrom also appealed a ruling of Judge Bright, by arguing that the retrial of Msgr. Lynn should be thrown out on the grounds of double jeopardy, because of intentional prosecutorial misconduct.
Judge Bright found there had been prosecutorial misconduct at the original Lynn trial. The misconduct, the judge said, was that the prosecution never told the defense that Detective Walsh had questioned Danny Gallagher before the Lynn trial about several key discrepancies in his allegations of abuse. And that Gallagher had responded by either saying nothing, claiming he was high on drugs, or telling a new story.
But Judge Bright stopped short of throwing the retrial out on the grounds of prosecutorial misconduct, by ruling that the misconduct wasn't intentional. In his appeal, Bergstrom countered that the misconduct was intentional.
Judging by the tepid response both appeal motions got from the panel of judges, however, a knowledgable observer predicted that this time around, the state Superior Court will deny both the defense motion, as well as the prosecution motion. And send the case back to Judge Bright for a retrial of Msgr. Lynn.
At today's hearing, Bergstrom did not mention the recent discovery of Assistant District Attorney Sorensen's long lost notes from her original 2010 interview with Danny Gallagher, after he had just been bailed out of jail by the D.A.'s office, so he could testify against the church.
Sorensen and other prosecutors in the case had previously told three different judges that those notes didn't exist. Then, after a gap of eight years, those notes suddenly reappeared last month.
Bergstrom couldn't bring up those notes because they weren't previously introduced on the record in Judge Bright's courtroom. But when the case goes back to Judge Bright for a retrial, he's free to make plenty of noise about those notes.
In the latest episode of Mob Talk SitDown, George Anastasia and Dave Schratweiser discuss why Skinny Joey Merlino decided last week to cop a plea in New York.
The two ace crime reporters also discuss a couple of pending federal investigations into gambling and drugs, and what it means for the Philadelphia mob.
By Ralph Cipriano
On the 18th floor of the D.A.'s office, Richard Sax, a retired homicide prosecutor, was talking behind closed doors with Assistant District Attorney Pat Blessington.
On Wednesday afternoon, Blessington had summoned Sax to his office to seek his help in fighting the appeal of a third-degree murder conviction. A jury in 2013 found Steven Miller, 22, guilty of shooting to death Maurice Kimble, an unarmed 24-year-old man, outside a restaurant at the Piazza in Northern Liberties, in front of numerous witnesses. Sax, the original prosecutor in the case, had volunteered to testify on behalf of the Commonwealth's efforts to keep Miller in jail. But not everybody was on board with Sax's attempts to help out.
Just minutes into their discussion, Blessington and Sax were startled by a loud banging on the door. Before ADA Blessingon could even say "Come in," a red-faced District Attorney Larry Krasner, barged inside, accompanied by at least four armed members of the D.A.'s security detail, with more on the way.
"He lost it," Sax said about the D.A. "He was spitting fire. He was shaking . . . He was pounding on the door like a storm trooper. He brought his entire posse."
"I was only trying to help," Sax said. But instead, he said, he found himself locked in a face-to-face confrontation with a "mean-spirited" Larry Krasner.
One of Krasner's armed security officers had "a pair of handcuffs hanging in front of his belt," Sax recalled. "I honestly did not know what to expect. It was intimidating. I thought I was going to leave in cuffs."
According to Sax's account of the confrontation, it was Krasner who spoke first.
"Mr. Sax," the D.A. said.
"Mr. Krasner," Sax said he replied.
The two men aren't exactly pals. Sax was the leader of a posse of veteran prosecutors who had publicly proclaimed that Krasner, a career defense lawyer and civil libertarian who had sued the city police department 75 times, would be a disaster if elected as district attorney.
Shortly after he took office, after Krasner fired 31 career prosecutors, Sax told reporters that the new D.A.'s actions were "personal and vindictive," and that the D.A. had targeted prosecutors who had either tangled with Krasner in court when he was a defense lawyer, or had feuded with his wife, Judge Lisa Rau.
Krasner dismissed the fallout over the firings as the "normal growing pains" of an office in transition. And on national radio, Krasner charged that Sax was a member of an old regime that had a "win at all costs" mentality, and was known for targeting people of color.
That upset Sax, who responded on Facebook that many of the crime victims he had stood up for as a prosecutor had also been people of color. Sax has also railed on his Facebook page about how Krasner was "destroying" the D.A.'s office, and that it "may take 10-20 years to undo the damage from his personal, vindictive, counterproductive personnel purge of many of the Best & Brightest & most dedicated" former prosecutors. Sax also dubbed the D.A.'s office the "District Expungement Office," because of what he said was an unwillingness to prosecute criminals.
But that was politics. In person, Sax, despite having his right shoulder in a sling from an operation late last week on a rotator cuff, painfully extended his right hand in an offer of peace to the new D.A.
But Progressive Larry Krasner wasn't willing to shake hands, Sax said. Instead, he acted like he only wanted to fight.
"What are you doing here?" Sax recalled Krasner barking at him.
"I tried to explain that I was invited here and asked to come here to prepare for my testimony," Sax said. But Krasner, according to Sax, wasn't listening.
"He immediately went on the attack," Sax said. "Are you subpoenaed to be here," he kept yelling at Sax. "Are you subpoenaed to be here, yes or no . . . Answer the question, yes or no!"
The D.A. then demanded to see a subpoena if Sax indeed had one.
"It was kind of bizarre," said Sax, a career prosecutor who spent 36 years working at the D.A.'s office, 30 of those years in homicide, before he retired last year.
"After 36 years in the office, every murder case I ever prosecuted was important to me," Sax said. "lt was my case then and it'll be my case till the day I die. There was really no need to give me a subpoena." Anything that ADA Blessington asked him to do to secure justice, Sax said, he was willing to do voluntarily.
But, " I never really had the opportunity to explain that to him," Sax said about the D.A., because Krasner kept screaming at him, demanding to know if he had a subpoena, and wanting to see it.
"Eventually, I said no, I didn't have a subpoena," Sax said. Krasner, Sax said, responded by "repeatedly and aggressively getting in my face" and demanding to know whether Sax had signed in at the front desk.
Sax didn't think he had to. According to his account, he had previously explained to two security officers at the front desk, both of whom he had known for years, that he had been summoned to the D.A.'s office by ADA Blessington. And that Sax would simply wait at the front desk until Blessington came down from his 18th floor office to get him.
Which is what happened, Sax said. The retired prosecutor said he tried to explain this to Krasner, but that Krasner kept cutting him off. The D.A. also cut off Blessington every time he tried to say something, Sax said.
"Those were the only two lines of inquiry," Sax said. Did he have a subpoena, and did he sign in at the front desk. "This went on for five or seven minutes," Sax said, in the presence of five or six security officers. "I felt threatened and intimidated," Sax said. "I felt I was going to be arrested."
In response, Ben Waxman, a spokesman for Krasner, called Sax's description of the incident "a totally inaccurate version of events. Larry did speak to Mr. Sax but only to ask him why he was in the building. The total interaction probably lasted 90 seconds."
No way, Sax said.
"Ben wasn't there, but Pat [Blessington] was, and so were five or six security people," Sax responded. "I was trying to do the right thing."
But Krasner, Sax said, "wouldn't let me talk. He didn't want to hear it. He just wanted to confront me and be incredibly arrogant and mean-spirited."
"He treated me like a criminal," Sax said.
But if he was a criminal, Sax was reminded, Krasner the veteran defense lawyer would have done his best to help him, and keep him out of jail.
Sax laughed, and corrected himself.
"He treated me like someone who's in law enforcement," Sax said. "And he [Krasner] has a real bias against law enforcement. When he was a defense lawyer, to him, every cop was a criminal and every prosecutor was a liar, trying to hide evidence."
In an email, rather than apologize for his boss's boorish behavior, Waxman stayed on the attack.
"Mr. Sax entered the District Attorney's Office without signing in, which is required of all non-employees," Waxman wrote. "He then falsely told two security officers that he was coming into the building because he had been 'subpoenaed.' This was untrue. Mr. Sax then tried to claim that he hadn't lied to the security officers. All of this was documented in a memo by the DAO security detail. Despite all of this, Mr. Sax was allowed to stay in the building because he was helping to prep a case for one of our ADAs."
As far as Sax was concerned, Waxman was playing semantics.
"I would have gladly signed in if anybody asked me to," Sax said. "If he [Krasner] wants to attack me, I understand, but we know what happened. When a D.A. in that office tells me that my appearance is required, I consider that a subpoena."
"If he [Krasner] wants to go back and forth on this, he knows what he did and why he did it."
Waxman, however, contended that the D.A. was concerned about security, especially when it came to critics like Sax.
"Last week, someone on Mr. Sax's personal Facebook page posted that Larry should be 'put down' like a rabid dog," Waxman wrote. "The DAO is a secure building and we expect all visitors to follow the rules designed to ensure the safety of our staff."
Sax conceded that someone had indeed posted a comment on his Facebook page, in response to one of his anti-Krasner posts, and that the commenter did compare the D.A. to a rabid dog."I immediately called him out on it," Sax said, and the offending comment was taken down.
On Thursday, Sax, again at ADA Blessington's request, showed up at the Criminal Justice Center, and waited out in the hallway to be called as a witness during the appeal hearing under the Post-Conviction Relief Act. Miller the convicted killer is currently serving a 23 1/2 to 47 year sentence.
Sax explained to a reporter that he was there to support the victim's relatives, who have showed up faithfully at every court appearance since Kimble was murdered.
"They're a wonderful family," Sax said. "Their loved one was was unarmed and cut down in cold blood simply because he had the gall to talk to a girl who was there with the defendant. A significant part of the murder is on video. The Piazza was packed. He [Miller] did it in front of 22 to 45 witnesses."
But the day ended without Sax being called to testify. He'll have to come back next week when the appeal hearing is continued. Sax said he'll be there, to show his support for the victim's family, as well as ADA Blessington.
"I was trying to do the right thing," Sax said. But he can't say the same about the new D.A.
"He's supposed to be so smart," Sax said. If Krasner had taken "90 seconds" to investigate why Sax was at the D.A.'s office, Sax said, the D.A. could have spared himself a public embarrassment.
But when you're Progressive Larry Krasner, here to lead the revolution, you're always riding a white horse. And sometimes, like what happened on Wednesday, behaving like a horse's ass.
|Our New D.A. Loves To Cuddle Up To Criminals|
Today, at the request of the D.A.'s office, a judge let a convicted murderer go free. Along the way, the D.A. gratuitously smeared the reputation of a former prosecutor who hadn't even been formally accused of misconduct.
It was all in a day's work for Progressive Larry Krasner, the new D.A. financed by $1.6 million of George Soros's money who's making good on his campaign promise to turn the D.A.'s office upside down.
Richard Sax, the former prosecutor targeted in court by Krasner, said afterwards that he applauded the new D.A. for being that "rare breed of politician" who keeps his campaign promises. Sadly, Sax said, the campaign promise that Krasner is keeping involves "emptying the jails."
"I just didn't think he [Krasner] would include murderers," Sax said.
Call him the Great Emancipator.
As a defense attorney, Krasner talked former D.A. Rufus Seth Williams, now in a federal prison serving four years for political corruption, into setting free more than 800 convicted drug dealers arrested by former members of the city police department's Narcotics Field Unit South. The drug dealers were set free even though the D.A.'s office on two occasions had to subsequently admit in court that it possessed absolutely no evidence of any misconduct by those narcotics officers.
On behalf of Newsweek, I was able to track the records of about 400 of those newly emancipated drug dealers. More than 200 were subsequently arrested on charges that included rape, robbery, burglary, aggravated assault, aggravated assault with a gun, attempted murder, and murder. People like Jason Sidiero, who, less than a year after he was released, in 2015, was charged with murder after he allegedly shot to death Michael Walsh.
As D.A., Krasner has already given rapper Meek Mill a pass. Today in court, Common Pleas Court Judge Kathryn Streeter Lewis granted a motion filed by the D.A.'s office to overturn the murder conviction of Dontia Patterson, who was serving a life sentence, because of what the D.A. claimed was "an egregious example of police and prosecutorial misconduct."
Patterson was convicted in 2009 of the murder two years earlier of Antwine Johnson, 18, outside a corner store on Granite Street, after two eyewitnesses testified against the defendant. In a motion to dismiss the charges, the D.A.'s office argued that the prosecutors were "completely lacking in integrity" because they supposedly did not disclose evidence about another possible suspect in the murder of Johnson, a man who himself ound up being murdered a few months after Johnson's murder.
But the D.A. was improvising. No allegation of prosecutorial misconduct had been made during the appeal of Patterson's conviction. Instead, the alleged grounds for throwing out the charges rested on the claimed ineffectiveness of Patterson's defense lawyer. It was the D.A.'s office under Krasner that decided to introduce the allegation that the prosecutors had hid evidence that might have exonerated Patterson.
Former prosecutor Sax dismissed the D.A.'s new allegations as "nonsense."
"Every single piece of possible exculpatory evidence was turned over," Sax insisted. "I've done that for 37 years." Of the hundreds of murder cases he successfully prosecuted during his career, Sax said, not one conviction was ever reversed because of prosecutorial misconduct.
There's one other problem with the overturning of the Patterson case; for more than a year, Crasser has been engaged in a noisy public feud with Sax. That feud culminated in a confrontation last week, when Krasner, surrounded by four to six members of his security detail, pounded on a door on the 18th floor of the D.A.'s office and verbally attacked Sax, who was inside, for allegedly trespassing.
At the time, however, Sax was there at the request of Patrick Blessington, an assistant district attorney under Krasner, who was prepping Sax to testify at another appeals hearing in another murder case that Sax originally prosecuted. Days later after that confrontation, Krasner's minions were smearing Sax in court for alleged misconduct.
"There was not even a claim of prosecutorial misconduct for the D.A.'s office to address," Sax said. "It [the appeal] was sent back for ineffective counsel."
The only way for the D.A. to lodge a claim of prosecutorial misconduct against him, Sax said, was for Krasner to personally order his subordinates to make one up.
Ben Waxman, a spokesman for Krasner, did not respond to a request for comment.
As far as Sax is concerned, the D.A. has a vendetta against him.
"It feels that way to me," Sax said. The investigation into Patterson's appeal was done "so quickly," Sax said. Patterson was released on bail and held on house arrest in March, after Krasner had only been in office for three months.
"The case was in litigation for 12 years," Sax said. Patterson was convicted by a jury, and the case was upheld on appeal by the state Superior Court. There were no allegations of prosecutorial misconduct on appeal.
Sax said he was the victim of an "unfair and unjust attack in a case where a man convicted of murder is now being set free."
Richard Glazer of the Pennsylvania Innocence Project had advocated for years that Patterson was an innocent man, Sax said. Then, Glazer became one of Krasner's "inner circle," Sax said. From then on, Sax claims, the fix was in.
"Larry Krasner didn't need an investigation," Sax contended. The case was so poorly investigated that detectives were unable to contact any member of the murder victim's family, to inform them that the D.A. was about to let the convicted killer of their loved one free. As a result, no member of the victim's family attended today's court hearing.
At the hearing, Anthony Voci, chief of the new D.A.'s homicide unit, quoted the Declaration of Independence and asserted that prosecutors had to ensure that no one is improperly denied the rights to life, liberty, and the pursuit of happiness.
If the D.A.'s office is sincerely interested in overturning cases where prosecutorial misconduct has been committed, they ought to be aborting the planned retrial of Msgr. William J. Lynn.
Lynn, the Archdiocese's former secretary for clergy, was convicted in 2012 of one count of endangering the welfare of a child for allegedly placing a former altar boy known as "Billy Doe" in harm's way of a known abuser priest, Ed Avery.
But Gallagher has subsequently been revealed to be a liar in a case overflowing with prosecutorial misconduct.
Former Detective Joe Walsh has come forward to state in an affidavit that Billy Doe, whose real name is Danny Gallagher, admitted to the detective that he had made up his stories of abuse after Walsh caught Gallagher in one lie after another.
After a hearing in Common Pleas Court, Judge Gwendolyn Bright found the D.A.'s office had committed prosecutorial misconduct serious enough to warrant a new trial for Msgr. Lynn. So if the D.A. was seeking justice in the Lynn case, there would be no need to have to make up any new allegations of prosecutorial misconduct.
In his affidavit, Detective Walsh also disclosed that he repeatedly questioned Gallagher about discrepancies in his many tales of abuse, and that Gallagher's evasive answers and new stories of abuse were never divulged to defense lawyers.
In his affidavit, Walsh also stated that after he repeatedly warned Mariana Sorensen, the lead prosecutor in the case, that his investigation had determined that Gallagher wasn't telling the truth, Sorensen replied, "You're killing my case."
And here's the capper. For the past eight years, ADA Sorensen, as well as two other assistant D.A.s, have testified in three different courtrooms that Sorensen took no notes when she initially interviewed Gallagher back in 2010, shortly after a detective bailed Gallagher out of jail.
And then, eight years, later, seven pages of Sorensen's notes have mysteriously reappeared. Holy Declaration of Independence!
Talk about an egregious example of prosecutorial misconduct, complete with evidence backing that up, Walsh's affidavit, and Sorensen's long-lost notes.
But the D.A.'s office under Progressive Larry Krasner is proceeding full speed ahead with a planned retrial of Msgr. Lynn, who has already served 33 months of his 36-month sentence, plus 18 months of house arrest.
Because Larry Krasner's sense of outrage over prosecutorial misconduct does not extend to Roman Catholic priests falsely accused.
Waxman, the D.A.'s spokesman, was hiding under his desk and unable to respond to a request for comment about prosecutorial misconduct in the Lynn case.
By Ralph Cipriano
On May 14, 2015, FBI Agent Vicki Humpheys, accompanied by an IRS agent, approached Pierre Gomez, a detective formerly assigned to the security detail of then-D.A. Rufus Seth Williams, and asked if Gomez would cooperate in a federal corruption investigation of his boss.
Gomez said yes. His reward, he claimed in a civil rights lawsuit filed today against the city, was to be retaliated against by his superiors in the D.A.'s office.
The day after the FBI buttonholed him, Gomez's lawsuit charged, he was questioned by his bosses at the D.A.'s office about what he told the feds. Weeks later, an investigator who claimedd he had been hired by D.A. Williams's lawyers called and advised Gomez that the city "could make it good" if he remained loyal to his boss.
The lawsuit, filed in U.S. District Court, seeks "in excess of $200,000" in damages, and names as defendants the city of Philadelphia, D.A. Larry Krasner, Chief of County Detectives Claude Thomas, and county Detective Kenyatta Lee.
Gomez, a former member of the D.A.'s Dangerous Drug Offenders Unit, was assigned to a special task force with the Drug Enforcement Agency. "Detective Gomez excelled in his position," wrote his lawyers, Robert J. McNelly and Shawn M. Rodgers of Hatboro. "He assisted in hundreds of complex narcotics investigations, and became a highly valued asset to the federal agents who oversaw his work."
But then the D.A.'s office reassigned Gomez to the Criminal Complaints Unit, " a far less prominent position, which fails to utilize the skills and experience that Detective Gomez obtained working complex federal investigations," the lawsuit states.
There was a reason why Gomez was demoted.
"For the past two years, Detective Gomez has cooperated with the federal investigation concerning the corruption charges of former District Attorney Seth Williams," the lawsuit states. "As a result of his cooperation, Detective Gomez suffered systematic retaliation from the City and the District Attorney's Office. The latest transfer to the Criminal Complaints Unit is only the most recent example of the severe and pervasive adverse actions, with which Detective Gomez has been forced to endure."
The county had "targeted Detective Gomez and acted to discourage him from assisting investigators," the lawsuit states. "Specifically, it sought to prevent Detective Gomez from testifying before the Grand Jury and at a possible future trial. The county's retaliatory conduct violates Detective Gomez's fundamental rights protected by federal law and the United States Constitution."
Working on Williams's protection detail from 2010 to 2014, Gomez "gleaned much information regarding Williams's activities," the lawsuit said. But Gomez's cooperation with the feds did not sit well with his bosses, who, according to the lawsuit, lied to him, and tried to smear him.
