WEDNESDAY, MAY 13, 2020
Sandusky Seeks New Trial Based On Fina-Freeh Collusion, Leaks
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| Kathleen McChesney |
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By Ralph Cipriano
for BigTrial.net
Lawyers for Jerry Sandusky have filed a motion for a new trial based on newly discovered evidence that documents rampant collusion between the criminal investigation of the Penn State sex scandal conducted by the state attorney general's office and the supposedly independent $8 million civil investigation of PSU presided over by former FBI Director Louis Freeh.
Throughout the Freeh investigation, which was the legal basis for the NCAA's unprecedented sanctions imposed against Penn State that included a record $60 million fine, there were "substantial communications" between the AG's office and Freeh's investigators, the motion states. Those communications included a steady stream of leaks to Freeh's investigators emanating from the supposedly secret grand jury probe overseen by former Deputy Attorney General Frank Fina, a noted
bad actor in this case.
The collusion and leaks between the AG's office and the Freeh Group are documented in three sets of confidential records filed under seal by Sandusky's lawyers; all those records, however, were previously disclosed on Big Trial. The records include a private
79-page diary kept by former FBI Special Agent Kathleen McChesney, the co-leader of the Freeh investigation, in 2011 and 2012; a seven-page
"Executive Summary of Findings" of a 2017 confidential review of the Freeh Report conducted by seven Penn State trustees; and a 25-page synopsis of the
evidence gleaned by the trustees in 2017 after a review of the so-called "source materials" for the Freeh Report still under judicial seal.
In documents filed Saturday in state Superior Court, Sandusky's lawyers argued in their motion for a new trial that the collusion that existed between the AG and Freeh amounted to a "de facto joint investigation" that not only violated state law regarding grand jury secrecy, but also tainted one of the jurors who convicted Sandusky.
Juror 0990
According to the motion for a new trial, "Juror 0990" was a Penn State employee who was interviewed by Freeh's investigators before she was sworn in as a juror at the Sandusky trial.
"At no time during this colloquy, or any other time, did the prosecution disclose that it was working in collaboration with the Freeh Group which interviewed the witness," lawyers Philip Lauer and Alexander Lindsay Jr. argue in the 31-page motion filed on Sandusky's behalf.
At jury selection, Joseph Amendola, Sandusky's trial lawyer, had no knowledge "about the degree of collaboration" ongoing between the AG's office and Freeh investigators, Sandusky's appeal lawyers wrote. Had he known, Amendola stated in an affidavit quoted in the motion for a new trial, Amendola would have "very likely stricken her for cause, or at a minimum, used one of my preemptory strikes to remove her as a potential juror."
Had he known the AG and Freeh Group were working in tandem, Amendola stated in an affidavit, he would have also quizzed all other potential jurors about any interaction with investigators from the Freeh Group. And he "would have sought discovery of all materials and statements obtained by the Freeh Group regarding the Penn State/Sandusky investigation."
Coercive Tactics By Freeh's Investigators
In their motion for a new trial, Sandusky's lawyers describe the hardball tactics employed by Freeh's investigators as detailed in a seven-page June 29, 2018 report from the Penn State trustees who investigated the so-called source materials for the Freeh Report. In their report, seven trustees state that "multiple individuals have approached us privately to tell us they were subjected to coercive tactics when interviewed by Freeh's investigators."
"Investigators shouted, were insulting, and demanded that interviewees give them specific information," the seven trustees wrote, such as, "Tell me that Joe Paterno knew Sandusky was abusing kids!"
"Some interviewees were told they could not leave until they provided what the interviewers wanted, even when interviewees protested that this would require them to lie," the trustees wrote. Some individuals were called back by Freeh's investigators for multiple interviews, where the same questions were repeated, and the interviewees were told they were being "uncooperative for refusing to untruthfully agree with interviewers' statements."
"Those employed by university were told their cooperation was a requirement for keeping their jobs," the trustees wrote. And that being labeled "uncooperative" by Freeh's investigators was "perceived as a threat against their employment."
Indeed, the trustees wrote, "one individual indicated that he was fired for failing to tell the interviewers what they wanted to hear."
"Coaches are scared of their jobs," the trustees quoted another interviewee as saying.