"Lt. Lee claimed that the DEA task force no longer has use for Detective Gomez," the lawsuit said, even though that assertion was "directly controverted by [DEA] Assistant Special Agent In Charge Ralph Reyes and Group Supervisor Special Agent Greg White."
Lt. Lee, the lawsuit states, "filed an improper reprimand memo against [Gomez], citing specific violations of Police Department rules and regulations." The reprimand memo, the lawsuit claims "was baseless and a transparent attempt to tarnish the stellar employment record of Detective Gomez."
Among the retaliatory acts, the lawsuit claims, was the decision by Gomez's bosses to deny about $30,000 worth of overtime assignments for Gomez to work in the wiretap room. Gomez's repeated requests to work overtime were repeatedly denied by his superiors, the lawsuit states.
In 2016, the lawsuit states, Gomez's superiors leaked the detective's "name and personal information" to a Philadelphia Daily News reporter -- "even though [Gomez] was presently at work on a covert assignment with the DEA."
The reporter requested the names, salaries and overtime figures for members of Seth Williams's security detail. An assistant D.A. promptly provided the reporter with that information, the lawsuit charges.
"For the purpose of retribution, the County intentionally risked the life and safety of Detective Gomez," the lawsuit states. In addition, the county assigned Gomez to an unarmed car that Gomez subsequently discovered was "experiencing a product recall in regard to its seatbelts." When Gomez reported the recall to his supervisors, the lawsuit said, the detective was told "to take the vehicle to an unauthorized repair shop on his own time."
"After three weeks of riding in a vehicle with defective seatbelts, Detective Gomez decided to comply with the recall at his own expense," the lawsuit states.
On March 14, 2016, Chief of County Detectives Claude Thomas circulated an email to all personnel who had formerly been assigned to Williams's security detail, telling them "not to respond" to third party inquiries" regarding Seth Williams.
Gomez received a grand jury subpoena, and promptly told Thomas. The detective asked his boss "whether Thomas's directive applied to federal inquiries, including the subpoena." According to the lawsuit, the answer was yes.
On Aug. 1, 2017, just weeks after Seth Williams pleaded guilty, the D.A.'s office notified Gomez that he was being transferred from the DEA task force to the Criminal Complaints Unit. The D.A.'s office also "implemented a policy, practice or custom" to "dissuade Detective Gomez from cooperating with FBI investigators," the lawsuit states. That policy included "testifying against Williams, either before the Grand Jury or at trial," the lawsuit said, as well as "to penalize Detective Gomez for his cooperation and anticipated testimony."
The D.A.'s office "continues to follow this police, practice or custom, as the Office continues to target, marginalize and punish Detective Gomez for cooperating with FBI investigators," the lawsuit states. The result is that the D.A.'s office has "destroyed Detective Gomez's once promising career,"
the detective's lawyers wrote.
The lawsuit also claims that the D.A.'s office, by retaliating against Gomez, violated the state Whistleblower Law, as well as intentionally inflicted emotional distress.
New Jersey's going to have legalized sports betting in a matter of weeks; Pennsylvania, in a matter of months.
With the U.S. Supreme Court clearing the way for sports gambling everywhere, reporters George Anastasia and Dave Schratwieser examine the impact the loss of gambling revenues will have on the mob. First, the government stole the numbers racket, and now this.
Just remember, when you place bets with your bookie, you don't have to pay taxes.
It's the latest edition of Mob Talk SitDown.
|Lead Detective for D.A. Larry Krasner|
Months ago, our new D.A., Progressive Larry Krasner, dispatched his crack detectives to find the family of murder victim Antwine Jackson, an 18 year-old man shot to death back in 2007.
Progressive Larry wanted to tell the Jackson family that as part of his historic reform of the local criminal justice system, he was planning to let their loved one's convicted killer out of jail, despite a life sentence, and without having to go through the bother of a new trial.
According to Ben Waxman, the D.A.'s spokesman, in the search for Jackson's family, the D.A.'s gumshoes spared no effort. They knocked on the doors of at least four different addresses, they sent out emails, they even mailed letters to the Jackson family through the usually reliable U.S. Post Office. But for months, despite all those efforts, the Jackson family somehow managed to elude the D.A.'s dragnet.
|The search for the Jackson family|
Funny how that worked out.
Today, intrepid Philadelphia Inquirer reporter Chris Palmer had a scoop; amazingly, he found Meka Jackson, the murder victim's sister, right outside her Mayfair home. And how did Palmer pull off this impressive piece of detective work?
When reached by email, the modest, mild-mannered reporter accepted Big Trial's congratulations on his scoop, but as far as how he managed to find the victim's sister, Palmer wrote back, "Thanks, but I'll let the story speak for itself."
Meanwhile, according to Palmer's story, Meka Jackson sounded less than convinced that Progressive Larry and his bloodhounds had worked very hard to get in touch with her family.
"If they wanted to hear out side of the story, they could have found us," the victim's sister told Palmer, adding that she felt "disrespected" by the D.A.
Last week, in response to an unopposed motion by the D.A., Common Pleas Court Judge Kathryn Streeter Lewis let Patterson out of jail, after the D.A. claimed the case was "an egregious example of police and prosecutorial misconduct."
Patterson was convicted in 2009 of the broad daylight murder Johnson, outside a corner store on Granite Street, after two eyewitnesses testified against the defendant. The case had been upheld on appeal, and no prosecutorial misconduct had been alleged. But in the motion to dismiss the charges, the D.A.'s office argued that the prosecutors were "completely lacking in integrity" because they supposedly did not disclose evidence about another possible suspect in the murder of Johnson.
In response, a former prosecutor on the case dismissed those charges as "nonsense."
But at the hearing, Anthony Voci, chief of the D.A.'s homicide unit, quoted the Declaration of Independence, and asserted that prosecutors had a duty to ensure that no person in the Commonwealth was improperly denied their rights to life, liberty, and the pursuit of happiness.
Patterson gave a few interviews after leaving court.
"They say you are innocent until proven guilty," Patterson told an Action News TV reporter, but he added that he found out "It is the other way around; you're guilty until proven innocent."
"I ain't the only one in this situation," Patterson told the TV reporter. There's "a whole lot of people in my situation."
An official from the Pennsylvania Innocence Project, the group that had lobbied for years for Patterson's release, told the TV reporter that there's "a lot more work to do," because more than 1,000 innocent people are presently locked up in Pennsylvania.
Rest assured, Larry Krasner is determined to get to all of them.
Patterson was happy to be getting out of jail after being away for 11 years. But what about Antwine Jackson's rights?
As his sister told reporter Palmer, "We've got to deal with a family member being away for the rest of our lives."
Mayor Jim Kenney's impromptu song and dance routine over a recent court victory that upheld the city's status as a sanctuary city is getting panned by conservative critics.
A White House spokesman described the mayor's soft-shoe number as "disgusting."
A Republican candidate for U.S. Senate said it was a "sad video to watch."
A co-host on Fox & Friends wondered what the parents of children slain by illegal aliens would make of it.
The critics were reacting to a four-second Twitter video of Philadelphia Mayor Jim Kenney celebrating a federal court judge's ruling that backed the city in an ongoing legal dispute with the U.S. Justice Department over treatment of illegal aliens.
"We are a sanctuary city yeah," the mayor sang as he danced and high-fived Jane Slusser, his chief of staff, in a video posted on Twitter by a mayoral aide.
On Wednesday, U.S. District Court Judge Michael Baylson ruled that the Trump administration can't withhold some $1.6 million in law enforcement grants to Philadelphia because of the city's status as a sanctuary city.
In his ruling, the judge said that U.S. Attorney General Jeff Sessions's position that illegal aliens are more likely to commit crimes was not borne out by evidence.
"There is no evidence on the record whatsoever that non-citizens in Philadelphia commit any more crimes than the citizens," the judge wrote.
Kenney hailed the decision as a "total and complete victory" that "prevents a White House run by a bully from bullying Philadelphia into changing its policies."
"It is a ruling that should make clear to Attorney General [Jeff] Sessions that federal grant dollars cannot be used for a political shakedown," the mayor said. "It is, most of all, a ruling that reminds everyone of why this city and this county exist -- to give safe haven, and hope, to those who flee tyranny, oppression and poverty in other parts of the world."
The White House had a different reaction to the judge's decision.
"Many people in Philadelphia have been killed, raped or assaulted at the hands of criminal illegal aliens," White House spokesman Hogan Gidley told Fox News. Gidley went on to describe the mayor's singing and dancing act as disgusting.
A spokesman for the Department of Justice said that Judge Baylson's decision was nothing to celebrate, calling the ruling a "victory for criminal aliens in Philadelphia, who can continue to commit crimes in the city knowing that its leadership will protect them from federal immigration officers."
Philadelphia sued the attorney general after he threatened to withhold funds if the city did not cooperate fully with requirements on federal grants that provided Philadelphia last year with $1.6 million for items such as police overtime, training, equipment, as well as new courtroom technology.
In exchange for the funding, the U.S. attorney general wanted the city to provide the feds with a 48-hour notice of any scheduled release of any so-called prisoners of interest; the feds also wanted the right to interview inmates still in custody in Philadelphia.
The city's lawyers argued that the threatened ban was unconstitutional and that Philadelphia would only turn over immigrants to federal officials in cases where the feds had a warrant signed by a judge.
While The Philadelphia Inquirer ignored the mayor's song and dance routine, it was played in an endless loop on Fox News.
"Well, that's really a sad video to watch," U.S. Rep. Lou Barletta of Hazleton, a Republican congressman running for the U.S. Senate, told Fox News. "I don't think the families of the victims in Philadelphia who were victims of illegal aliens" are "dancing as well."
"How do you think angel parents are watching that dance, that celebration this morning," asked Abby Huntsman, a co-host on Fox & Friends, about parents whose children have been murdered by illegals. "Watching that mayor dance, you can imagine how upset that would make them."
By Ralph Cipriano
Lawrence J. Fox, a longtime Philadelphia lawyer who's a visiting lecturer at the Yale Law School, is an expert on teaching legal ethics and professional responsibility.
And Fox has harsh words for the conduct of former Deputy Attorney General Frank Fina, the lead prosecutor in the Jerry Sandusky case, as well as for Cynthia Baldwin, the former Penn State counsel who represented three top Penn State officials before the grand jury investigating Sandusky. That was before Baldwin flipped, at the behest of Fina, to become a prosecution witness, and testify against her former clients, an act of betrayal that horrified Fox.
"When lawyers feign representation, but in fact abandon their clients, and worse yet, become instrumentalities of the state, aiding the prosecution of their clients, the entire system of justice is systematically destroyed," Fox wrote in a 2013 filing recently unsealed in Dauphin County Common Pleas Court.
Tomorrow at 10 a.m. in Philadelphia, Fox will testify as an expert witness on behalf of the state Supreme Court's Disciplinary Board, to make the case that former prosecutor Fina is guilty of professional misconduct. But for those who can't wait for the hearing, Fox's scathing opinions of the alleged legal sins of Fina and Baldwin are laid out in the recently unsealed filing that has been completely ignored by reporters from the mainstream media; the same reporters who sought to have these documents unsealed. So it goes in the Penn State case, where media malpractice has been the norm.
"It is the Commonwealth whose lawyers were fully aware of the conflicts under which Ms. Baldwin was laboring at the time of the grand jury proceeding," Fox wrote, clearly referring to Fina, who questioned Baldwin in the grand jury after she flipped.
Fina was aware that Baldwin had a conflict of interest, Fox wrote, namely her decision to betray her former clients. Yet, Fina and his fellow prosecutors "stood silent," Fox wrote, and "took full advantage of the conflicts" to gather information to make a conspiracy and obstruction of justice case against those clients. But as part of his mission to seek the scalps of the three Penn State administrators, Fina had to mislead the grand jury judge, Fox wrote.
The prosecutors "never informed the court of the nature and extent of the conflicts" of interest posed by Baldwin's dual role in the case, Fox wrote. So that the court could fulfill its duty of assuring that the "rights of Messrs. [former Penn State vice president Gary] Schultz and [former Penn State athletic director Tim] Curley to effective representation were not systematically violated in the extreme."
In the unsealed filing, Fox ripped the Commonwealth's defense of Fina's actions.
"The Commonwealth actually asserts that because Messrs. Schultz and Curley were aware that Ms. Baldwin was general counsel for Penn State, they should have understood that they were merely second-class clients, and, as a result, are entitled to no attorney-client privilege whatsoever," Fox wrote.
But the Rules of Professional Conduct do not mention "a watered-down second-class version of clienthood," Fox wrote; the rules of Professional Conduct only define "one form of clienthood" that's subject to the attorney-client privilege.
Before she flipped, Fox wrote, Baldwin announced to "Schultz and Curley, the court, the grand jury, as well as the Commonwealth's lawyers" that she represented Schultz and Curley. But as their lawyer, Fox wrote, Baldwin was "required, in fact, to represent both of them to the full extent required by her fiduciary duties . . . the Pennsylvania Rules of Professional Conduct, the Pennsylvania statutory provisions covering the right to counsel before a grand jury" as well as the U.S. Constitution.
But in reality, Fox wrote, while Baldwin was representing her clients, "her fingers were crossed behind her back, and she never fully intended to fulfill that obligation, let alone warn them they would not receive the benefit of attorney-client privilege because of their second-class status."
"The law governing the attorney-client privilege in a joint representation is clear," Fox wrote. "There can be no waiver of the privilege unless each client has given his or her informed consent . . . to waive the privilege."
But the record of the case "demonstrates that there never was so much as a telephone call" to let Schultz and Curley know that the Commonwealth was seeking a waiver of the attorney-client privilege, and that Baldwin was planning to testify against her clients, Fox wrote.
By not telling her former clients she was about to stab them in the back, Fox wrote, Baldwin "turns the law of privilege literally upside-down, rendering it a false protection and leaving the clients helpless before the power of the Commonwealth."
That certainly was OK with Frank Fina. As for Baldwin, Fox wrote, her "sins here are both manifold and manifest. Turning against one's client is the greatest betrayal a lawyer can commit."
"But that is what Ms. Baldwin did here, stripping the clients of any opportunity to object to her misdeeds," Fox wrote. "Either she was subpoenaed to the grand jury or she voluntarily agreed to appear. Either way, she ran right through the red light by, in fact, testifying before the grand jury without notice to her former clients."
"No lawyer is permitted to disclose confidential information without the informed consent of the client," Fox wrote. "As a result of Ms. Baldwin's misconduct, Messrs. Schultz and Curley went six months without being aware of Ms. Baldwin's betrayal, and only learned of her shocking abandonment of her former clients when the new indictment was issued. Ms. Baldwin's conduct in this regard cries out for relief."
Fox labeled Baldwin's conduct as a "blatant betrayal . . . unprecedented in the annals of lawyer representation of clients."
And according to the disciplinary board's petition against Fina, it was Fina who set up that blatant betrayal by hoodwinking Judge Barry Feudale, then presiding over the grand jury investigating Sandusky.
On Oct. 22, 2012, Fina and Baldwin appeared before the judge in a conference to discuss Schultz and Curley's claim of attorney-client privilege in light of Baldwin's imminent appearance before the grand jury where the Commonwealth planned to have Baldwin testify against her former clients.
The petition notes that lawyers for Schultz, Curley, as well as former Penn State President Graham Spanier, who was also formerly represented by Baldwin, were not invited to the conference. At the conference, the petition says, Fina told the judge regarding the attorney-client privilege that he intended to "put those matters on hold" until the judge made a decision regarding the privilege, and "we can address that later on."
Penn State's counsel then argued that the judge should make a ruling on the attorney-client privilege first, before Baldwin testified. But Fina told the judge, "We need not address the privilege issue," because "we are not going to ask questions about" the grand jury testimony of Schultz and Curley, "and any preparation for, or follow-up they had" with Baldwin, Fox wrote.
Fina asked the judge to keep Baldwin's testimony secret so "We can address this privilege matter at a later date." That prompted the judge to tell Fina to proceed under the assumption that "you're not going to get into any inquiry as to [Baldwin's] representation" of her former clients.
But Fina double-crossed the judge, as well as broke the rules of professional conduct. And that's not only Fox's opinion, but it was also the ruling of the state's Superior Court, when they threw out eight charges Fina filed against Spanier, Schultz and Curley.
On Oct. 26, 2012, Fina questioned Baldwin in front of the grand jury, and "did elicit" what the disciplinary board described as "extensive . . . attorney-client privileged communications between Baldwin and Curley, Schultz, and Spanier" as well as "confidential information" pertaining to the three former clients.
Fina's questioning of Baldwin was "calculated," the disciplinary board wrote, to solicit damaging information that would attack the credibility of Baldwin's three former clients. In the petition, the disciplinary board proceeded to list 73 examples from the grand jury transcript where Fina elicited confidential testimony from Baldwin that violated the attorney-client privilege, according to the petition filed by Paul J. Killion, chief disciplinary counsel, and Amelia C. Kittredge, disciplinary counsel.
That's 73 examples folks, of Fina bending the rules, and the judge going along with it. Without a defense lawyer in the secret chambers of the grand jury to say a word of protest on behalf of Baldwin's three former clients.
The actions of Fina and Baldwin in the grand jury were so egregious it prompted the state Superior Court to throw out a total of eight charges of perjury, obstruction of justice and conspiracy against Schultz, Curley and Spanier.
Baldwin has already been called to task for her alleged ethical lapses. At a two-hour disciplinary hearing on May 23 in Pittsburgh, Baldwin, a former state Supreme Court justice, contended she wasn't guilty of any misconduct. She testified that after she received grand jury subpoenas for Curley and Schultz, she allegedly told them, as well as Spanier, that she couldn't be their personal lawyer because she was representing Penn State. Baldwin also asserted that she told the Penn State officials their communication with her wouldn't remain confidential, and that they were free to get outside lawyers to represent them.
"Don't be nervous. Just tell the truth," Baldwin testified that she advised Curley.
Baldwin testified that both Curley and Schultz described a shower incident allegedly witnessed by whistleblower Mike McQueary back in 2001 involving Sandusky and a naked boy as "horseplay." Baldwin also contended that she asked the Penn State officials if they knew of any documents describing that incident that had been requested by a subpoena from the attorney general's office, and that her clients replied that they didn't know about any such documents.
Baldwin testified she felt "duped" when months later, a file kept by Schultz documenting the shower incident involving Sandusky was turned over to investigators.
In court records, Baldwin's former clients, however, tell a different story. They contend that Baldwin did not inform them of the risks of appearing before the grand jury, and misled them about the grand jury's mission. Schultz also stated that he told Baldwin about the file he kept on Sandusky.
Baldwin's former clients contend in affidavits that because of her inept representation, and outright deception about the grand jury's true mission, Baldwin transformed her clients into sitting ducks for Frank Fina.
"Ms. Baldwin informed me that the grand jury investigation focused on Jerry Sandusky, not on me or PSU, and that I was being called purely as a witness," Schultz wrote in an affidavit recently unsealed in Dauphin County. "Ms. Baldwin told me that neither I nor PSU were under investigation," Schultz wrote. "She told me that I could have outside counsel, if I wished, but at that point, seeing all the stories [of the Penn State officials] are consistent, she could represent me, Tim Curley and Joe Paterno as well."
Schultz said he told Baldwin he might have a file on Sandusky still in his office, and that it "might help refresh my memory" to review its contents. But Schultz said that Baldwin told him not to "look for or review any materials."
"Ms. Baldwin also told me that PSU and I were not targets of the investigation and that I would be treated as a witness," Schultz wrote. "There never was any discussion of the Fifth Amendment privilege or the risk of self-incrimination."
"I believed that Ms. Baldwin was representing me in connection with the grand jury proceedings and that she was looking out for my interests," Schulz wrote. "Based on her representations, I did not believe I needed a separate lawyer."
In his affidavit of Oct. 25, 2012, Schultz wrote that Baldwin only told him he needed a separate lawyer "approximately one week before the charges were filed against me."
Former Penn State University President Graham Spanier made similar, disturbing claims about the actions of Baldwin.
In a Jan. 16, 2013 affidavit, Spanier wrote that prior to his grand jury appearance, Baldwin "did not reveal that I had been subpoenaed, and I believed that I was going voluntarily. She did not inform me that Penn State and I were targets of the investigation. As far as I knew, the investigation focused solely on Sandusky."
When Spanier appeared before the grand jury in 2011, "I believed that Ms. Baldwin was representing me during and in connection with the grand jury proceedings and that she was acting in my best interests," Spanier wrote. " Although Ms. Baldwin mentioned that I was entitled to a separate attorney, she did not encourage me to retain one, or explain why I might want one. Based on her representations, I did not believe I needed a separate lawyer."
"On the day of my grand jury testimony, Ms. Baldwin accompanied my swearing in" before the judge, and "stated that she was representing me in connection with my testimony," Spanier wrote. "And I had no reason to think otherwise."
"Ms. Baldwin sat with me in the grand jury room," Spanier wrote. "I was asked by the OAG attorney whether I was represented by counsel. I responded that I was, and identified Ms. Baldwin. She did not say anything."
"Ms. Baldwin first told me that I should retain a separate attorney on Nov. 8, 2011, after Sandusky, Schultz and Curley had been indicted," Spanier wrote. "At no point did I waive my right to confidentiality in my communications with Mrs. Baldwin or otherwise waive attorney-client privilege."
Tomorrow, it will be Fina's turn to answer those charges of misconduct.
In a response to the disciplinary board's accusations, Fina's lawyers, Dennis C. McAndrews and Joseph E. McGettigan 3d, contend that Fina "has not violated any rule of conduct" and they request that the board dismiss the charges against him.
In attempting to extricate Fina from his ethical dilemma and blatant misconduct in flipping the pliable Baldwin, Fina's lawyers resorted to wrapping themselves up in the flag of righteousness in the Sandusky case. They did that by pointing out the jury verdict, the pretrial demonization of Sandusky by a hysterical media, and the actions of pliable judges in the case who kept giving the prosecutors nothing but green lights.
It's like the scene in Animal House, where Otter is confronted before a kangaroo student court with charges that he and his fellow frat brothers at Delta house "broke a few rules or took a few liberties with our female party guests."
"We did," Otter says, winking at Dean Wormer, an admission that Fina's lawyers won't be making tomorrow. Otter then asks the dean and the court if it's fair for them to hold "the whole fraternity system" accountable for the actions of "a few, sick, twisted individuals?"
And if they're going to indict the whole fraternity system, Otter asks, "isn't this an indictment of our educational systems in general," as well as "an indictment of our entire American society?"
"Well," an indignant Otter sniffs, "You can do whatever you want to us, but I for one am not going to stand here and listen to you badmouth the United States of America!" Then he and the Deltas march out of the courtroom humming the Star-Spangled Banner.
In their filing, Fina's lawyers describe their client as "instrumental in convicting the most notorious serial child molester in American history." Fina, according to his lawyers, was also "developing evidence that administrators at [Penn State] . . . failed to act in accordance with their legal, professional and/or ethical responsibilities in taking steps to prevent future harm to the children of this Commonwealth by that predator."
The lawyers assert that Fina did nothing improper before the grand jury. To do that, they quote the Louis Freeh report, which has some serious credibility problems, and Judge Feudale, the grand jury judge subsequently removed by the state Supreme Court amid allegations of misconduct and an alleged loss of objectivity.
In remarks quoted by Fina's lawyers, the discredited judge concluded that nothing went wrong in his courtroom after Fina plainly lied to him about what he was planning to do with Baldwin. And that after "a careful review of the testimony of attorney Baldwin before the grand jury," Judge Feudale concluded that "Baldwin's testimony did not [in this court's review] violate any attorney-client or work product privilege."
Never mind those 73 damaging quotes contained in the court transcript.
Fina's defense, as laid out by his lawyers, seems pretty lame. According to our system of justice, every accused defendant, even a serial killer, deserves a lawyer in their corner who would at least tell them if they're the target of a grand jury investigation. Cynthia Baldwin flunked that basic test. And then she went out and sold her clients down the river, behind closed doors in the grand jury, and neglected to tell them about it.
And speaking of Frank Fina, why did he have to lie and cheat and break the rules during that secret grand jury proceeding, where he already had the judge on his side, and he held all the cards?
If his cause was so righteous, why did Frank Fina have to cheat to win?
By Ralph Cipriano
|The Fox Hunting The Fina|
Frank Fina did a slow burn today as a lawyer for the state Supreme Court's disciplinary board and an ethics expert wearing a bow tie took turns attacking Fina as an unethical, and overzealous prosecutor who trampled on the constitutional rights of his targets.
"This is a straight-forward case," Amelia C. Kittredge, counsel to the disciplinary board, told a panel of three lawyers who will decide whether Fina, the lead prosecutor in the Jerry Sandusky sex abuse case, should be disciplined or disbarred for misconduct during that secret grand jury investigation.
Frank Fina, Kittredge said, "deliberately and recklessly" violated the attorney-client privilege. It happened in 2012, when Fina questioned former Penn State counsel Cynthia Baldwin before a grand jury about confidential information involving three of her former clients who were once top officials at Penn State.
A prosecutor is not only supposed to be an advocate, Kittredge said, but he's also supposed to be a "minister of justice." But Frank Fina, she said, was an unethical lawyer who broke the most "sacred privilege" in the legal world, namely the attorney-client privilege.
In her opening statement outlining the charges against Fina, Kittredge took the disciplinary board through the time line in the case. She talked about how the year after Baldwin became Penn State's general counsel, in 2011, she got hit with three grand jury subpoenas from the state attorney general's office in the Sandusky investigation, targeting retired Penn State vice president Gary Schultz, athletic director Tim Curley, and Coach Joe Paterno.
In January 2011, Schultz and Curley testified before the grand jury on the same day, and both were represented by Baldwin, Kittredge said. Three months later, Baldwin received a subpoena for Penn State President Graham Spanier.
There were "no protests, no qualifications," from Baldwin about any conflicts representing the three Penn State officials, Kittredge said. In November 2011, a grand jury indicted Curley and Schultz. In June 2012, Baldwin left Penn State and then she got served with a subpoena, turning her into a possible target of the investigation.
To explain away her ethical conflicts, Kittredge said, Baldwin claimed she had acted before the grand jury as "an agent of the university," and that she did not represent her former clients personally, "whatever that means," Kittredge said dispargingly.
When Frank Fina appeared before the grand jury on Oct. 22, 2012, he told Judge Barry Feudale that he wanted to call Baldwin as a witness, although he claimed he wouldn't get into any areas of questioning that would violate the attorney-client privilege. During that hearing before the judge, Kittredge said, lawyers for Curley and Schultz, Baldwin's former clients, "astoundingly" were "not present or notified."
According to Rule 3.10 of the Pennsylvania code of conduct for lawyers, Kittredge said, there should have been a hearing before a judge before Baldwin was allowed to testify. And that instead of Fina making the call, it was a judge who should have decided whether Baldwin's testimony would violate the attorney-client privilege.
Rule 3.10 of the Rules of Professional Conduct states: "A public prosecutor or other government lawyer shall not, without prior judicial approval, subpoena an attorney to appear before a grand jury or other tribunal investigating criminal activity in circumstances where the prosecutor or other government lawyer seeks to compel the attorney/witness to provide evidence concerning a person who is or has been represented by the attorney/witness."
Instead of getting the required "prior judicial approval," Kittredge said, Fina just went ahead and did it, while misrepresenting his intentions on what he planned to question Baldwin about. Fina had told the judge that he wasn't going to mess with the attorney-client privilege, to gain any confidential information about the communication between Baldwin and her clients. But what Fina really wanted to do, Kittredge said, was to turn Baldwin into "a witness against her three clients." And that's just what he did.
"Would you ever testify in such a manner against a client," Kittridge asked the panel of lawyers on the disciplinary board. At the grand jury, Kittredge said, Baldwin used that forum to go into a "litany" of complaints against her former clients, while divulging many things that the trio of Penn State administrators had told her in confidence. The topics discussed included what the Penn State officials knew about a couple of shower incidents in 1998 and 2001 involving Jerry Sandusky lathering up with naked boys.
Baldwin also testified about discussions she had with Spanier before his interview with the attorney general's office, and what Spanier knew about the grand jury investigation of Sandusky.
"He lied to me," Kittredge quoted Baldwin as testifying before the grand jury about Spanier. "There is no doubt he lied to me," Baldwin said, adding that Spanier had prior knowledge of accusations against Sandusky, but, Baldwin said, "He tried to hide it from me."
In evoking testimony that breached the attorney-client privilege, Kittredge said, Fina "hoodwinked Judge Feudale" while Baldwin abandoned and betrayed her former clients.
Fina's defense, that Baldwin didn't really represent her former clients, only the university, amounted to "smoke," Kittredge said. Lame attempts "to shore up the defense," and cover up for Fina's "reckless and deceptive" conduct.
At the defense table, Fina, his head bowed, confined his comments to whispers shared with his lawyers. Meanwhile, Baldwin, who is a witness in the case on behalf of Fina, was asked to leave the courtroom before today's proceedings started.
In his opening statement, Dennis C. McAndrews, on behalf of Fina, asserted that the disciplinary board's case amounted to a lot of opinions and a "cherry-picking" of the facts, in an attempt to destroy Fina's "professional life."
Two judges, McAndrews said, on seven different occasions "approved his [Fina's] conduct." And Judge Feudale, "by permitting" the questioning of Baldwin to "go forward," basically amounted to holding a hearing on the matter, and granting his consent.
Judge Feudale, McAndrews said, did not sit there like a "potted plant" when Fina was running the grand jury investigation. The judge heard Fina's argument, and decided to go ahead with the questioning of Baldwin, McAndrews insisted.
"That's the hearing," McAndrews said about the short colloquy between the prosecutor and the judge. McAndrews added that it was "outrageous" for the disciplinary board counsel to contend that Fina had forced Baldwin to testify against her will.
"She wanted to testify," McAndrews said of Baldwin. "Penn State wanted her to testify."
Baldwin felt compelled to disclose that her former clients "had participated in an ongoing criminal conspiracy," McAndrews said, ignoring the fact that no charges of conspiracy have ever been proven in any courtroom against any of those Penn State administrators.
Regardless, Baldwin, McAndrews said, felt she had to "stand up" and call out her former clients, during the secret grand jury proceedings.
"They were lying to her over and over again," McAndrews asserted. While those clients were actually "participating in a cover up" of Sandusky's conduct, McAndrews said, again falling back on allegations never proven in court.
But as far as McAndrews was concerned, Fina was the victim, the disciplinary board was the aggressor, and that the charges against Fina were "defamatory and scandalous."
After opening statements in the case, the first witness Kittredge called was Lawrence Fox, a longtime Philadelphia lawyer who recently joined a New York City law firm, because it was closer to New Haven, where Fox lectures at the Yale University Law School.
Fox, wearing his trademark bowtie, told the disciplinary board he had written nine books on ethics and he had taught legal ethics at Yale, Harvard, and the University of Pennsylvania. Fox testified that his usual hourly fee as an expert was $875, but for the disciplinary board, he had discounted that rate to $450.
During his testimony, Fox teed off on both Baldwin and Fina. Baldwin's betrayal of her clients, Fox said, "left three individuals absurdly unrepresented."
"This is an extraordinary case," Fox said. "She [Baldwin] misled [her clients] into thinking they were represented" by her. And "Mr. Fina stood by and let this happen."
What should have happened, Fox said, was that lawyers for Baldwin's three clients should have had a forum to present their case to Judge Feudale on why Baldwin shouldn't be allowed to testify against them, before Fina was ever allowed to ask the first question of Baldwin.
"One of the saddest situations I've ever seen," Fox said about the allegations of misconduct against Fina and Baldwin. "Those people," Fox said, referring to Baldwin's three former clients, "were in there [the grand jury] without a lawyer. "
Every client, Fox said, is "entitled to one true champion" as their lawyer.
In going forward with the questioning of Baldwin, Fina claimed he was willing to take a risk, but it wasn't his risk to take, Fox said. "He [Fina] then proceeded to invade the [attorney-client] privilege on page after page after page" of the grand jury transcript of Baldwin's testimony, Fox testified.
Fina's lawyers again contended that Judge Feudale fairly considered the issue before giving Fina the go-ahead to question Baldwin. But Fox went back to Rule 3.10 of the rules of professional conduct, which, according to Fox's interpretation of due process, meant what was required was a full hearing before Judge Feudale, which would have included arguments from lawyers representing Baldwin's former clients.
"The rule gets violated by not having a hearing," Fox said. And in the grand jury, Baldwin compounded the legal travesty by proceededing to disparage her clients, Fox said.
"Ms. Baldwin might as well have been giving Mr. Fina's closing argument," Fox said.
On cross-examination, McAndrews brought up some recently unsealed court transcripts, not yet seen by the disciplinary board, where Baldwin, Spanier, Curley and Schultz testified, and the late Dauphin County Judge Tod Hoover supposedly decided that Baldwin had acted ethically, as had Fina.
Fox, after a barrage of questioning, admitted he hadn't yet read the recently unsealed transcripts, but he made it clear he wasn't buying that argument.
Fox described Baldwin, a former state Supreme Court justice, as a "turncoat lawyer," and then he talked about a judge who was presiding over a "star chamber."
When McAndrews signaled he was ready to end his questioning of Fox, the witness in the bowtie cracked, "Now, don't end with a whimper."
That led to a few more testy exchanges between Fox and Fina's lawyers.
When McAndrews again brought up Judge Feudale's approval of Fina's actions, Fox shot back, "He was absolutely wrong."
Today's hearing had a nasty edge. To the layman, in a room full of lawyers, the proposition that every client deserved a lawyer who would represent them, and not sell them out behind the closed doors of a grand jury proceeding, sure sounded like a reasonable, constitutionally-sound principle, as advanced by Fox, the Yale lecturer with the yellow bow tie.
But Fina's lawyers treated Fox with open contempt, and were often seen laughing and smirking at his answers. During cross-examination, McAndrews frequently cut off Fox, as well as loudly and arrogantly admonished the ethics expert for interrupting the defense lawyer. During a break, one of Fina's lawyers was overheard describing Fox to a reporter as "a loser," and making jokes to a defense witness in the case about the effectiveness of Fox's testimony.
Fina's lawyers were also openly contemptuous of the disciplinary board's lawyer, to the point where they challenged many court transcripts she sought to enter into the record on procedural grounds, such as the documents hadn't allegedly been authenticated, or allegedly were either hearsay or irrelevant.
Fina's lawyers contended that Baldwin's former clients, Penn State president Graham Spanier, as well as Tim Curley and Gary Schultz, were sophisticated individuals who should have known that Baldwin was not really representing them before the grand jury, but that her true client was the university.
But to the layman, Fox made a lot of sense when he argued that many so-called "masters of the universe," such as Spanier the high-powered university president, were exactly the type of clients who most needed the counsel of their lawyers, as they were typically ignorant of how the legal system works. And they also weren't fully aware of what kind of jeopardy they were exposing themselves to.
It was Baldwin's job, Fox said, to take charge of her clients' defense in the attorney general's investigation, and explain to her clients how the system works, what their rights were, and what legal risks they were taking.
But it was an argument that was met with smirks, laughs and derision by Fina's lawyers. Like their client, Fina's lawyers seemed to share the opinion that during the former prosecutor's momentous crusade against the official enablers of the most notorious pedophile in the history of America, that there was no time to waste debating whether the constitutional rights of Fina's targets were being trampled on.
Because Frank Fina the all-knowing and all-seeing prosecutor, had already figured out who the bad guys were. And he had also decided that he was above the most basic rules of fair play.
Fina's hearing is scheduled to continue on July 27 and July 31. Waiting in the courtroom to testify on behalf of Fina were Baldwin and Ron Castille, the retired chief justice of the state Supreme Court, last seen laughing and joking with Fina's lawyers.
By Ralph Cipriano
The state Superior Court, in a split, 2-1 decision, yesterday denied an appeal by Graham Spanier, the former president of Penn State University, who was seeking to overturn his conviction last year on a single count of endangering the welfare of a child.
In denying Spanier's appeal, the state Superior Court repeatedly cited the Commonwealth v. Lynn a total of 34 times in 29 pages, as in the case against Msgr. William J. Lynn, the former secretary for clergy in the Archdiocese of Philadelphia.
In the Pennsylvania courts, the Commonwealth v. Lynn now stands as legal precedent. In real life, however, the case is a scandalous embarrassment to law enforcement, as it involves a fake victim, "Billy Doe," AKA Danny Gallagher, dubbed the "lying, scheming altar boy" in a cover story by Newsweek.
Gallagher's been exposed in court as a lying fraud according to a 12-page affidavit filed by Joe Walsh, the D.A.'s own lead detective who investigated the case. According to the detective's affidavit, he repeatedly warned the lead prosecutor, Assistant District Attorney Mariana Sorensen, that his investigation revealed that Gallagher's multiple claims of abuse weren't credible when he falsely claimed to have been raped by two priests and a schoolteacher. Indeed, the detective said that in private, Gallagher even confessed to the detective that he made up many of his wildest claims of abuse. But according to the detective, Assistant District Attorney Sorensen repeatedly ignored him, saying, "You're killing my case."
It also should matter that the grandstanding D.A. who brought the fraudulent case against Msgr. Lynn, Rufus Seth Williams, has since been exposed in federal court as a corrupt politician who took bribes, did favors for criminals, committed extortion, and sold his office in exchange for goods such as a chocolate-colored $3,000 custom couch from Raymour & Flanigan, free vacations in Punta Cana, and a beat-up 1997 XK8 Jaguar convertible that was usually in the shop.
Philadelphia's former top law enforcement official, who used to spend his time smoking cigars at the Union League, now wears a jump suit and sits in protective custody in a federal prison in Oklahoma, doing four years for a litany of 29 crimes that he pleaded guilty to, including stealing from his own mother.
In the real world, those facts might matter. But in the make believe world of Pennsylvania's court system, propped up by a corrupt media, the case of the Commonwealth v. Lynn lives on as a milestone in the crusade against sex abuse. Yesterday, it served as the bedrock of the state Superior Court's opinion that denied Spanier's appeal.
In their decision, the state Superior Court ruled that Spanier, like Lynn, owed a "duty of care," as he was supervising the welfare of a child, and that Spanier failed in his duty to protect children from convicted child rapist Jerry Sandusky.
That's what the court said yesterday. But the truth is that just like in the case of Lynn, the state's original child endangerment law never really applied to supervisors such as Spanier.
Who said so? Why, this same state Superior Court which previously overturned Lynn's conviction in 2013. In that decision, the state Superior Court ruled that the state's original child endangerment law did not apply to supervisors such as Lynn, but then the grandstanding state Supreme Court came along, overturned the Superior Court's reversal of the Lynn conviction in 2015, and made some bad case law that came back to haunt Spanier.
"The facts before us establish that [Spanier], a university president, supervised his school's response to repeated allegations of on-campus abuse of a minor by a high-status former employee with access to campus facilities," the Superior Court opinion said yesterday about Jerry Sandusky. "He [Spanier] was clearly supervising a child's welfare pursuant to Lynn."
The facts, however, tell another story. The state's original 1972 child endangerment law said: "A parent, guardian or other person supervising the welfare of a child under 18 years of age commits a misdemeanor of the second degree if he knowingly endangers the welfare of a child by violating a duty of care, protection or support."
For nearly 40 years in Pennsylvania, that law applied only to adults who were in direct contact with a child, such as a parent, guardian or teacher who "knowingly endangers the welfare of a child."
In 2005, then Philadelphia District Attorney Lynne Abraham and a grand jury concluded that the original child endangerment law did not apply to Msgr. Lynn, Cardinal Anthony J. Bevilacqua, or any other high-ranking official of the Archdiocese of Philadelphia who had a supervisory role. The grand jury was investigating four decades of sex abuse and church cover ups in the archdiocese. It issued a report that said although it wanted to, it could not legally indict Lynn or Bevilacqua for the crime of endangering the welfare of a child because the law didn't apply to supervisors.