"Presumably," Sandusky's lawyers wrote, as a Penn State employee, "Juror number 0990 was subject to this type of coercion."
Sandusky's Lawyers Seek To Depose Freeh, Fina
In their motion for a new trial, Sandusky's lawyers ask the Superior Court for permission to conduct an evidentiary hearing so that Sandusky's lawyers could learn the depth of the collaboration that existed between the AG's office and Freeh's investigators.
At that evidentiary hearing, Sandusky's lawyers wrote, they would seek to depose Freeh, McChesney, and other Freeh investigators that include Gregory Paw and Omar McNeil. Sandusky's lawyers also seek to interview former deputy attorney generals Frank Fina, Jonelle Eshbach and Joseph McGettigan, as well as former AG agents Anthony Sassano and Randy Feathers.
According to the motion, the communications on the part of the AG's office "appear to have included information, and even testimony, from the special investigating grand jury then in session, which communications would be in direct violation of grand jury secrecy rules, and would subject the participants in the Attorney General's office to sanctions."
Sandusky's lawyers are also seeking disclosure of all of the so-called source materials for the Freeh Report. Those records, as previously mentioned, are still under seal in the ongoing cover-up of the scandal behind the Penn State scandal, as led by the stonewalling majority on the Penn State board of trustees.
Sandusky, 75, was re-sentenced on appeal last November to serve 30 to 60 years in prison for sexually abusing ten boys, the same sentence he originally got after he was convicted in 2012 on 45 counts of sex abuse.
According to a Dec. 2, 2011, letter of engagement, Freeh was formally hired by Penn State to "perform an independent, full and complete investigation of the recently publicized allegation of sexual abuse."
But instead of an independent investigation, the confidential documents show that the AG's office was hopelessly intertwined with the AG's criminal investigation, tainting both probes. According to the confidential documents, the AG's office was supplying secret grand jury transcripts and information to Freeh's investigators, along with trading information on common witnesses and collaborating on strategy.
The records also show that former deputy Attorney General Fina was in effect directing the Freeh Group's investigation by telling Freeh's investigators which witnesses they could interview, and when. In return, Freeh's investigators shared what they were learning during their investigation with Fina. And when they were done, Freeh's investigators showed the deputy AG their report before it was made public.
The Pennsylvania Railroad
In their motion for a new trial, Sandusky's lawyers argue that their client's constitutional rights were trampled under the mad rush to save Penn State's storied football program from the NCAA's threat to impose the "death penalty" on the Nittany Lions.
To save Penn State football, the NCAA and Penn State's trustees had worked out a consent decree with voluntary sanctions. The consent decree, which called for the university's unconditional surrender, required that two things happen by the opening of the 2012 college football season to save Penn State football: Jerry Sandusky had to be convicted and the Freeh Report needed to be released.
Sandusky was indicted by a grand jury on Nov. 5, 2011, the details of which were leaked to reporter Sara Ganim of the Patriot-News of Harrisburg.
On Nov. 21, 2011, Penn Stated agreed to hire Freeh.
The railroad was running right on schedule. And Judge John Cleland, who presided over Sandusky's trial, demonstrated time and time again that he was willing to sacrifice Sandusky's constitutional rights to keep the trains running on time.
On Dec. 12, 2011, an off-the-record meeting was held at the Hilton Garden Inn at State College, attended by the trial judge, John Cleland, the prosecutors, the defense lawyers, and a district magistrate judge. At the off-the-record hotel meeting, Sandusky's lawyers agreed to waive a preliminary hearing where they would have had their only pre-trial chance to question the eight alleged victims who would testify at trial against Sandusky.
For any defense lawyer, this unusual conference led to a decision that was akin to slitting your own throat. But the defense lawyers were completely overwhelmed by the task of defending their client against ten different accusers, while confined to a blitzkrieg trial schedule.
On Feb. 29, 2012, Amendola sought a two-month delay for the trial that was denied by Judge Cleland.
On the eve of the Sandusky trial, Amendola and his co-counsel, Karl Rominger, made a motion to withdraw as Sandusky's lawyers because, as Amendola told the judge, "We are not prepared to go to trial at this time."
The motion was denied.
In an affidavit, Amendola stated that "no attorney could have effectively represented Mr. Sandusky" given the "time constraints" imposed by Judge Cleland. Amendola stated that in the days and weeks before the Sandusky trial, he was hit with "more than 12,000 pages of discovery."