D.A. Abraham then led a state-wide crusade to change the law, and the state legislature complied, amending the law in 2007 to include supervisors. But Rufus Seth Williams came along in 2011 and decided, without any explanation, that in order to grab some headlines, the original child endangerment law did apply to supervisors.
After the state Superior Court overturned Lynn's conviction, the state Supreme Court intervened on Rufus's behalf, upholding his twisted interpretation of the law. How did the Supremes do it? By going back in time to 1972 and clairvoyantly reinterpreting the original intentions of the state legislature when they passed the original child endangerment law. To say they originally intended to include supervisors, or anybody who was in a role supervising the welfare of children.
If so, then why did the state legislature have to amend the law in 2007 to specifically include supervisors? If so, why didn't Lynne Abraham and the grand jury indict Cardinal Bevilacqua for endangering the welfare of a child, in addition to Msgr. Lynn?
But the bad case law lives on. In the Lynn case, the state Superior Court yesterday wrote, "the defendant was a 'high-ranking official in the Archdiocese of Philadelphia" who was 'specifically responsible for protecting children from sexually abusive priests.' Our Supreme Court concluded that sufficient evidence supported Lynn's conviction even though he did not directly supervise any children."
"Here, as in Lynn, [Spanier] occupied a position of high authority with respect to the site of the alleged abuse," the Superior Court said yesterday. "Here, as in Lynn, [Spanier] oversaw his institution's response . . . [Spanier], like the defendant in Lynn, had sufficient information and authority to take action. Indeed, he was uniquely positioned to do so."
The 2-1 opinion upholding Spanier's conviction was written by Judge Victor P. Stabile, and joined by Judge Carolyn H. Nichols. In a dissenting opinion, Judge Lillian Harris Ransom said that the Commonwealth violated Spanier's rights by failing to inform him of its intent to rely on an exception to the statute of limitations at a reasonable time before trial.
There's a two-year statute of limitations on the crime of endangering the welfare of a child. The crime that Spanier was accused of ignoring, the alleged 2001 rape in the showers of a 10-year boy by Jerry Sandusky, as allegedly witnessed by Mike McQueary, was long past the statue when the Commonwealth in 2012 charged Spanier.
To get around the statute of limitations, the Commonwealth claimed that Spanier and other Penn State administrators were involved in a continuing course of conduct, namely a conspiracy to cover up the shower incident, and that's why they could charge Spanier with endangering the welfare of a child.
But a jury in the Spanier case found no conspiracy and no continuing course of conduct. In her dissenting opinion, Judge Ransom found that Spaneir should have reported the 2001 shower incident to the Department of Welfare and the police, which he didn't do. "Accordingly, he [Spanier] violated a duty of care owed to the child victim in the 2001 incident," Judge Ransom wrote. But she also found the state at fault regarding the statute of limitations.
Here, in the Penn State case, we come to another phantom victim of sexual abuse.
But the alleged victim never came forward, and, according to the prosecutors, was known "only to God." McQueary wrote that he never saw any such anal rape. And all the people that the grand jury presentment claimed McQueary had told his story to, about the anal rape, subsequently came forward to deny that in court.
Even McQueary disagreed with the grand jury report, writing in an email to the lead prosecutor and investigator that they had "slightly twisted" his words. "I cannot say 1000 percent sure that it was sodomy. I did not see insertion," McQueary wrote. "It was a sexual act and or way over the line in my opinion whatever it was."
But in Pennsylvania, a phantom victim of sex abuse and a phony claim of anal rape is all an unscrupulous prosecutor needs to grab headlines and win convictions.
We're talking about Frank Fina, the former lead prosecutor on the Sandusky case, who has been brought up on misconduct charges before the disciplinary board of the state Supreme Court. Fina's case continues next month.
In the case of unscrupulous prosecutors such as Fina, Rufus Seth Williams and Mariana Sorensen, it also helps if the media plays along, and never looks below the surface.
In her dissenting opinion, Judge Ransom writes that the Commonwealth "employs a rather tortured argument" to suggest that Spanier's failure to report Sandusky was a "continuing course of conduct," and that his failure to act "created an ongoing danger to any child brought on the campus or encountered by Sandusky."
"The Commonwealth has introduced no additional evidence to show that [Spanier] was aware of any incidents involving Sandusky after 2001, nor his active involvement in any further actions involving Sandusky," Judge Ransom wrote. "Accordingly, the course of conduct exception is incapable as a mater of law, where [Spanier] endangered the welfare of a child by failing to report suspected child abuse, and where the charges are not brought within the statue of limitations."
"The Commonwealth supplies no additional authority to support the contention that we should expand the [endangering the welfare of a child] statute of limitations in such a manner, and I can find none," Judge Ransom wrote. "Accordingly, based on the above, I cannot agree" that the statue of limitations should have extended in Spanier's case, and "I would reverse [Spanier's] conviction and vacate his judgment of sentence."
Spanier was given a sentence of 4 to 12 months, with at least two months to be served in jail. His sentence has been suspended pending his appeal. Spanier's lawyers are expected to appeal the state Superior Court's decision to the state Supreme court.
For more on the topic of the Superior Court's "tortured reasoning:
Ray Blehar: http://notpsu.blogspot.com/2018/06/court-used-tortured-reasoning-to-uphold.html
By Ralph Cipriano
The state Superior Court today cleared the way for a retrial of Msgr. William J. Lynn by rejecting an appeal to toss the case against him because of intentional prosecutorial misconduct and double jeopardy.
The monsignor, however, did score one legal victory. In a separate decision, the Superior Court ruled in Lynn's favor to limit the number of supplemental cases of sex abuse that can be introduced as evidence at a retrial, to show a pattern spanning decades of covering up sex abuse in the Archdiocese of Philadelphia.
The Superior Court's two opinions issued today mean that both sides can proceed with the sequel in their long-running grudge match, once again starring Detective Joe Walsh. Only this time around, Walsh, the D.A.'s former ace lead detective on the case, will be testifying on behalf of the defendant, about prosecutorial misconduct in the D.A.'s office.
Besides Walsh, there's one big difference between the first and second trials of Msgr. Lynn. Today, a three-judge panel for the state Superior Court said they looked for but could not find "a single instance" of intentional prosecutorial misconduct. But in the retrial, Lynn's lawyers are holding a trump card that they may soon flash to trial Judge Gwendolyn Bright -- newly discovered evidence of intentional prosecutorial misconduct that's a slam-dunk. It's seven pages of prosecutor's notes that the D.A.'s office repeatedly told three different judges over the years didn't exist, only to have those notes mysteriously reappear eight years later, on the eve of a retrial. If the state Superior Court was looking for conclusive evidence of intentional prosecutorial misconduct, Lynn's lawyers have got the goods.
At his original trial in 2012, Lynn, the archdiocese's secretary for clergy from 1992 to 2004, was convicted on one count of endangering the welfare of a child, and sentenced to 3 to 6 years in jail.
He served 33 out of 36 months of his minimum sentence, plus 18 months of house arrest. His conviction, however, was overturned twice on appeal by the same Superior Court that ruled today for a third time on the same case. The first time the state Superior Court overturned Lynn's conviction, in 2013, the state Supreme Court came back in 2015 to overrule the Superior Court, and reinstate Lynn's conviction. The Superior Court in 2016 then decided to overturn the monsignor's conviction for a second time.
Detective Walsh came forward last year to testify that he had repeatedly questioned the star witness against Lynn, former altar boy Danny Gallagher, about numerous factual discrepancies in his various claims of abuse. And that during a pre-trial prep session, Walsh testified, Gallagher either didn't respond to his questions, claimed he was high on drugs, or entertained the skeptical detective with new stories of abuse.
Gallagher had falsely claimed that he was raped by two priests and a Catholic schoolteacher, telling many different versions of the imaginary crime spree. Some of those tales are transparently ridiculous; others are contradicted by other witnesses in the case. They include teachers, priests and nuns at St. Jerome's Church in Northeast Philly, where Gallagher claimed to have been repeatedly victimized in an unprecedented fashion [three rapists conspiring with each other to pass around the hapless altar boy like a piñata] as well as members of Gallagher's own family, who also contradicted Danny Boy's tall tales.
None of the results of Walsh's grilling of Gallagher were reported to the defense. That prompted Judge Bright to rule it was prosecutorial conduct serious enough to warrant a new trial for Lynn, if the state Superior Court, in a previous 2016 ruling, had not already granted the monsignor a new trial. But, Judge Bright ruled, the D.A.'s machinations didn't amount to intentional prosecutorial misconduct, which would have led the judge to blow out the case.
The Superior Court agreed.
"At the conclusion of the hearings, the trial court found that while the Commonwealth failed to provide Lynn with certain aspects of Detective Walsh's investigation, there was no evidence this failure constituted misconduct severe enough to warrant dismissal of Lynn's charges," the Superior Court wrote in a 16-page opinion authored by Judge Jack A. Panella.
The Superior Court also agreed that the D.A.'s office, under Rufus Seth Williams, was not guilty of "intentional prosecutorial misconduct," Judge Panella wrote, which would justified throwing out the case on the grounds of double jeopardy.
Here we come to the crucial part of today's Superior Court decision.
"We are unable to find a single instance during the multiple hearings on the mater where Lynn produced evidence of the Commonwealth's intent in withholding this information," the Superior Court opinion states. "It is not clear that the prosecution was even aware of the content of Detective Walsh's witness preparation interview."
"While this does not excuse the Commonwealth from performing their duties under Brady," the Superior Court wrote. The court was referring to the landmark 1963 U.S. Supreme Court case of Maryland v. Brady, which established that prosecutors have a duty to turn over any evidence that might benefit a defendant."It certainly undermines the assertion that the Commonwealth intentionally withheld the content of the witness preparation interview," the Superior Court concluded.
Lynn's lawyers had asserted that the D.A.'s office acted "intentionally and in bad faith" by placing a witness on the stand "who it alone knew would lie," the Superior Court wrote. But the Superior Court panel of judges found that "inconsistencies in evidence . . . do not equate to the introduction false evidence."
Whether Danny Gallagher is a flaming liar is an issue "solely for the jury to evaluate as to credibility," the Superior Court wrote. As to whether Assistant District Attorney Sorensen knowingly presented false evidence," the Superior Court wrote, there is no evidence of that because, according to Detective Walsh, Sorensen "repeatedly told him she believed" Gallagher's testimony.
"We will not disturb this determination," the judges wrote.
But now that the case is going to be retried, Lynn's lawyers are free to disturb this determination.
They can start by calling retired Detective Walsh to the stand, and have him testify about what a lying dirtbag Danny Gallagher is. Walsh can also testify about Assistant District Attorney Sorensen's costuming hatred of the church, and her blind, single-minded zealotry in the crusade to bag Msgr. Lynn as the designated fall guy for the sins of the archdiocese against children spanning four decades.
And then, Lynn's lawyers can introduce that compelling, newly evidence of intentional prosecutorial misconduct we spoke of earlier --- seven pages of notes typed by Sorensen on Jan. 28, 2010. That's the day Sorensen and Detective Drew Snyder interviewed Gallagher, along with Gallagher's parents, at the D.A.'s office. The interview took place right after Snyder had bailed that ne'er-do-well Danny Gallagher out of jail, so the D.A. could audition the third-rate conman for a starring role in their witch hunt they were about to stage against the monsignor and the church.
Defense lawyers say those notes should have been turned over at two previous criminal trials, where three priests and a former schoolteacher were sent to jail for the alleged repeated rapes of Danny Gallagher. The notes are the latest evidence of prosecutorial misconduct in a case replete with it; they also could be the death knell for the prosecution.
At Lynn's original trial, the trial judge, M. Teresa Sarmina, allowed the prosecution to introduce into evidence 21 supplemental cases of sex abuse dating back to 1948, three years before the monsignor was born, to show it was business as usual in the archdiocese to cover up sex abuse.
The 21 supplemental cases, however, were the reason why the state Superior Court overturned Lynn's original conviction in 2016. The appeals court ruled that the prejudicial effect of the supplemental cases far outweighed their evidentiary value. And that Judge Sarmina had abused her discretion by letting the prosecution essentially put Lynn on trial for the previous sins of the archdiocese against children dating back to 1948.
In hearings before the retrial of the case, Judge Gwendolyn Bright ruled that prosecutors could introduce as evidence only three supplemental cases of sex abuse. The D.A.'s office had requested that nine such cases be introduced as evidence, but today, the Superior Court upheld Judge Bright's pretrial ruling.
The supplemental cases of sex abuse allowed by Judge Bright involve three notorious clerical offenders with a total of at least 35 alleged victims between them -- Fathers Robert Brennan, Nicholas Cudemo, and Michael Bolesta.
"Because we find no error in the trial court's determination that the six excluded instances of other acts of evidence were marginally probative but highly prejudicial, we cannot find the the trial court abused its discretion excluding these instances," the Superior Court wrote in upholding Judge Bright's ruling.
By Ralph Cipriano
A confidential internal review of the Louis Freeh Report on the Penn State sex abuse scandal, conducted by the university's own trustees, found factual mistakes, "deeply flawed" methodology, and faulty opinions that Freeh's own staffers took issue with.
The trustees also accused Freeh of having a conflict of interest in his dealings with the NCAA.
It was the Freeh Report that the NCAA relied upon in 2012 to impose draconian sanctions on Penn State, including a $60 million fine, a bowl game ban that lasted two years, the loss of 170 athletic scholarships and the elimination of 111 of Joe Paterno's wins, although the wins were subsequently restored.
On Friday, a group of 11 trustees called on the full 38-member board to release the full 200-page critique of the 267-page Freeh Report, formally renounce Freeh's findings, and try to recoup some of the $8.3 million that the university paid Freeh.
"I want to put the document in your hands so you can read it yourself, but I can't do that today," said Alice Pope, a trustee and St. John's University professor about the internal review of the Freeh report.
But the materials that Pope and six other trustees had to sue the university to obtain are still under seal according to a 2015 court order. And the university's lawyers have recently advised the 11 minority trustees that the report they worked on for two years remains privileged and confidential, and out of reach of the public.
So yesterday, Pope called on the full board to release the 200-page report as early as their next meeting, on July 20th. But chances are slim and none that the board's chairman, Mark Dambly, and other majority board members will ever willingly open Pandora's box. They don't want to reveal to the public the facts that have cost the university millions of dollars in legal fees to keep buried for the past six years. Facts will present further evidence of just how badly the trustees, Louie Freeh, and the attorney general's office throughly botched the Penn State investigation.
The full board of trustees, Pope noted yesterday, never voted to formally adopt the findings of the Freeh Report, which found that Penn State officials had covered up the sex crimes of Jerry Sandusky.
"Rather, the board adopted a don't act, don't look and don't tell policy" Pope said that amounted to a "tacit acceptance of the Freeh Report." A report that Pope said has resulted in "profound reputational harm to our university along with $300 million in costs so far."
In addition to the $60 million in fines, the university's board of trustees has -- while doing little or no investigating -- paid out a minimum of $118 million to 36 alleged victims of sex abuse, in addition to spending more than $80 million in legal fees, and $50 million to institute new reforms aimed at preventing future abuse.
That internal 200-page report and the materials it draws upon may still be privileged and confidential, But Big Trial has obtained a seven-page "Executive Summary of Findings" of that internal review dated Jan. 8, 2017, plus an attached 25-page synopsis of evidence gleaned from those confidential files still under court seal.
According to the executive summary, "Louis Freeh and his team disregarded the preponderance of the evidence" in concluding there was a cover up at Penn State of Jerry Sandusky's crimes.
"Louis Freeh and his team knowingly provided a false conclusion in stating that the alleged coverup was motivated by a desire to protect the football program and a false culture that overvalued football and athletics," the executive summary states.
According to the executive summary, the trustees faulted Freeh and his investigators for their "willingness . . . to be led by media narratives," as well as "an over reliance on unreliable sources," such as former Penn State Counsel Cynthia Baldwin.
Freeh, the executive summary states, also relied on "deeply flawed" procedures for interviewing witnesses. The interviews conducted by Freeh's investigators weren't done under oath, or subpoenas, and they weren't tape-recorded, the executive summary wrote. That led to "biased reporting of interview data" and "inaccurate summaries" of witness testimony.
At yesterday's press conference, Pope said the 11 trustees wanted to know the degree of cooperation Freeh's team had with the NCAA and the state attorney general's office during their investigations. According to statecollege.com, state Senate Majority Leader Jake Corman has previously stated that the coordination between Freeh and the NCAA during the Penn State investigation was at best inappropriate, and at worst "two parties working together to get a predetermined outcome."
In the executive summary, the trustees cited "interference in Louis Freeh's investigation by the Pennsylvania Office of Attorney General, wherein information gathered in the criminal investigations of Penn State officials was improperly (and perhaps illegally) shared with Louis Freeh and his team."
This is a subject Big Trial will explore in a subsequent blog post. But earlier this year, I wrote to Louis Freeh, and asked if he and his team was authorized to have access to grand jury secrets. He declined comment.
Yesterday, Freeh issued a statement that ripped the minority trustees. "Since 2015," he wrote, "these misguided alumni have been fighting a rear-guard action to turn the clocks back and to resist the positive changes which the PSU students and faculty have fully embraced." He concluded that despite criticism of his report by the minority trustees, to date, they have produced "no report, no facts, news and no credible evidence" that have damaged the credibility of his investigation.
But in the executive summary, the trustees blasted Freeh for having an alleged conflict of interest with the NCAA, and they cited some credible evidence to prove it.
"Louis Freeh's conflict of interest in pursuing future investigative assignments with the NCAA during his contracted period of working for Penn State," the executive summary states, "provided motivation for forming conclusions consistent with the NCAA's goals to enhance their own reputation by being tough on Penn State."
In a criminal manner, such as the Jerry Sandusky pedophilia investigation, the NCAA had no legal standing. But the NCAA justified its intervention in the case by finding that a lack of institutional control on Penn State's part opened the door to the Jerry Sandusky sex scandal.
In their synopsis of evidence, the trustees relied on internal Freeh Group emails that showed that while Freeh was finishing up his investigation of Penn State, he was angling for his group to become the "go to investigators" for the NCAA.
On July 7, 2012, a week before the release of the Freeh Report on Penn State, Omar McNeill, a senior investigator for Freeh, wrote to Freeh and a partner of Freeh's. "This has opened up an opportunity to have the dialogue with [NCAA President Mark] Emmert about possibly being the go to internal investigator for the NCAA," McNeill wrote. "It appears we have Emmert's attention now."
In response, Freeh wrote back, "Let's try to meet with him and make a deal -- a very good cost contract to be the NCAA's 'go to investigators' -- we can even craft a big discounted rate given the unique importance of such a client. Most likely he will agree to a meeting -- if he does not ask for one first."
A spokesman for Freeh could not immediately be reached for comment.
At yesterday's press conference, Pope also raised the issue of a separate but concurrent federal investigation conducted on the Penn State campus in 2012 by Special Agent John Snedden. The federal investigation, made public last year, but completely ignored by the mainstream media, reached the opposite conclusion that Freeh and the attorney general did, that there was no official cover up at Penn State.
Pope stated she wanted to know more about the discrepancies between the parallel investigations that led to polar opposite conclusions.
Back in 2012, Snedden, a former NCIS special agent working as a special agent for the Federal Investigative Services [FIS], was assigned to determine whether Spanier deserved to have a high-level national security clearance renewed. During his investigation, Snedden placed Spanier under oath and questioned him for eight hours. Snedden also interviewed many other witnesses on the Penn State campus, including Cynthia Baldwin, who told him that Spanier was a "man of integrity."
About six months after Baldwin told Spanier this, she flipped, and appeared in a secret grand jury proceeding to not only testify against Spanier, but also against former Penn State Athletic Director Tim Curley, and former Penn State Vice President Gary Schultz.
Baldwin, who had previously represented Spanier, Curley and Schultz before the grand jury, testified last month before the disciplinary board of the state Supreme Court, where she has been brought up on misconduct charges for allegedly violating the attorney-client privilege.
After his investigation, Special Agent Snedden concluded in a 110-page report that Spanier had done nothing wrong, and that there was no coverup at Penn State.
That's because, according to Snedden, Mike McQueary, the alleged whistleblower in the case, was an unreliable witness who told many different conflicting stories about an alleged incident in the Penn State showers where McQueary saw Jerry Sandusky with a naked 10-year-old boy. "Which story do you believe?" Snedden told Big Trial last year.
In his grand jury testimony, McQueary said his observations of Sandusky were based on one or two "glances" that lasted only "one or two seconds," glances relating to an incident at least eight years previous. But in the hands of the attorney general's fiction writers, those glances of "one or two seconds" became an anal rape of a child, conclusively witnessed by McQueary.
But the alleged victim of the shower rape never came forward, and, according to the prosecutors, his identity was known "only to God." Days after the presentment, McQueary wrote in an email to the attorney general's office that they had "slightly twisted his words" and, "I cannot say 1000 percent sure that it was sodomy. I did not see insertion."
On top of that, all the witnesses the grand jury presentment claimed that McQueary reported to them "what he had seen," the alleged anal rape of a 10-year-old boy, plus another witness cited by McQueary, a doctor who was a longtime family friend, have all repeatedly denied in court that McQueary ever told them that he witnessed an anal rape.
Freeh concluded that there had been a cover up. His report also found a “striking lack of empathy for child abuse victims by the most senior leaders of the university,” which included Spanier, who had repeatedly been severely beaten by his father as a child, requiring several operations as an adult. Freeh also found that Spanier, Paterno, along with Schultz, the former Penn State vice president and Curley, the school’s ex-athletic director, “repeatedly concealed critical facts relating to Sandusky’s child abuse from the authorities.”
According to those records, Freeh's own staff reviewed a May 21, 2012 draft of the Freeh Report, which was subsequently turned over to Penn State officials. The lead paragraph of the draft said, “At the time of the alleged sexual assaults by Jerry Sandusky, there was a culture and environment in the Penn State Athletic Department that led staff members to fail to identify or act on observed inappropriate conduct by Sandusky.”
But when the state police interviewed that janitor, Jim Calhoun, he stated three times that it wasn’t Sandusky he had seen sexually abusing a boy. [The state police didn’t ask Calhoun who was the alleged assailant.] At Sandusky’s trial, however, the jury convicted the ex-coach of that crime, in part because his defense lawyer never told the jury about the janitor’s interview with the state police.
In a written statement, Freeh confirmed that the person who wrote “NO EVIDENCE AT ALL!” was one of his guys.
"Throughout the review at the Pennsylvania State University, members of the Freeh team were encouraged to speak freely and to challenge any factual assertions that they believed are not supported," Freeh wrote on Jan. 10, 2018.
"Indeed the factual assertions of the report were tested and vetted over a period of many months and, as new evidence was uncovered, some of the factual assertions and conclusions evolved," he wrote. "Our staff debated, refined and reformed our views even in the final hours before the report's release."
In another handwritten note on the draft of the report, somebody wrote that there was "no evidence" to support Freeh's contention that a flawed football culture was to blame for the Sandusky sex scandal.
"Freeh knew the evidence did not support this," the executive summary says. But in his final report, Freeh wrote about "A culture of reverence for the football program that is ingrained at all levels of the campus community."
On March 7, 2012, in a conference call, Kathleen McChesney, a former FBI agent who was one of Freeh’s senior investigators, noted that they had found “no smoking gun to indicate [a] cover-up.”
In that email chain, conducted over Penn State’s own computer system, the administrators discussed confronting Sandusky about his habit of showering with children at Penn State facilities, and telling him to stop, rather than report him to officials at The Second Mile, as well as the state Department of Public Welfare.
In the email chain, Curley described the strategy as a “more humane approach” that included an offer to provide Sandusky with counseling. Spanier agreed, but wrote, “The only downside for us if the message isn’t ‘heard’ and acted upon [by Sandusky] and we then become vulnerable for not having reported it.”
Curley subsequently told Sandusky to stop bringing children into Penn State facilities, and informed officials at The Second Mile about the 2001 shower incident witnessed by McQueary. But Penn State didn’t inform the state Department of Public Welfare about Sandusky, which Freeh claimed was the smoking gun.
Also, an earlier 1998 shower incident, referred to by Freeh, was also investigated by multiple authorities, who found no crime, nor any evidence of sex abuse.
In their executive report, the trustees refer to the allegations of a cover up as "unfounded." Freeh, however, maintained that in the six years since he issued his report, its findings have been repeatedly validated in court.
"The Freeh team's investigative interviews and fact-finding were not biased and no outcome was ever predetermined," Freeh wrote. "Their only mandate, to which they adhered, was to follow the evidenced wherever it led. The final report I issued is a reflection of this mandate."
"The accuracy and sustainability of the report is further evidenced by the criminal convictions of Spanier, Schultz, Curley," Freeh wrote. Other developments that verified the conclusions of his report, Freeh wrote, include "voluntary dismissals by the Paterno Family of their suit against the NCAA, Spanier's dismissal of his defamation suit against Freeh, the jury and court findings in the McQueary defamation and whistleblower cases, and the U.S. Department of Education's five-year investigation resulting in a record fine against Penn State."
By Ralph Cipriano
A judge last week ripped District Attorney Larry Krasner for not doing his homework in the Meek Mill case.
According to a startling, 47-page order and opinion issued by Common Pleas Court Judge Genece Brinkley, in jumping on the bandwagon to free Meek Mill, the office now run by Progressive Larry was "abdicating its responsibility to conduct a review of this case."
Progressive Larry was already down with the plan to let the rapper out of jail, vacate his prior conviction and grant him a new trial. But the judge wrote that she remained "unconvinced" that Mill's conviction should be overturned, "considering the obvious lack of investigation and review" emanating from the D.A.'s office. So the judge denied the newly freed rapper's request for a new trial.
According to the judge, when Progressive Larry latches onto a cause, as in the Meek Mill case, he doesn't let logic or facts, or the duties of his office, get in the way of his emotions. And he didn't let an apparent conflict of interest bother him either.
In her order and opinion, the judge also gave citizens a frightening look inside the assembly line now being run out of the public defender's office, where, with the full cooperation of the D.A., hundreds of drug dealers are getting free passes out of jail right here in the cradle of liberty. It's law enforcement progressive-style, where the goal is to free as many criminals as possible, so they imperil the rest of us.
As a public service, the judge, in her order and opinion, provided readers with a blow-by-blow account of her embarrassing examination of Assistant District Attorney Liam Riley, who was representing his boss in court, and championing the cause to free Meek.
The judge began by asking Riley a simple question.
Before you put your stamp of approval on Meek's petition for a new trial, the judge wanted to know, did you ever speak to any of the arresting officers? The cops who on Jan. 23, 2007, after running an undercover operation, observed the artist formerly known as Robert Williams, at the corner of 22nd and Jackson Streets, selling crack cocaine to a confidential police informant?
The Judge: "Now, for the D.A.'s office, so that the record is complete with regard to all of these stipulations, before you entered into these stipulations, Mr. Riley, did you subpoena or speak to retired Police Officer Reginald Graham?"
ADA Riley: "I did not, Your Honor."
The Judge: "Did you subpoena or speak to his lawyer, Mr. Abdul-Rahman?"
ADA Riley: "I did not, Your Honor."
The Judge: "Did you subpoena or speak to Police Officer Sonya Jones, who conducted the undercover surveillance with Police Officer Graham back on Jan. 23, 2007?"
ADA Riley: "No, I did not, Your Honor."
The Judge: "Did you subpoena or speak to Officer James Johnson, or any of the other back-up officers involved in the paperwork on Jan. 24, 2007?"
ADA Riley: "No, I did not, Your Honor . . ."
The Judge: "Did you speak to anyone at the FBI regarding their investigation of retired Police Officer Reginald Graham before you agreed to anew trial in this case? That happened on April 16th."
ADA Riley: "I did not speak to him, Your Honor."
The Judge: OK. Did you subpoena or speak to retired federal prosecutor Curtis Douglas?"
ADA Riley: "I did not."
The Judge: "Did you actually review any of the 302 investigation reports of the federal government involving Police Officer Jett, who was one of the police officers involved in the arrest?"
ADA Riley: "I cannot say I reviewed the 302s, Your Honor. I am one of a number of people who have worked on these police misconduct investigations overall. So there -- I'm sure people in our office have."
The Judge: "OK, well your name is on everything that was submitted."
ADA Riley: "Correct, Your Honor, I'm clear I did not do that at all."
Now that should give every citizen about the way Progressive Larry the ideologue is handling the duties of his office.
In her 47-page opus, the judge recounted what happened after the undercover officers observed Williams selling crack cocaine to a confidential informant. When Williams saw the cops, he rode away on a dirt bike.
The very next day, the cops watched Williams make another drug sale to another confidential informant. According to the judge, when the cops confronted him, Williams responded by pointing a loaded gun at the officers before he took off running.
In a subsequent search of his home, after his arrest, according to the judge, the police discovered "13 red packets and 13 clear jars with purple tops of marijuana, 128 grams of marijuana in a clear Ziploc baggy, and $6,808 in U.S. currency."
The cops were just getting started.
"From the dining room table, police discovered 6 grams of marijuana and a black gun holster," the judge wrote. "From the basement police recovered 11 grams of crack cocaine in one clear baggy, and a black bag that contained 213 grams of marijuana, as well as a variety of drug paraphernalia, including razor blades covered in white powdery residue, new and used clear plastic packets, clear jars with purple tops, and box of Remington 40 caliber bullets."
That's in addition to a gun that Williams kept in his pants, a "9 mm Luger semi-automatic loaded with 8 live rounds, with an obliterated serial number."
But now that he's a famous rapper, free Meek Mill!
In another section of her order and opinion, the judge questioned Public Defender Bradley Bridge on the process by which his office is getting hundreds of convicted drug dealers out of jail.
The current freedom train starts with our top law enforcement officer, Progressive Larry Krasner. Progressive Larry keeps a "Do Not Call List""regarding officers from which there have been credibility issues that have risen," Bridge told the judge.
Everything about the Do Not Call List, as in do not call them as witnesses, is murky. What a cop has to do to get on Larry's list. What a cop has to do to get off Larry's list, short of death. And the big question is whether due process has anything to do with Larry's list.
In the case of retired Police Officer Reggie Graham, the cop who arrested Meek Mill, here's what happened when he landed on Larry's Do Not Call List. Over at the Public Defender's office, Bradley Bridge automatically knows that whenever a cop lands on Larry's list, there's automatic questions he plans to raise about the legitimacy of any arrests the cop might have made. So Bridge proceeds to try and get as many people as possible previously arrested by that cop out of jail.
In the judge's 47-page order and opinion, she describes that process. According to Bridge, you land on the list if you're guilty of "criminal charges, deceit or brutality." Again, there's a question of due process.
The public defender meets with the D.A., to "determine the viability of a claim that the conviction was gained by corrupt police officers at a time that the corruption was known to have existed," Bridge told Judge Brinkley.
The cases are then "consolidated for review, and relief is granted by agreement of the parties," the judge wrote. If the D.A. has no further evidence "other than the testimony of the corrupt police officer," the case is "nolle prossed," meaning abandoned or dismissed, at the "very same hearing," the judge wrote.
"Bridge has averred in his affidavit that he has worked on vacating over 1,500 convictions and filed an additional 6,000 PCRA [Post Conviction Relief Act] petitions based upon police officers on the Do Not Call List," the judge wrote.
The cases are consolidated and presented to one judge "in order to ensure a consistent process," the judge wrote. It's assembly line justice. However, there appear to be some flaws in the freedom train, starting with the capabilities of Public Defender Bridge.
In the case of rapper Meek Mill, the judge wrote, "Bridge inaccurately stated the facts of Defendant's case" to Judge Brinkley. According to the judge, Bridge said that the defendant pleaded guilty to a single charge, possession with intent to distribute, and was sentenced on Aug. 19, 2008 to two-to-four years in jail, plus probation for eight years. Bridge also stated that the rapper never filed an appeal under PCRA.
But, the judge wrote, the true facts are: the defendant never pleaded guilty, he was convicted at a nonjury trial. He was also charged with three other crimes, including a violation of the Uniform Firearms Act, possession of an instrument of crime, and simple assault.
Bridge also got the sentencing date wrong and the sentence; the defendant was sentenced on Jan. 16, 2009 to 11 1/2 to 23 months in jail, plus 10 years probation, the judge wrote. And the defendant did file a PCRA appeal, in 2018!
Way to go Bradley!! For those of you scoring at home that's five errors on the basic facts of the record of one defendant.
In his PCRA petition on behalf of the rapper, Bridge stated that he is "still not aware" of the facts that "justified Officer Graham's placement on the secret list," the judge wrote. And that Bridge went out and got three of Officer Graham's prior cases dismissed, "without ever making himself aware" of how and why Officer Graham wound up on the D.A.'s Do Not Call list, the judge wrote.
The judge seemed shocked at the way Bridge was going about his business, without any facts at his disposal, other than the D.A.'s Do Not Call list.
"The records in those cases remain void of any investigation that would have informed Bridge as to the facts know to the District Attorney that would justify Officer Graham's placement on the list," the judge wrote. The judge added that "having taken notice of how inaccurate the facts were," and how Bridge bungled applicable case law in his petition on behalf the rapper, "This court cannot rely on Bridge's testimony regarding how such PCRA petitions should be handled."
The judge said she found similar mistakes made by Bridge in other PCRA petitions made by the public defender in attempting to toss previous arrests made by retired Officer Graham. "It is not clear whether Bridge's statements were intentional misrepresentations or innocent errors," she wrote.
During the hearing where Bridge got three previous Graham arrests tossed by Judge Sheila Skipper Woods, Judge Brinkley wrote, "It is undisputed that no findings of fact of law were actually put on the record. As a result, this Court is not bound by those determinations."
Now we finally get to due process, and the flaws in the operation of the freedom train. During his appearance in Judge Brinkley's court, Public Defender Bridge testified that he filed a group of 1,400 PCRA petitions involving arrests made by Officers Thomas Liciardello, Brian Reynolds, Perry Betts, Michael Spicer, John Speiser and Linwood Norman; all former members of the Narcotics Field Unit South.
More than 1,000 of the unit's arrests have already been overturned to date, most involving convicted drug dealers who had pleaded guilty. Hundreds of these cases were dismissed on the accusations of a government informant, a corrupt former officer named Jeffrey Walker, even before the officers went on trial in a 26-count federal racketeering case.
These aren't nickel bag arrests. In two of those arrests, Mohammed Samhan and Kit "Fatboy" Poon, were caught red-handed in 2012 with more than 200 pounds of marijuana worth more than $2 million. Both drug dealers decided to cooperate, before they were sprung from jail by Bradley Bridge, with the cooperation of former District Attorney Rufus Seth Williams.
Then, the narcs went to trial in federal court. On May 14, 2015, a jury found those six cops not guilty on all 47 charges contained in 26 separate counts. The jury foreman told this reporter the case was so easy to decide they could have been done in ten minutes, because the government had no evidence to prove any of the charges, other then the seemingly rehearsed and amazingly similar stories, complete with the same catch phrases, told by a bunch of drug dealers, and the accusations of corrupt cop Jeffrey Walker.
In her opinion and order, Judge Brinkley explained the process of how the public defender's office goes about getting convictions of drug dealers thrown out en masse. It's pretty shocking stuff:
"Bridge testified that he would provide the court with a spread sheet and the court would go through the list, typically giving each case 10 to 15 seconds of consideration, and grant relief in bulk," Judge Brinkley wrote. "He [Bridge] stated that as many as 150 cases were reviewed in one sitting. In all of those cases, no evidentiary hearing took place," the judge wrote, "and the court granted relief solely based upon agreement of the parties without any further inquiry. He [Bridge] testified that this had been the process for the past 23 years."
Bridge then explained to Judge Brinkley that he filed PCRA petitions against former Officer Graham based on two events. The first event, the judge wrote, was an article in the Inquirer alleging that Officer Graham had been placed on the D.A.'s Do Not Call List.
The second event Bridge referred tp occurred on March 25, 2018, when Progressive Larry Krasner actually gave Bridge a copy of his top-secret Do Not Call List.
A grateful Bridge stated that he promptly went out and "filed a total of 290 post-conviction petitions solely based upon the District Attorney's" Do Not Call List. And that three of the petitions had already been granted thanks to "the streamlined process" already in place where the D.A. and the public defender agree that the defendants require "immediate relief without an evidential hearing."
All that's needed in Philadelphia for a convicted drug dealer who probably pleaded guilty to get out of town, Judge Brinkley wrote, is for a judge to write: "PCRA is granted. Motion for New Trial Granted. Commonwealth's motion to nolle prosse is granted due to credibility of the arresting officer and no additional evidence available."
The judge then overturns the prior conviction and grants a new trial.
As another public service, Judge Brinkley recounted her questioning of Public Defender Bridge, about what he did to investigate the credibility of Officer Graham, who was accused of corruption by another corrupt cop, Jeffrey Walker:
Bridge: "No. I take that back. I mean, I take that back. I did look at some internal affairs investigations involving him [Officer Graham]."
The Judge: "Did you speak to retired Police Officer Graham yourself?"
Bridge: "I have not."
The Judge: "OK. Did you subpoena or speak to his lawyer, Mr. Abdul-Rahman?"
Bridge: "I did not . . ."
The Judge: "Did you subpoena or speak to anyone -- I'm sorry, Police Officer Sonya Jones, who conducted undercover surveillance with Police Officer Graham back on Jan. 23, 2007?"
Bridge: "I did not."
The Judge: "Did you subpoena or speak to Officer James Johnson or any of the other back-up officers that were in the police paperwork for the date of arrest . . . 1/242007?"
Bridge: "I did not."
The judge then asked if Bridge had ever talked to any FBI agents "specifically about [Officer] Graham?"
"I don't recall," Bridge said. "No, I don't think so."
The Judge: "Ok, were you aware of retired Police Office Graham's cooperation with the federal authorities back in 2014?'
Bridge: "I read about it, but I didn't have that information."
The Judge: "You didn't have that information?"
Bridge also told the judge he never spoke with anybody from the Philadelphia Police Department's Internal Affairs or Officer Graham or his lawyer, before "agreeing with the Commonwealth that there were credibility issues related to Graham."
"When asked what exactly he did do," the judge wrote, "Bridge stated, 'I examined the District Attorney's Do Not Call List. I saw the allegations contained on the list . . . It was based on that that I went forward and filed the post-conviction relief."
It turns out that retired Officer Reggie Graham was a federal informant who, during 2013 and 2014, when the FBI was investigating the narcs, "provided unsolicited information to federal investigators," the judge wrote. And one of those corrupt officers that Graham informed on was Jeffrey Walker, the judge wrote, before Graham put in for a transfer.
"Officer Graham did all of this in order to disassociate himself from both Walker and the other corrupt officers," the judge wrote. "As a result, Walker was then transferred and Officer Graham was not . . . A few months thereafter, Walker was arrested for planting drugs in a vehicle."
When Walker got arrested, guess who was his lawyer? Why it was ace defense lawyer Larry Krasner, a fact noted by the judge.
"Notwithstanding the issue of a possible conflict of interest," Judge Brinkley wrote, Krasner as D.A. "agrees to PCRA relief in the form of a new trial."
Instead, because he had the appearance of a conflict of interest, Krasner probably should have disqualified himself.
Walker told the feds he gave Graham an envelope stuffed with cash, but Graham told the FBI he threw it in the trash.
"Officer Graham further explained that shortly before Walker was arrested, Walker confided that the other corrupted officers pulled guns on Walker and threatened to kill him because they found out he was talking to the FBI and ADA Douglas," the judge wrote. "Officer Graham then contacted ADA Douglas out of concern for Walker's safety."
As a result of cooperating, the judge wrote, Graham had his tires slashed and all the window in his apartment broken.