Those time constraints, Amendola stated, kept two expert forensic psychologists from participating in Sandusky's defense, which would have included reviewing the discovery in the case.
But under Judge Cleland, the Pennsylvania Railroad that Jerry Sandusky was riding on had to stay on schedule. And everybody knew it, including the prosecutors in the AG's office, as well as Freeh's investigators.
In the McChesney diary, on May 10, 2012, she noted in a conference call with Gregory Paw and Omar McNeil, two of Freeh's investigators, that Paw is going to talk to Fina, and that the "judge [is] holding firm on date of trial."
In his affidavit, Amendola, Sandusky's trial lawyer, states that McChesney didn't receive this information from him.
"An obvious question arises as to whether or not the trial judge was communicating with a member of the Freeh Group, attorneys for the attorney general's office, or anyone else concerning the trial date," Sandusky's appeal lawyers wrote.
In their motion for a new trial, Sandusky's lawyers seek to question Judge Cleland at an evidentiary hearing "to determine whether, and to what extent, collusion between the office of the attorney general, the Freeh investigation and the NCAA had an impact on the trial."
And "whether, as a result, defendant's right to a fair trial, and the effective assistance of his counsel, were negatively affected or compromised."
Meanwhile, the trains were running on time.
On June 22, 2012, Sandusky was found guilty.
On July 12, 2012, the Freeh report was issued.
On July 23, 2012, NCAA President Mark Emmert and PSU President Rodney Erickson signed a consent decree that imposed sanctions on PSU football program.
Less than two weeks later, on Aug. 6, 2012, the Penn State football team, under new coach Bill O'Brien, gathered at the practice field at University Park for the official start of training camp.
On Sept. 1, l2012, the Nittany Lions played Ohio University at Beaver Stadium in the season opener, lost 24-14, en route to a 8-4 season.
So Penn State saved its football program at the expense of Jerry Sandusky's constitutional rights.
Frank Fina: Leaker, Bad Actor
In their motion for a new trial, Sandusky's lawyers cite a history of leaks on grand jury investigations that Fina was the lead prosecutor on.
It began with a partial grand jury transcript in the bonus gate investigation that was leaked to the Pittsburgh Post-Gazette in 209.
Next, the indictment of Sandusky was leaked to Sara Ganim in 2011.
Finally, the names of four state legislators who allegedly took bribes from Tyron Ali during an undercover operation -- and the amount of money and gifts that they took -- was leaked to The Philadelphia Inquirer in 2014.
According to Sandusky's lawyers, "this form of prosecutorial misconduct" -- leaking -- had become "entrenched and flagrant" in the AG's office. Especially when Frank Fina was in charge of a grand jury investigation.
Fina has previously been disciplined for his overzealous and unprincipled actions in the Penn State investigation.
In February, the state Supreme Court in a
5-1 decision suspended Fina's law license for a year and a day after the state's office of disciplinary counsel found that Fina had improperly obtained grand jury testimony against three former Penn State officials from their own lawyer.
Fina had threatened to indict former Penn State General Counsel Cynthia Baldwin, unless she became a cooperator in the grand jury against her own clients. To pull that off, the disciplinary board found, Fina had to deceive a grand jury judge about his true intentions when he interviewed Baldwin before the grand jury. And he had to browbeat Baldwin to the point where she was willing to betray the attorney-client privilege by testifying against her clients.
For her misconduct in the grand jury investigation of Penn State, the state Supreme Court gave Baldwin, a former state Supreme Court justice, a public reprimand.
McChesney's Diary
McChesney's diary is replete with constant, ongoing communication between Freeh's investigators and the AG's office while bptj investigations were up and running.
For example, in her diary McChesney makes reference to a 1998 police report that the Freeh team should not have had access to. The report was an investigation into the first incident involving Sandusky showering with a child, but the investigation had cleared Sandusky of any wrongdoing.
In her diary, McChesney doesn't mention how the Freeh Group obtained that police report, but three lines later, McChesney wrote: "Records - IT: Team working with Atty general, will receive in stages."
McChesney's diary portrayed Fina as not only leaking grand jury secrets to the Freeh Group, but also being actively involved in directing the Freeh Group's investigation, to the point of saying if and when they could interview certain witnesses.