In her opinion, Judge Brinkley wrote that "disgraced former Officer Jeffrey Walker is not credible" as the main accuser against Meek Mill's arresting officer, Reggie Graham. Graham, who broke his silence on the case during an interview with Steve Volk of Philly mag, continues to proclaim his innocence, the judge noted.
The judge noted that Walker "was not present" at Meek Mill's arrest "and therefore had no personal knowledge of the case." Walker was also the prosecution's main witness at the racketeering trial of the six former members of the Narcotics Field Unit South, the judge wrote, and the jury obviously didn't believe him when they acquitted all six officers on all 47 charges.
The subject of Paw's email: "CLOSE HOLD -- Important."
And now the propriety of Fina's actions while he was leading the grand jury probe on behalf of the state attorney general's office, and routinely swapping intel with investigators for the Freeh Group, have been called into question by 11 Penn State trustees.
On Friday, the 11 trustees called on the full 38-member Penn State board to release a confidential 200-page review of source materials for the 267-page Freeh Report. The trustees also called on the board to formally renounce Freeh's findings, and try to recoup some of the $8.3 million that the university paid Freeh.
Alice Pope, a St. John's University professor who is a Penn State trustee, told spectators and reporters that she was concerned about "additional information" that has "emerged in the public domain" indicating there was "cooperation between the PA Office of Attorney General and Freeh" during their parallel investigations into the Penn State sex abuse candal.
"We believed it was important to understand the degree of cooperation between the Freeh investigation and the Office of Attorney General," Pope said.
The trustees have been concerned for years about the extent of this cooperation between Fina and the Freeh Group, and in the past, have privately questioned whether Fina's conduct was improper or illegal.
In an "Executive Summary of Findings" of the internal review of the source materials for the Freeh Report, dated Jan. 8, 2017, Penn State's trustees cited concerns over "interference in Louis Freeh's investigation by the Pennsylvania Office of Attorney General."
That interference was defined in the executive summary as: "information gathered in the criminal investigations of Penn State officials" that was "improperly (and perhaps illegally) shared with Louis Freeh and his team."
On Oct. 22, 2012, Fina told grand jury Judge Barry Feudale not to worry about rule 3.10 of the code of professional conduct for lawyers in Pennsylvania that required the judge to hold a hearing first to see whether Baldwin's testimony would violate the attorney-client privileges of three of her former clients.
As far as Fina was concerned, it was more important to keep the grand jury proceedings secret, as well as the news that Baldwin was now cooperating with the state attorney general's office, and testifying behind closed doors against her former clients -- former university president Graham Spanier, former university vice president Gary Schultz, and former university athletic director Tim Curley.
"We need not address the privilege issue," Fina told the judge. "We can address that later on," because Fina promised not to ask any questions that would violate that privilege. The judge instructed Fina to proceed under the assumption that "you're not going to get into any inquiry as to [Baldwin's] representation" of her former clients.
Then, four days later, according to the disciplinary board, Fina proceeded to do just that a total of 73 times. In the grand jury, Fina questioned Baldwin about her representation of the former clients, what they said to her, and what she said to them.
Amelia C. Kittredge, counsel to the disciplinary board, declined comment on Fina's cooperation with the Freeh Group. Dennis C. McAndrews, the lawyer representing Fina before the disciplinary board, also could not be reached for comment.
Confidential records reveal that Fina was repeatedly swapping inside dope with investigators at the Freeh Group throughout the attorney general's secret grand investigation of Penn State The intel exchange allowed investigators for the Freeh Group and the attorney general's office to play tag-team with grand jury witnesses such as Baldwin.
Freeh's investigators questioned Baldwin three times, on Nov. 23, 2011, Feb. 29, 2012, and May15, 2012, before they released their report about Penn State on July 12, 2012. And Deputy Attorney General Fina seemed to know what was going on every step of the way before he brought Baldwin into the grand jury on Oct. 26, 2012, to testify against her three former clients.
As a result, both investigations were contaminated, and may have yielded poisoned fruit.
On Oct. 31, 2012, the same day Fina was telling the Freeh Group about the imminent arrests of Spanier, Curley and Schultz, Paw, a senior investigator for Freeh, wrote an email to Omar McNeill, another Freeh senior investigator, divulging the confidential details of how deputy Attorney General Fina was pressuring Baldwin's lawyer in his campaign to turn Baldwin into a cooperating witness.
Internal emails from the Freeh Group reveal that the attorney general's office for months had been working hand-in-hand with the Freeh Group while investigating Penn State.
"Greg [Paw] spoke with Fina," Kathleen McChesney, a former FBI agent who was a senior investigator for Freeh, wrote on April 19, 2012. The deputy attorney general conveyed that he "does not want Spanier or other [defendants[ to see documents; next 24 hours are important for case & offered to re-visit over weekend re: sharing documents; attys & AG's staff are talking, & still looking to charge Spanier . . ."
"He [Fina] said that the feedback he received from jurors was that they wanted someone to take a 'fire hose' to Penn State and rinse away the bad that happened there. He [Fina] said that he still looked forward to a day when Baldwin would be ‘led away in cuffs,’ and he said that day was going to be near for Spanier.”
But in her interview with Freeh's investigators, Baldwin had plenty to say about her former client. She described Spanier as a "rationalist," someone who "believed that if he explained the elements of a problem in a certain way people would accept his reasoning and the problem would go away."
When Penn State got hit with subpoenas in the Sandusky investigation for football coach Joe Paterno, Spanier, Curley and Schultz, Spanier was "surprised but did not get excited and said things would be fine," Baldwin told the two investigators from the Freeh Group.
"Looking back, she considers his reaction to be another example that he [Spanier] was a 'rationalist in the extreme," the report quotes Baldwin as saying. "Furthermore, she did not get the impression that any of the three men are concerned about the subpoenas."
In her interviews with the Freeh Group, Baldwin revealed that Frank Fina wasn't the only person from the AG's office who was leaking secrets.
"In late October 2011, General Counsel Baldwin heard discretely from an individual in the Attorney General's office that a grand jury presentment was about to be released," the report said. "According to this individual, Curley and Schultz were included in the presentment regarding their 'duty to protect' and 'reporting abuse.'"
On March 30, 2012, McChesney took notes about grand jury intel relayed by Fina to Paw.
"Grand jury re Baldwin; judge not happy with what she said about representing the university -- inconsistent statements -- we are getting [copies] of the transcripts . . . "
In the grand jury proceedings, Baldwin asserted hat she had represented the university, and not Spanier, Schultz, or Curley. Apparently, the judge had a problem with that, according to McChesney's notes.
On June 28, 2012, McChesney noted an email Paw sent to the Freeh Group, talking about his frequent conversations with Fina. They were trying to figure out the identity of the other leaker from the attorney general's office who had previously tipped off Baldwin about what the grand jury was up to.
Penn State was served with subpoenas for documents in December 2010, but did not comply until April 2012.
John Snedden, a former special agent for NCIS and the Federal Investigative Services, investigated the alleged coverup at Penn State to decide whether Spanier's high level security clearance should be renewed. As part of his 2012 investigation, Snedden interviewed Cynthia Baldwin in March 2012. In that interview, Baldwin called Spanier "a very smart man, a man of integrity," and said that she trusted Spanier, and trusted his judgment.
To Snedden, Baldwin, who, in May was also brought up on misconduct charges in front of the disciplinary board of the state Supreme Court, has lost all credibility.
"You've got a clear indication that Cynthia Baldwin was doing whatever they wanted her to do," Snedden said about Baldwin's cooperation with the attorney general's office.
An appeals court has already ruled that Fina's dealings with Baldwin were improper on both ends.
On Jan. 22, 2016, the Pennsylvania Superior Court dismissed a total of eight charges, including charges of perjury, obstruction of justice and conspiracy against both former Spanier and Schultz, and charges of obstruction and conspiracy against Curley.
Another term for those grand jury "insights" gleaned from our "contacts at the AG" -- leaks.
Fina is now a criminal defense lawyer. And one of his most prominent recent clients is Brendan Young, the Penn State fraternity president charged with manslaughter and other crimes in the alcoholic-fueled hazing death of Timothy Piazza, a former pledge.
Fina has also been accused in court of leaking grand jury secrets by Jerry Sandusky's appeal lawyers. But on Oct. 18, 2017, Jefferson County Presiding Judge John Henry Foradora issued a 59-page opinion where he cleared Fina of leaking, while denying Sandusky a new trial sought under the Post Conviction Relief Act.
And also because Fina told the judge that he supposedly set a trap to find the real leaker, the judge wrote, but apparently Fina was as successful as O.J. Simpson in his hunt for the real killers who murdered his wife.
On the witness stand at the trial of former Penn State President Graham Spanier on March 21, 207, McQueary testified it was Eshbach who called him during a bye week in the 2011 football season, days before the release of the grand jury report, and said, "We're going to arrest folks and we are going to leak it out."
Apparently, that's how things are done in the attorney general's office; leak, leak, leak. Authorized leaks and non-authorized leaks. And that leaking is done without regard for grand jury secrecy, the constitutional rights of the accused, or any sense of fair play.
That's how the game is played in Pennsylvania, where the prosecutors, behind closed doors in secret grand jury proceedings before friendly judges, already hold all the cards.
By Ralph Cipriano
Lawyers for Graham Spanier have called on the state Superior Court judge who wrote the June 26th opinion upholding the former Penn State president's conviction on one count of endangering the welfare of a child to recuse himself from the case because of an undisclosed conflict of interest.
In a 16-page application for recusal filed yesterday, Spanier's lawyers argue that state Superior Court Judge Victor P. Stabile should disqualify himself because he previously testified in a lawsuit against Penn State and Spanier, and also attacked Spanier in an old email as an "emperor" in "new clothes."
In the application for recusal, Spanier's lawyers seek the vacating of the Superior Court's decision upholding Spanier's conviction, and a chance to reargue their appeal before a new panel of judges, or the entire Superior Court.
Three days after Judge Stabile authored a 2-1 Superior Court decision upholding Spanier's conviction, Spanier got an email from an old colleague, Philip McConnaughay, former dean of the Penn State Dickinson School of Law [DSL] from 2002 to 2013.
In the email, McConnaughay informed Spanier that "between 2003 and 2006, Judge Stabile, then a lawyer in private practice, was a leader of a group of DSL alumni who were stridently opposed to Penn State's plans to either relocate DSL or to create a second campus of DSL in State College," Spanier's lawyers wrote.
While leading that opposition, Stabile "made critical personal comments about those Penn State administrators, including Dr. Spanier, who favored such a plan," Spanier's lawyers wrote.
"Emails and documents from that period that Dr. Spanier has obtained in the past few days demonstrate that there are grounds for Judge Stabile's recusal from participation in this matter. In light of this information, the Court should vacate the Panel's decision, and the matter should be reassigned and reargued before another panel or before the Court en banc."
Penn State had previously proposed moving DSL from it's longtime location in Carlisle, PA to Penn State's main campus in State College. The plan "was eventually abandoned in favor of a proposal to create a two-campus law school, with facilities in Carlisle and State College," Spanier's lawyers wrote.
Both the plan to merge the two institutions, and the two-campus plan "met with substantial and vociferous opposition from a faction of the DSL alumni," Spanier's lawyers wrote. During that period, Stabile, a DSL graduate from 1982, was a member of DSL's General Alumni Association [GAA] board of directors. Stabile also served on a five-person committee of the GAA board that "criticized the proposal" put forward by Penn State, and in the process, "made several disparaging comments about those members of the Penn State administration who favored the proposal, including Dr. Spanier," Spanier's lawyers wrote.
"I still do not understand why Penn State bothered to merge Dickinson if it seems intent on changing everything about the school," Stabile wrote in a 2003 email. "They could have built their own damn school in State College and accomplished the same thing without eradicating an institution."
In another email a few days later, Stabile wrote about the plan to relocate DSL, "There is a certain arrogance here that is unacceptable."
In their brief, Spanier's lawyers cite emails critical of Spanier that were sent to the GAA, of which Stabile was a member, referring to "that chief hustler Spanier" who was allegedly "pushing for approval Saturday" for the two-campus proposal.
A report issued by the GAA board, endorsed by Stabile, described the Penn State administration as "incompetent" and criticized Spanier several times, Spanier's lawyers wrote.
"For example, the report questioned Dr. Spanier's motives in proposing the two-campus model and implied that he [Spanier] falsely attributed the original relocation idea to the DSL dean, rather than the Penn State administration," Spanier's lawyers wrote. "The report posed a rhetorical question regarding Dr. Spanier's alleged motives in putting forth the two-campus proposal: 'Surely it has nothing to do with an employment contract extended in 2003 and expiring in the next year?'"
The report also contended that Spanier "promoted in his biography his role in the DSL merger but hid his responsibility for other mergers that allegedly failed," Spanier's lawyers wrote, quoting the report.
In January 2005, the DSL Board of Governors met to vote on whether to agree with Penn State, and move forward with the two-campus plan. The day before the vote, Stabile sent an email to the GAA board, complaining that "I can't imagine why many think this is a great proposal. The emperor certainly has new clothes . . ."
"The crisis here has been been wholly fabricated by PSU," Stabile wrote. In the same email, Stabile also claimed that the two-campus plan would result in "complete subjugation by DSL."
"I have no more words left; the process that has proceeded through does not do justice to our profession, nonetheless to its leadership -- and this is an institution that teaches the rule of law!!" Stabile wrote. "Count me as embarrassed and disgusted."
In February 2005, three DSL alumni sued Penn State, Spanier, and the DSL board of governors, seeking to stop implementation of the two-campus plan. At a GAA board meeting a couple days later, Stabile "advocated intervening on behalf of the plaintiffs in their suit against Dr. Spanier," Spanier's lawyers wrote.
That's just what happened.
On May 19, 2005, Stabile testified in that litigation about his opposition to the two-campus proposal. He admitted during that dispute, "emotions were running high on both sides," Spanier's lawyers wrote.
During his testimony, Stabile described the reaction to GAA's opposition to the two-campus plan as "very hurtful to see us cast in this light. Stabile also admitted while testifying that he "was particularly hurt" to be "dismissed as . . . merely angry or somewhat of a malcontent."
"The standard for recusal requires a judge to recuse from hearing a matter where the judge's impartiality might reasonably be questioned," Spanier's lawyers wrote. "Recusal is warranted where a judge has a 'personal bias or interest which would preclude an impartial review' or where 'his participation in the matter would give the appearance of impropriety,'" Spanier's lawyers wrote.
It's not necessary for a judge to have an actual conflict of interest to recuse himself, Spanier's lawyers wrote. Merely having "an appearance of impropriety alone forms an independent basis for recusal even when no actual bias, unfairness, or prejudice is shown" on the judge's part, Spanier's lawyers wrote, quoting case law.
"Disqualification is mandatory 'in any proceeding in which the judge's impartiality might reasonably be questioned,'" Spanier's lawyers wrote. "Avoiding the appearance of impropriety . . . is mandatory."
"Judge Stabile should recuse from this matter because of his prior role in strenuously and personally opposing the actions of Dr. Spanier and Penn State University regarding Dickinson School of Law," Spanier's lawyers wrote.
Stabile's past actions provide a "substantial basis to request Judge Stabile's recusal." Documents also reveal a "strident and personal reaction from Judge Stabile" to the proposals from Spanier and Penn State to move DSL, Spanier's lawyers wrote.
Stabile was "a leader of a faction of the alumni that severely criticized" Spanier, his lawyers wrote. In addition, Stabile and others "met, communicated, and prepared reports that attacked the motives, the integrity, and the competence of Dr. Spanier and other administrators involved in the two-campus proposal. Judge Stabile strongly opposed the proposal, actively worked to stop it [including by testifying in litigation filed against Dr. Spanier to accomplish this goal] and admitted that he was 'hurt' by the criticism of his opposition."
During the "bitter dispute over the two-campus proposal," Stabile "exhibited anger and personal animosity toward the Penn State administration, headed by Dr. Spanier," his lawyers wrote. Although "any bias or prejudice" against Spanier "may have diminished in the decade or so since the dispute took place," Stabile's partisan involvement "is something that should have been disclosed when Dr. Spanier's appeal was assigned to a panel that included Judge Stabile," Spanier's lawyers wrote.
Then, Spanier's lawyers quoted the standard for judicial disclosure of an apparent conflict of interest:
"Where a court has specific knowledge of a private matter or situation in which his or her impartiality may reasonably be questioned, it is his duty to disclose that information to the parties."
Judge Stabile, Spanier's lawyers argued, clearly failed to meet that standard.
Spanier, convicted on June 24, 2017, was given a sentence of 4 to 12 months, with at least two months to be served in jail. His sentence, however, has been suspended pending his appeal.
The filing seeking the recusal of Judge Stabile was the second filing in the case made yesterday by Spanier's lawyers, who also appealed the state Superior Court's upholding of Spanier's conviction on technical grounds.
The basic problem is that the attorney general's office indicted Spanier on Nov. 1, 2012 for allegedly endangering the welfare of a child back in 2001, by supposedly not doing anything about the alleged shower rape witnessed by Mike McQueary.
The technical problem on appeal is that the statute of limitations for endangering the welfare of a child [EWOC] is two years, so the Commonwealth's indictment of Spanier missed the mark by more than a decade. To uphold Spanier's appeal, the Commonwealth invoked an exception to the statute of limitations that wasn't law until 2007, an exception that wasn't raised by the Commonwealth at trial, nor considered by the jury.
In a 15-page application for rearmament, filed yesterday, Spanier's lawyers argue that in upholding Spanier's conviction"on the basis of a statue-of-limitations exception the Commonwealth never raises constitutes a dramatic departure from longstanding due process jurisprudence." Under state law, the Commonwealth was required "to give a defendant notice on the specific basis on which it alleges a prosecution is timely," according to the brief written by Timothy K. Lewis, Samuel W. Silver and Bruce P. Merensteain of Schnader Harrison Segal & Lewis LLP of Philadelphia.
There are other problems with the EWOC charge that the corrupt legal system of Pennsylvania fails to recognize -- even McQueary admitted in writing he never saw an anal rape of a 10-year-old boy by Sandusky, as alleged in the grand jury presentment. The marquee crime in that indictment amounts to fiction. A jury also found Sandusky not guilty of that crime. The victim has never come forward, and a federal investigation, previously undisclosed, determined that McQueary was not a credible witness.
At Spanier's trial, according to his lawyers, it was the state's burden to give a criminal defendant notice when the prosecution is pulling some legal games to get around the statute of limitations, which in this case had clearly lapsed by more than 10 years.
The other legal problem with Spanier's conviction was that the state's original child endangerment law, passed in 1972, did not apply to Spanier when the alleged crime that never happened, the 2001 shower rape witnessed by McQueary, supposedly occurred.
In 2001, the child endangerment law, as previously discussed on this blog, did not apply to supervisors such as Spanier; it only applied to people who had direct contact with children, such as parents, teachers and guardians.
In 2007, the state legislature amended the child endangerment law to include supervisors. So convicting Spanier of a law that wasn't in effect when the crime allegedly occurred violates what's know as "the Ex Post Facto and Due Process Clauses of the state and federal constitutions, which do not permit a jury to convict a defendant for violating a state statute enacted after the conduct on which the conviction is based," Spanier's lawyers wrote.
According to Spanier's lawyers, "Pennsylvania law is clear: the Commonwealth must provide a defendant with notice of the specific exception . . . on which it relies to salvage an otherwise time-barred prosecution" at a "reasonable time before trial."
The exception that the Superior Court relied on to get around the statute of limitations was enacted by the state Legislature when it amended the child endangerment statute in 2007 to include supervisors. According to the exception, if the victim who was abused was under 20 years of age when the abuse occurred, the victim had until his 50th birthday to file criminal charges.
But that exception wasn't even law when the shower incident allegedly occurred. Spanier's lawyers also point out that the jury was never instructed on the exception "despite Dr. Spanier's repeated requests that the jury be instructed on the statute of limitations."
"The trial court's failure to instruct the jury on what it must find to conclude that the prosecution was timely and the lack of a jury finding that the prosecution is timely renders Dr. Spanier's conviction invalid," his lawyers concluded.
"Over Dr. Spanier's objections, the trial court instructed the jury that it could find him guilty of child endangerment if, among other things, he employed or supervised someone else who was supervising the welfare of a child," Spanier's lawyers wrote.
But that language "did not become part of the child endangerment statue until January 2007, almost six years after the events on which Dr. Spanier's" conviction was based on," Spanier's brief states.
"An instruction that permitted the jury to convict Dr. Spanier of violating a statute that was not in existence at the time of the events forming the basis for that conviction is a violation of the Ex Post Facto and Due Process Clauses of the federal and state constitutions," Spanier's lawyers wrote.
In upholding Spanier's conviction, the Superior Court relied on a case known as the Commonwealth v. Lynn, as in Msgr. William J. Lynn, the former secretary for clergy for the Archdiocese of Philadelphia.
In the Lynn case, Spanier's lawyers argue, the state Supreme Court held that Lynn was the "point man" who was "specifically responsible" for handling all child abuse allegations because he was "uniquely responsible for safeguarding all of their physical and moral welfare, and he supervised and directed the priests who directly interacted with [the children]."
But Spanier 's case doesn't measure up to these standards, his lawyers concluded.
"No evidence was presented that Dr. Spanier was the 'point man' for all child-abuse allegations, that he was 'specifically responsible' for handling such allegations, that he was 'uniquely responsible' for safeguarding the welfare of minor children, or that he supervised or directed an actual child abuser," Spanier's lawyers wrote.
Sandusky was a retired former employee when the 2001 shower incident allegedly occurred.
In the latest edition of Mob Talk Sitdown, reporters George Anastasia and Dave Schratweiser talk about the latest federal indictment rumors, and why former mob boss Joey Merlino had a steak dinner in New York City with Robert De Niro.
By Ralph Cipriano
To make his closing argument today on behalf of Frank Fina in an ethics case, lawyer Joseph McGettigan sunk to the occasion by applying a fresh coast of slime to many of his client's perceived enemies.
At the end of a three-day hearing before the state Supreme Court's disciplinary board, McGettigan started out by attacking the investigation of Fina as "dishonorable and shameful."
The disciplinary board, McGettigan said, had gone out of its way to "smear a man and mischaracterize his honorable conduct."
McGettigan was just warming up. By the time he sat down, he had implied that the two women who filed the original ethics complaint against Fina were Penn State "truthers" possibly acting in consort with lawyers for any or all of five criminals that crime-buster Fina had previously put away. McGettigan also attacked the disciplinary board's counsel for supposedly siding with those "five convicted criminals" in a campaign to "defame, denigrate and criticize a hard-working public servant."
At the Jerry Sandusky trial in 2012, McGettigan and Fina worked side by side as prosecutors on behalf of the state attorney general's office.
Today, the scene of the legal battle was the disciplinary board, where Fina is accused of violating the attorney-client privilege during a 2012 grand jury session where he questioned former Penn State Counsel Cynthia Baldwin about her interactions with three former clients.
In his scorched-earth summation, McGettigan went through the cast of characters that he said were standing on both sides of this ethical battle. On his side, McGettigan said, was Fina the "hardworking public servant," the "honorable" Cynthia Baldwin, a former state Supreme Court justice; and Ron Castille, a former chief justice of the state Supreme Court who testified pro bono today as an expert witness on Fina's behalf.
And on the disciplinary board's side, McGettigan said, were the two Penn State "truthers" who had viciously attacked his client by filing their complaint, "probably" at the behest of "defendants' lawyers." Also on the disciplinary board's side, McGettigan said, were five criminals that Fina had played a central role in convicting. They include former Penn State President Graham Spanier, former PSU Vice President Gary Schultz, former PSU athletic director Tim Curley, convicted child abuser Jerry Sandusky, and former state Attorney General Kathleen Kane.
Spanier was convicted on one count of endangering the welfare of a child; Curley and Schultz pled guilty to one count each of child endangerment. Sandusky got convicted on 45 counts of the sexual abuse of children. And Kane, after engaging in a messy public feud with Fina, had to resign after she was convicted of perjury, conspiracy and obstruction of justice. The charges emanated from Kane's decision to leak secret grand jury information to a Philadelphia Daily News reporter, in an ill-fated attempt to get back at Fina.
"Convicted, convicted, convicted, convicted, convicted," McGettigan intoned as he ran down the roster of Fina's political adversaries; adversaries that McGettigan implied, were still trying to get back at Fina through the useful idiots at the disciplinary board.
McGettigan had harsh words for Amelia C. Kittredge, the disciplinary board's counsel who brought the case against Fina. McGettigan ripped Kittredge for bringing a "bizarre and inexplicable" case that McGettigan said included no fact witnesses.
"I don't need no stinking witnesses," McGettigan cracked about Kittredge's case. Instead, McGettigan said, Kittredge relied on a "blizzard of paper" and a paid expert witness to attack Fina.
It was straight out of Alice in Wonderland, McGettigan said: "Verdict first; trial later; evidence never."
In Kittredge's defense, she apparently believed that all she needed to prove her case was to presentthe disciplinary board with court transcripts that showed that Fina had clearly misled a grand jury judge about his intentions when he was trying to get the judge's permission to question Baldwin.
When Fina appeared before the grand jury on Oct. 22, 2012, he told Judge Barry Feudale that he wanted to call Cynthia Baldwin as a witness, but he claimed that he wouldn't get into any areas of questioning that would violate the attorney-client privilege.
Fina is accused of breaking Rule 3.10 of the Rules of Professional Conduct which states: "A public prosecutor or other government lawyer shall not, without prior judicial approval, subpoena an attorney to appear before a grand jury or other tribunal investigating criminal activity in circumstances where the prosecutor or other government lawyer seeks to compel the attorney/witness to provide evidence concerning a person who is or has been represented by the attorney/witness."
"We need not address the privilege issue," Fina told the judge, because "we are not going to ask questions about" the grand jury testimony of Spanier, Schultz and Curley, or any communication Baldwin may have had with her former clients.
As for violating the attorney-client privilege, that was a "risk" Fina told the judge that the prosecutor was willing to take. But under Rule 3.10, Kittredge said, rather than letting the prosecutor taking a risk of violating the privilege, the judge should have held the hearing and then made the decision as to whether Baldwin should testify.
Instead, the judge told Fina to proceed with the questioning of Baldwin under the assumption that "you're not going to get into any inquiry as to [Baldwin's] representation" of her former clients.
But on Oct. 26, 2012, when Fina questioned Baldwin in front of the grand jury, he "did elicit" what the disciplinary board described as "extensive . . . attorney-client privileged communications between Baldwin and Curley, Schultz, and Spanier" as well as "confidential information" pertaining to the three former clients.
Fina's questioning of Baldwin was "calculated," the disciplinary board's counsel wrote, to solicit damaging information that would attack the credibility of Baldwin's three former clients. In the petition, the disciplinary board cited 73 examples from the grand jury transcript where Fina elicited confidential testimony from Baldwin that violated the attorney-client privilege.
The actions of Fina and Baldwin in the grand jury were so egregious that it prompted the state Superior Court to throw out a total of eight charges of perjury, obstruction of justice and conspiracy against Schultz, Curley and Spanier.
But at the ethics board today, McGettigan said in order to prove her allegations against Fina, Kittredge should have produced Baldwin's three former clients to testify that the attorney-client privilege had indeed been broken.
"They lied to her," McGettigan said about how the three Penn State administrators allegedly dealt with Baldwin. Meanwhile, McGettigan said, Kittredge didn't have the guts to say it, but she was basically calling Baldwin a liar whens he claimed she advised the three Penn State officials that she represented the university, and not those officials personally.
Kittredge, McGettigan said, didn't prove any of the elements of her case. The subpoenas that were sent out to Spanier, Curley and Schultz were signed by other deputy attorney generals and approved by the grand jury judge. Fina's name wasn't on any of the subpoenas, McGettigan said.
Baldwin's clients, McGettigan said, gave up the attorney-client privilege when they lied to her about what they knew about two shower incidents from 1998 and 2002 involving Sandusky and young boys. McGettigan claimed that the PSU trio had conspired to keep quiet about Sandusky's activities, to protect the university. It was an accusation never proven in court, but that didn't stop McGettigan from going well beyond the scope of what the disciplinary board was there to figure out.
"They were dormant," McGettigan said about the Penn State officials, "but he [Sandusky] wasn't," McGettigan said. "He preyed upon children because of what they did."
The three officials lied to the "honorable" Baldwin, their employer and a grand jury, McGettigan said. He asked the disciplinary board to find Frank Fina innocent. He closed by saying that if Kittredge had any sense of honor, she would stand up and apologize for falsely accusing Fina of ethical violations.
Kittredge, who sat stone-faced during McGettigan's closing, did not take him up on his offer.
Earlier, when she gave her closing statement, Kittredge claimed that Fina had deliberately misled the grand jury judge and had deliberately and repeatedly violated the attorney-client privilege when he questioned Baldwin.
The hearing trequired by Rule 3.10 of the Rules of Professional Conduct was never held, Kittredge said. More proof of that, she said, was that attorneys for Spanier, Curley and Schultz never had a chance to appear before Judge Feudale, and argue why Baldwin should not have been allowed to testify against her former clients before the grand jury.
Instead, Kittredge said, Fina made the "self-serving declaration" that Penn State's lawyer had waived the attorney-client privilege on behalf of Penn State. Even though the university never waived the privilege when it came to prior communication between Baldwin and her clients.
In his defense before the ethics board, Fina's lawyers claimed that Baldwin's three former clients had waived the attorney-client privilege when they allegedly entered into a criminal conspiracy to lie to Baldwin and the grand jury about what they knew about Sandusky, allegations, of course, that were never proven in court.
However, according to Kittredge that defense was an "after-thought," by Fina, an issue never raised previously.
In order to invoke the crime-fraud exception, Kittredge said, Baldwin would have had to have been on the conspiracy, and she clearly wasn't. So the crime-fraud exception, she argued, didn't apply.
Instead, Kittredge said, Baldwin did the worst thing a lawyer could do by not only betraying her client, but also proceeding to testify against them.
Meanwhile, Kittredge said, all Fina offered in his defense were excuses. She urged the board to find him guilty.
Earlier in the day, former state Supreme Court Justice Castille testified as an expert witness on behalf of Fina. Castille claimed that the three former Penn State officials voluntarily gave up the attorney-client privilege when they allegedly lied to Baldwin.
"These three people conspired together to protect Penn State by hiding evidence," he said. "You can't lie to your lawyer and expect them to continue to be your lawyer."
About the disciplinary board's case against Fina, Castillo said, "They went overboard." The disciplinary board also overlooked the written opinions and rulings of two judges in the case who consistently backed Fina's actions, Castille testified. He called the case against Fina "a travesty of justice."
Castille, as did Fina's lawyers, also implied that the Superior Court decision that upbraided Fina for misconduct and blew out the most serious charges against the Penn State administrators should have been appealed to the state Supreme Court, where Castille said, "I would have reversed it."
It's not the duty of the state Superior Court to discipline lawyers, Castille argued; that role belonged to the "D Board," as Castille referred to it. Fina's lawyers claimed the decision not to appeal the state Superior Court ruling was an act of political retaliation against Fina, as orchestrated by then attorney-general Kathleen Kane.
Earlier in the hearing, Amy Zapp, a chief deputy attorney general, testified that she had prepared a lengthy appeal of the state Superior Court decision.
"I remember thinking that it was very wrong," Zapp said. But she testified that she subsequently found out through a press release that then AG Kane had declined to file Zapp's appeal.
Zapp said the state Superior Court ruling against Fina did not change her opinion of him.
"I have a high regard for his work," Zapp said.
After a lengthy examination of his own conscience, State Superior Court Judge Victor P. Stabile has concluded that he doesn't have a conflict of interest with former Penn State President Graham Spanier.
And so yesterday, the judge in a one-sentence order denied a petition by Spanier's lawyers for recusal.
In June, Judge Stabile was the author of a 2-1 Superior Court decision that upheld Spanier's conviction last year on one count of child endangerment in connection with the Jerry Sandusky sex abuse scandal.
Spanier's lawyers had filed the motion for recusal, saying that years before he was a judge, Stabile had testified in a civil case filed against Spanier and Penn State over the fate of the Dickinson School of Law. At the time, Stabile was a graduate of DSL and a member of its alumni association who was opposed to Spanier and Penn State's plan in 2003 to relocate the law school from Carlisle to State College.
In his order issued yesterday, Stabile stated that Spanier's application for the judge's recusal and request for a re-argument on Spanier's appeal before a new panel of state Superior Court judges or the entire court was "DENIED."
In an accompanying 23-page memorandum, the judge explained his decision, saying the case where he testified against Spanier and Penn State was "a completely unrelated matter" from a dozen years earlier.
Upon receipt of Spanier's recusal motion, the judge wrote, "I engaged in a conscientious determination of my ability to assess this appeal in an impartial manner, free of bias or interest in its outcome. I can state with clear conscience that I felt no compulsion of bias, partiality, or interest in the outcome of this case to prevent me from deciding this matter solely on its merits, regardless of the fact" that the case involved Spanier.
More than 20 years ago, the judge wrote, Penn State announced that "it would affiliate and then merge with DSL located in Carlisle." During a reception, the judge said, he "briefly met" Spanier, "simply to introduce myself as a member of the DSL community." It was the only interaction he ever had with Spanier, the judge wrote.
In 2003, when PSU proposed moving DSL to State College, Carlisle "had been the home of DSL for more than 170 years," the judge wrote. As a member of the General Alumni Association of Dickinson, the judge said, he was rightly concerned, but noted he was just of many people who opposed the proposed move of the law school.
"In summary, I was one person with the GAA who joined a cacophony of people, representatives, and organizations that expressed an interest in the future of DSL and opposition to its closure and relocation to State College," the judge wrote.
In his memorandum, the judge conceded that "an appearance of impropriety may itself be enough to warrant judicial recusal." But, he wrote, the party seeking recusal "bears the burden of producing evidence to establish bias, prejudice or unfairness which raises a substantial doubt" as to a judge's ability to "preside impartially."
And if a recusal motion is filed after a decision has been rendered, "the burden of proof is more exacting," the judge wrote. He quoted the state Supreme Court as saying that "one of the strengths of our system of justice is that once decisions are made by our tribunals, they are left undisturbed."
Continuing to quote the state Supreme Court, the judge wrote that the courts generally "are loathe to reopen the controversy for another airing, save for the greatest of need."
In their motion for recusal filed, Spanier's lawyers argue that Judge Stabile had allegedly attacked Spanier in an old email as an "emperor" in "new clothes."
"I generically referenced 'PSU' and nowhere criticized any individual by name," the judge wrote.
"Where a court has specific knowledge of a private matter or situation in which his or her impartiality may reasonably be questioned, it is his duty to disclose that information to the parties."
Judge Stabile, Spanier's lawyers argued, clearly failed to meet that standard.
In his memorandum, the judge wrote that Spanier's petition wasn't timely, and that Spanier's lawyers hadn't proved any bias. After examining his own conscience for evidence of bias, or any conflict, the judge wrote that he came up empty.
And so he denied the motion.
In his memorandum, the judge noted that the two judges who were on the panel that reviewed Spanier's appeal, Judge Carolyn H. Nichols who agreed with Stabile on denying Spanier's appeal, and Judge Lillian Harris Ransom, who wrote a dissent, "did not participate in the consideration or decision of this application," referring to the judge's order denying the motion for recusal.
Sam Silver, Spanier's lawyer, declined comment.
In Philadelphia Common Pleas Court, Penn State University was being sued by its own insurance carrier. The Pennsylvania Manufacturer's Association had taken issue with the large multimillion payouts the university was awarding to 36 young men like Victim No. 4, payments to date that have totaled $118 million.
“Has anybody from Penn State ever spoken to you?" the lawyer wanted to know.
Instead, here's what happened with Swisher-Houtz. On Dec. 4, 2012, lawyers Benjamin D. Andreozzi and Jeffrey Fritz, who did not respond to requests for comment, filed a three-and-a-half-page civil claim on behalf of the alleged victim. It was reviewed on behalf of Penn State by Barbara Ziv, a consulting forensic psychiatrist from Flourtown, PA, as well as law firm headed by Kenneth Feinberg of Washington, D.C.
When asked to specify the facts of his alleged abuse, "where it happened and the date on which it happened," Swisher-Houtz's lawyers wrote, "The instances of abuse were so frequent that Mr. Swisher-Houtz cannot be expected to list them here. In summary, Mr. Sandusky forced Mr. Swisher to engage in oral sex on countless occasions and attempted to penetrate his anus. See Sandusky trial transcript or grand jury reports related to Victim No. 4." The lawyers also submitted a report on the victim's behalf from a licensed psychologist.
It could have been a rougher road to settlement. In the case of Swisher-Houtz, there was stone-cold proof on tape that the cops had deliberately lied to him to elicit more details of alleged abuse. A suspect therapist had also used widely discredited memory-recovery therapy on Victim No. 4 to elicit testimony that a prominent memory expert stated in court had no credible scientific basis.
At the very least, a skillful interrogator might have succeeded in driving down the price of a settlement. But according to Swisher-Houtz, nobody from the university ever bothered to ask him anything. Penn State just wrote out another big check in its quest to purchase an atonement from scandal.
The Conductor on the Gravy Train
The university trustee who oversaw victim settlements isn't talking, but we have some insight into his mindset thanks to a brief May 17, 2017 recorded interview between a would-be author and Ira Lubert. The Philadelphia real estate guru is the Penn State trustee who oversaw the board’s legal subcommittee, which approved the first 26 multi-million dollar settlement awarded to the alleged victims of Jerry Sandusky. Those 26 claims were subsequently ratified en masse by the entire board, after Lubert assured his fellow trustees that the claimants had been thoroughly vetted.
In a remarkably candid interview of just three and a half minutes, obtained by reporter John Ziegler, Lubert talked about the alleged victims of Sandusky, none of whom had attended Penn State. Lubert colorfully described the claimants as being lined up "at the trough" waiting on the “gravy train.”
A gravy train on which Lubert was the conductor.
Lubert blamed the university's plight on poor judgment exercised by Penn State's top officials. He was presumably talking about former university President Graham Spanier, Vice President Gary Schultz, Athletic Director Tim Curley, and Coach Joe Paterno.
In the taped interview, Lubert, who did not respond to several requests for comment, was generous in his praise of Penn State's top officials, before burying them.
"I think they did amazing things for the university," Lubert said. "But all four used poor judgment and poor leadership. And as a result of that, they couldn't continue to lead our university."
Lubert singled out Spanier for not being proactive in his discussions with other administrators about Sandusky's habit of showering with young boys, as evidenced by two separate incidents in 1998 and 2001. According to Lubert, Spanier supposedly decided, "I'm not gonna call human services or research any further whether something happened or didn't happen" when it came to Sandusky and the boys in the shower.
"And then it cost us $200 million to settle this. And he stays on as president," Lubert huffed about Spanier. "That can't happen."
Lubert turned his attention to the question of whether Penn State's top officials committed any crimes.
"I was surprised when they pled guilty," Lubert said, presumably about Schultz and Curley. "I don't think they broke the law. I think they used very poor judgment. And, as I said to you, very poor leadership . . . That doesn't make them bad people. It just means you can't work at Penn State or any other university or any company when you demonstrate that failure in leadership."
"I fired him for that reason," Lubert said, presumably talking about Spanier. "Not because he broke the law but because he used bad judgment."
Lubert talked about "all these theories" and various "snippet[s] of information" out there about the Sandusky case, and then returned to his bottom line.
"But at the end of the day, we have five people," Lubert said, presumably throwing Sandusky into the mix, along with Spanier, Schultz, Curley and Paterno.
"Two were convicted, two pled guilty and one said in hindsight, I wished I'd done more," Lubert said. He was talking in private to a would-be author who was a former Second Mile kid himself, somebody who believed that Sandusky was innocent, and that the young men who accused him of sex abuse were lying.
But Lubert wasn't buying it.
"To say you think nothing happened and that Jerry was totally innocent, I just have trouble with all of the other facts surrounding why all that happened to all those five guys," Lubert said, returning to the top Penn State officials caught up in the scandal.
Lubert repeated his mantra: Sandusky and Spanier got convicted, Curley and Schultz pled guilty, and Paterno "said when he was alive, in hindsight I'd wish I'd done more."
About the claimants, Lubert stated categorically, "They're not all victims. There's some that were on the gravy train. There's some [claims] that we settled for $100,000 that would have cost us more to litigate. But there were some real victims. . . [some who] tried to commit suicide. I was in a position to see it."
The Master of Disasters
To initiate their claims of abuse, lawyers for the alleged victims typically filed a "confidential intake questionnaire" that marked the official start of the "Feinberg & Rozen Claims Resolution Process." In a couple of cases, the victims also filed civil lawsuits where university officials and trustees were deposed.
To get paid, an alleged victim had to be a verified member of the Second Mile, Sandusky's charity for at-risk kids. It also helped to have testified against Sandusky at his criminal trial in 2012, as did eight of the 36 alleged victims, a trial where Sandusky was found guilty of 45 counts of abuse.
For an alleged victim to get paid, it also helped to have reports from licensed psychologists, and medical records submitted for review. To get paid, a claimant had to have his paperwork reviewed by Dr. Ziv, and receive a favorable recommendation to settle the case from the law firm of Feinberg Rozen LLP of Washington D.C.
Kenneth Feinberg, dubbed "The Master of Disasters," is the lawyer they called in to approve mass billion-dollar payouts to the victims of 9/11, the BP oil spill, the Virginia Tech shootings, and the Boston Marathon bombing. Besides presiding over terrorist attacks and natural disasters, Feinberg has overseen large billon dollar settlements in class action suits for pain and suffering caused by Agent Orange and the Dalkon Shield. In big disaster cases, Feinberg takes a global approach to settlements, rather than duking it out on one claim after another in the civil courts.
"In certain very limited types of mass disasters, there's gotta be a better way than one-by-one courts," Feinberg told The Observer in 2016. "These programs . . . do that. And they're very successful."
It was also successful for Feinberg Rozen, which, as of January 2017, had been paid $1,484,094 by Penn State, after the law firm approved the first 28 settlements in the Sandusky case.
Feinberg, responding to an email requesting comment, said there wasn't much light he could shed on the process of vetting claims at Penn State.
"The mediation process was highly confidential and I am not at liberty to answer any questions you may pose concerning the value of the claims or other related details," Feinberg wrote in an email. He referred questions to Joseph O'Dea, the lawyer who represented Penn State in the claim mediation process. O'Dea declined comment, referring questions to Lawrence Lokman, a university spokesperson.
"We have no comment for you," Lokman wrote in an email. "The university's perspective on the settlements, and Ken Feinberg's Op-ed describing the process are a matter of public record."
In that 2016 Op-ed piece, Feinberg wrote, "The [claim mediation] process was thorough, fair, respectful and characterized by full arms-length debate in each case." He described the resulting settlements as "a remarkable achievement given the high-profile nature of the cases."
"Preventing years of expensive, protracted, and uncertain litigation will save Penn State millions of dollars, while sparing the victims who brought their cases forward the agony of an extended legal battle," Feinberg wrote. "I believe the Penn State mediation is a model of how such a dispute resolution process should work."
Not everyone agreed with Feinberg's rosy assessment of the claim mediation process. In 2013, the payouts prompted the university’s insurance carrier, the Pennsylvania Manufacturers Association Insurance Company (PMA), to sue Penn State and the various “John Doe” claimants. The lawsuit ended three years later in a confidential settlement that lawyers in the case say they are prohibited from discussing.
“It appears as though Penn State made little effort, if any, to verify the credibility of the claims of the individuals,” Anderson wrote on October 5, 2015. In his report, Anderson decried “the absence of documentation” in the claims, saying in many cases there was “no signed affidavit, statement or other means of personal verification of the information which I reviewed."
The lawyer suggested that “potential punitive damages . . . factored into Penn State’s evaluations,” along with “a concern about publicity and a desire to resolve the matters very quickly.”
The Catholic Comparison
The average settlement at Penn State was $3.3 million, more than double the highest average settlements paid out to alleged victims of sex abuse in the Catholic clergy scandals, such as in:
-- Boston, where the church in 2003 paid $85 million to 552 alleged victims, an average settlement of $153,985.
-- Los Angeles, where the church in 2006 paid $60 million to 45 alleged victims, an average of $1.3 million.
-- Los Angeles, where the church in 2007 paid $660 million to 508 alleged victims, an average of $1.3 million.
-- San Diego, where the church in 2007 paid $198 million to 144 alleged victims, an average of $1.4 million.
Throwing Gasoline on a Fire
Gary Langsdale, the university’s risk officer, was deposed in the insurance case on May 30, 2014. At the deposition, Engelmyer, the insurance carrier’s lawyer, asked Langsdale if he had any concerns about the impact the Freeh Report would have on claims of abuse.
“The report seemed to throw gasoline on a fire,” Langsdale replied.
"Tell me what steps Penn State took to confirm that the claimants that they were paying are, in fact credible and were telling true stories," the lawyer asked.
"I read through the material that was provided by the victim's attorney, considered it in context with what we were told by Dr. [Barbara] Ziv was Mr. Sandusky's pattern of abuse, listened to Feinberg and Rozen on the subject, listened to Dr. Ziv on the subject," Langsdale testified.
The lawyer asked Langsdale if he had any concerns that Dr. Ziv, the psychologist hired by the university as an expert to evaluate claims, “did not interview any of the first 26 or so victims who received payments from Penn State?”
"Why not," Engelmyer asked.
"Because I thought the process is robust enough to give us a good picture of the claims," Langsdale said.
Dr. Ziv could not be reached for comment. She was a prominent witness at the Bill Cosby rape trial, where she testified about common "rape myths" regarding the behavior of victims of sex abuse. One of those myths, Dr. Ziv told the jury, was that victims lie.
No more than seven percent of sex abuse claims are false, Dr. Ziv told the jury. She added that the actual percentage of false claims could be as low as two percent.
Dr. Ziv was clearly a believer in the overall veracity of alleged victims of sexual abuse, so it makes sense why she wouldn't have to personally interview alleged victims to certify their accounts as true. University officials, however, subsequently decided to change their hands-off approach to claimants, when it came to having a psychiatrist review those claims.
In 2015, the university began hiring psychiatrists to examine the claimants, beginning with Skyler Coover, No. 29 on the list, who was paid $7 million. The exams didn't seem to lower the price of settlements. Besides Coover, six more claimants were examined by university psychiatrists, and all seven of those victims collected a total of $27.8 million, or $3.97 million each.
In contrast to Dr. Ziv's faith in the veracity of alleged victims of abuse, a judge recently questioned the credibility of Glenn Neff, an alleged victim of Sandusky's who was attempting to gain immediate access to the confidential settlement of $7 million that he received last year from Penn State.
According to the Chester County Daily Local News, on July 17th, Chester County Judge William P. Mahon "angrily dismissed" a request to transfer assets from Neff's multimillion-dollar settlement that was sought by a Delaware-based financial firm. The newspaper did not name Neff as a victim, because of a typical media policy of self-censorship when it comes to alleged victims of sex abuse, but Neff's name was printed on legal documents in the case.
According to the newspaper, the Delaware firm sought court approval of a plan to convert $2.99 million from Neff's 2017 settlement into $850,000 in cash. In court, Neff testified that he needed the money to bolster his tree-trimming business and his wife wanted to expand a beauty salon.
But Judge Mahon said the proposed settlement, the third in the case, was "riddled with sketchy assertions about [Neff's] financial well-being that were contradicted by statements" Neff made in court.
"I am beginning to wonder what the heck is going on," the judge said, adding "these petitions are completely unreliable."
"This is abysmal," the judge said, before declaring, "Petition dismissed." The judge compared the behavior of the many firms seeking to gain access to Neff's settlement by offering immediate cash to "sharks with blood in the water."
In his claim, Neff alleged that he was sexually abused by Sandusky "on multiple dates between January 2004 and May 2005," including oral and anal rapes, but didn't tell anybody about it until 2016.
As he left the hearing, according to the story filed by reporter Michael Rellahan, Neff refused to answer a reporter's questions, and Neff's wife "shouted before making an obscene gesture while boarding an elevator."
As part of their concerted effort to turn the page on the Sandusky scandal, Penn State's board of trustees decided not to publicly contest any of the findings of the Freeh Report. Even though behind closed doors, some trustees were highly critical of the work done by the former FBI director.
In response to questions from Engelmeyer, Peetz criticized Freeh for an "overreach" when he accused Penn State officials of concealing Sandusky's conduct, and having a "striking lack of apathy" for victims.
"His spin on the situation," was how Peetz characterized Freeh's criticisms. When the university hired Freeh, Peetz testified, she expected "nothing but the facts."
Peetz also stated that she had no idea until she read the Freeh Report that the NCAA was relying on it to punish the university.
"Were you aware that they [the NCAA] were using the Freeh Report as a factual basis for the imposition . . . of sanctions?" Engelmyer asked.
"No," Peetz said.
"When did you first find out?" the lawyer asked. "Was it when you read it?"
"Yes," she said.
But, according to Peetz, rather than take issue with Freeh, a majority of trustees decided to roll over.
She added, "There's a group of trustees who would like to do that."
"It just doesn't make sense."
While Penn State took a hands-off approach to investigating claims of abuse, the Archdiocese of Philadelphia had a practice of hiring private detectives to investigate claims.
Jack Rossiter, a former FBI agent of 30 years, investigated more than 150 cases of alleged sex abuse as a private detective employed by the Catholic Archdiocese of Philadelphia between 2003 and 2007.
In a situation involving national publicity, like the Jerry Sandusky case, Rossiter said, you'd have to be on guard for criminals and drug addicts coming forward to seek a pay day.
"With national headlines and all these people lining up, you'd have to be more skeptical" of the claims, Rossiter said.
"Obviously, you have to do a detailed interview" with each alleged victim, he said, asking questions such as, "Who did you tell, when did you tell them? And who can corroborate your story?"
"That's what you do, you investigate," Rossiter said. "The key," he said, is to find corroboration for the victim's story, to see if their stories hold up.
"A good interviewer could have broken somebody who was fabricating something," Rossiter said. Especially if you drag them through all the details of what the Penn State locker room looked like, to determine "whether they were really in the shower."
The surest way to spot a fake, Rossiter said, is to come at their story from the opposite point of view.
In investigating cases for the archdiocese, Rossiter said, "I have to go into it believing the victim is telling the truth." If the detective merely tried to help the church cover up abuse, "I'm of no value to anyone," Rossiter said.
So he always gave the victim "a clean slate," the benefit of the doubt, Rossiter said. Then, the former FBI agent set out to try and corroborate the victims' stories. In seeking proof, Rossiter went as far as to polygraph priests accused of abuse.
As far as the Penn State case was concerned, Rossiter was surprised to hear that apparently not one of the 36 alleged victims supposedly told anyone about the attacks when they allegedly occurred -- a period that spanned nearly four decades.
If a pedophile was running loose for that long, "You would think someone would pick it up," Rossiter said. "Either at school or the parents or a close friend."
Rossiter was also troubled by the use of recovered memories by many alleged victims of Sandusky.
"I always have my doubts about that," he said. The radically changing stories of many of the victims was another source of concern for an investigator playing defense on claims. Rossiter said he couldn't understand why the university didn't do more to investigate claims of abuse.
It sounds like "they just got a pool of money together and said let's buy everybody off and get this damn thing behind us," Rossiter said. "It just doesn't make sense."
But when Andreozzi first came to see him on April 5, 2011, Swisher-Houtz wasn’t cooperative, and didn’t say anything had happened to him. Two days later, when a state police corporal knocked on his door, Swisher-Houtz said he wanted to talk to his lawyer before he talked to police.
During the first 50 minutes of questioning, as recounted in trial transcripts, Swisher-Houtz told the troopers about wrestling matches with Sandusky, and how Sandusky would pin him to the floor with his genitals allegedly stuck in the boy’s face. Then, Sandusky would allegedly kiss and lick the inside of the boy’s legs, Swisher-Houtz claimed. That prompted Trooper Rossman to ask if Sandusky would kiss or lick his testicles.
Cops Caught Lying
“First, it was, 'Yeah, he would rub my shoulders;' then it took repetition and repetition and finally, we got to the point where he [Fisher] would tell us what happened,” Leiter said. The troopers talked about how they were sure Swisher-Houtz was another rape victim, and they discussed how to get more details out of him.
By the time Sandusky went on trial on June 11, 2012, Swisher-Houtz was the prosecution’s leadoff witness. He testified that for years Sandusky had inserted his penis into the boy’s mouth two or three times a week while they showered, sometimes with Sandusky ejaculating. It happened “40 times at least,” Swisher-Houtz told the jury.
Sandusky also attempted to anally rape him in the shower, the witness claimed, but that he pushed Sandusky off “with all my might” and got away.
Author Mark Pendergrast wrote a book about the Sandusky case. He's skeptical about Swisher-Houtz’s claims of repressed memories of abuse, as well as similar claims from three of the eight other alleged victims who testified against Sandusky at trial.
“All of the recovered memories in the Sandusky case are most certainly false,” said Pendergrast, who wrote The Most Hated Man In America; Jerry Sandusky and the Rush to Judgment, a book that's been excerpted on Big Trial.
“They shouldn’t even be called memories," Pendergrast said about so-called repressed memories of abuse; "they’re confabulations.”
In Silent No More, a 2012 book Gillum co-authored with Fisher and his mother, Gillum wrote that he saw his job as “peeling back the layers of the onion” in Fisher’s mind to uncover hidden memories of abuse.
“Look, I know that something terrible happened to you,” Gillum told Fisher at the first session. And then Gillum would guess how Sandusky had abused Fisher. The patient simply had to say “yes,” or just nod his head to confirm the allegation that Sandusky had committed a sex crime.
“Mike just kept saying that Jerry was the exact profile of a predator,” Fisher wrote in Silent No More. “When it finally sank in, I felt angry.”
When asked if Sandusky had forced him to engage in oral sex, Fisher denied it. Gillum then volunteered to testify on his client’s behalf, on the grounds that the teenager was too emotionally fragile to continue. But that didn't happen. When a second grand jury convened to investigate Sandusky, Fisher testified by reading a written statement about his alleged abuse.
In 2016, Gillum also began counseling Glenn Neff, another alleged victim, who, according to Neff's claim of abuse, "will be seen in psychotherapy with Michael Gillum, M.A., for the foreseeable future."
“Everything we know about the science of memory shows that the things that we remember the best are the most traumatic events that happen to us." The problem people have with traumatic memories, Pendergrast said, is they can’t forget them.
“That’s what PTSD is,” Pendergrast said, referring to Post Traumatic Stress Disorder. “There’s no convincing evidence whatsoever that people can forget years of traumatic events.”
About the alleged victims, Kelly said, “It was incredibly difficult for some of them to unearth long-buried memories of the shocking abuse they suffered at the hands of this defendant.”
No Credible Scientific Support
Another critic of recovered memory therapy is Dr. Elizabeth Loftus, one of the world’s foremost experts on the malleability of human memory. Loftus, who testified at a hearing on behalf of Sandusky’s unsuccessful bid for a new trial, has given lectures to the Secret Service and FBI; she also has a contract to work for the CIA
“You can plant entirely false memories in the minds of people for events that never happened,” she explained. And once those false memories are planted, she told the judge, people will relate those memories as if they were true, “complete with high levels of detail and emotion.”
On November 29, 2011, Rittmeyer called the Pennsylvania state attorney general’s sex abuse hotline; he subsequently became Victim “No. 10” in the Sandusky case.
“Jerry Sandusky never owned a silver convertible,” said Dick Anderson, a retired coach who was a colleague of Sandusky’s for decades on the Penn State coaching staff, and has known Sandusky since 1962, when they were Nittany Lions teammates. “He drove Fords or Hondas.”
Assistant coaches drove cars donated by local dealers, Brooks said. That’s because they had to pick up star high school recruits at airports, as well as their families. The cars the assistant coaches drove, Brooks said, needed to have four doors and a big trunk for luggage.
The Grooming Process
According to records of the claims, Zachary Konstas, the 11 year-old boy who took a shower with Sandusky back in 1998, was of the few claimants who was actually deposed. On June 18, 2015, Konstas was videotaped during a deposition he gave in a civil case, John Doe 6 v. Penn State, The Second Mile and Gerald Sandusky.
It was Konstas's mother who was the first person to complain to authorities after she found out that her son had taken a shower with Sandusky. When questioned by police, Sandusky admitted that he had given the boy a bear-hug in the shower, and lifted him up to the shower head so he could wash shampoo out of his hair, but he denied any sexual abuse, as did Konstas.
Various authorities came to the same conclusion. After an investigation by the Penn State police, the Centre County District Attorney and a psychologist and investigator on behalf of the county’s Children and Youth Services, no evidence of sex abuse was found.
One of those rejected claims was filed by by an inmate. Shamont Sapp, 49, acting as his own lawyer claimed that from 1978 to 1984, Sandusky took him along on trips where he met with the commissioner of the Big 8 conference in St. Louis, attended Celtics games in Boston, and visited the home of the late former PSU President John Oswald.
Sapp also claimed that Sandusky frequently paid him for sex with Sandusky and other men, including former Centre County D.A. Ray Gricar, who disappeared in 2005 and was subsequently declared dead.
Sapp, who in his claim explained that he didn't testify at Sandusky's trial because he "was in prison in Oklahoma at the time," pled guilty to assault in 1999, and pled guilty to theft by deception in 2015.
In a letter to a judge, Sapp made some more allegations, claiming that he spoke to PSU President Spanier on the phone in 2011 and told him he had been sexually assaulted by Sandusky, and that Spanier called him a liar. In the same letter, Sapp claimed that "Joe Paterno caught us once in Sandusky's office naked from the waist down."
But not even Penn State was willing to grant a settlement from a guy who was filing his claim from jail, because they rejected Sapp's claim.
"It Just Doesn't Make Common Sense"
Retired Detective Joe Walsh testified and wrote in a 12-page affidavit that he repeatedly caught Gallagher in one lie after another, and that Gallagher even admitted to the detective that he “just made up stuff and told them anything.”
But at least Gallagher had to work for his money. In his civil case against the Archdiocese of Philadelphia, Gallagher was examined extensively by two forensic psychiatrists, who found him non-credible. Gallagher also had to submit to two full days of depositions, where he handled all the factual contradictions in his many changing stories of abuse by claiming he didn't remember more than 130 times.
Gallagher's lawyer also claims that Gallagher passed a polygraph test. But when asked for proof, the lawyer has repeatedly declined to share the results of the test, which is not admissible in court.
A problem for the archdiocese, however, was that Gallagher's civil case was slated to go to trial the month before Pope Francis was scheduled to visit Philadelphia for a historic visit in September 2015. Church officials, who had been skeptical of Gallagher's claims, subsequently decided to settle the case and pay the former altar boy $5 million.
Here, the story takes a couple of incredulous turns.
Even more incredibly, Quinn claimed that the next day, he tracked down legendary Coach Paterno in a hallway outside the coach’s office and supposedly confronted Paterno about what Sandusky had allegedly done to him.
According to Quinn's claim, Paterno allegedly replied, “I don’t want to hear about any of that kind of stuff, I have a football season to worry about.”
When he first heard the details of Quinn’s allegations, Franco Harris, a Penn State star from the 1970s, and an NFL Hall-of-Famer, told reporter John Ziegler that Quinn’s story about allegedly tracking down and confronting Paterno was “unbelievable . . . It just doesn’t make common sense.”
Quinn's lawyer, Slade McLaughlin, who also represented Glenn Neff, continues to defend his clients.
"All of my Penn State clients were solid people, and told the truth as far I know," McLaughlin wrote in an email. "If I had reason to disbelieve a client's story, I either rejected the case or had the client undergo a lie detector test. Not that facts like that matter to a so-called journalist like you. . . . You are a low life, bottom of the pit scumbag . . ."