McChesney recorded that the Freeh Group was going to notify Fina that they wanted to interview Ronald Schreffler, the investigator from Penn State Police who probed the 1998 shower incident. After he was notified, McChesney wrote, "Fina approved interview with Schreffler."
According to McChesney, members of the Freeh Group "don't want to interfere with their investigations," and that she and her colleagues were being "extremely cautious & running certain interviews by them."
McChesney wrote that the Freeh Group even "asked [Deputy Attorney General Frank] Fina to authorize some interviews." And that the AG's office "asked us to stay away from some people, ex janitors, but can interview" people from the Second Mile, Sandusky's charity.
In her diary, McChesney speculated about the need to have somebody "handle, organize, channel data" from the attorney general's office. GP, she wrote, presumably, Greg Paw, discussed "Piggyback on AG investigation re: docs."
In her diary, McChesney is also extremely knowledgable about what the AG was up to during its supposedly secret grand jury investigation of Penn State. She described the "AG's strategies: may go to new coach to read riot act to [Penn State Associate Athletic Director Fran] Ganter et al."
On March 7, 2012, McChesney wrote that the Freeh Group continued to be in "close communications with AG and USA," as in the U. S. Attorney.
On March 30, 2012, Greg Paw related to McChesney what he learned during a call with Frank Fina. Fina, according to Paw, was "relooking at [Penn State President Graham] Spanier," and that Fina was "not happy with University & cooperation but happy to have 2001 email."
She also knew that the grand jury judge was "not happy with" Penn State Counsel Cynthia Baldwin," specifically "what she [Baldwin] said about representing the university."
In the grand jury proceedings, Baldwin asserted that she had represented the university, and not Penn State President Graham Spanier, Athletic Director Tim Curley, and Penn State Vice-President Gary Schultz. Apparently, the grand jury judge had a problem with that, McChesney wrote.
Freeh's investigators also interviewed Baldwin on several occasions.
Baldwin's grand jury testimony was described by McChesney in her diary as "inconsistent statements." McChesney also noted that "we are getting" copies "of the transcripts."
And the grand jury transcripts on Baldwin weren't the only documents the AG's office was sharing with Freeh's investigators. On April 2, 2012, McChesney recorded being notified by fellow investigator McNeill that "AG documents received re: Curley and Schultz."
In her diary, McChesney continued to log grand jury secrets that not even the defendants in the Penn State case were aware of.
On April 16, 2012, McChesney recorded "next week more grand jury," and that Spanier would be charged. She added that Spanier's lawyer didn't "seem to suspect" that Spanier was going to be arrested. She also recorded that Spanier's lawyer "wants access to his emails," but that Fina did not want Spanier "to see 2001 email chain," where Penn State administrators talked about how to handle Sandusky and his habit of showering with children.
McChesney wrote that the grand jury was meeting on April 25th, and that an indictment of Spanier might come as soon as two days later. She also recorded that Fina "wants to question [people]; then it turns into perjury," which McChesney noted was "not fair to the witness."
More Frank Fina Leaks
On April 19, 2012, Paw "spoke with Fina," and was advised that the deputy attorney general "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."
McChesney further recorded that "attys and AG's office staffs are talking & still looking to charge Spanier." Paw, she wrote, was scheduled to meet with Spanier's lawyer tomorrow, and that "Fina said the 4 of them [including Wendell Courtney] are really in the mix." McChesney was presumably referring to Spanier, Curley, Schultz and Courtney, then a Penn State counsel.
The emails from the trio of Penn State administrators, McChesney wrote, would be "released in a [grand jury] presentment and charging documents."
The night before Spanier was arrested, Paw sent an email to his colleagues at the Freeh Group, advising them of the imminent arrest.
The subject of Paw's email: "CLOSE HOLD -- Important."
"PLEASE HOLD VERY CLOSE," Paw wrote his colleagues at the Freeh Group. "[Deputy Attorney General Frank] Fina called tonight to tell me that Spanier is to be arrested tomorrow, and Curley and Schultz re-arrested, on charges of obstruction of justice and related charges . . . Spanier does not know this information yet, and his lawyers will be advised about an hour before the charges are announced tomorrow."
Other members of the state attorney general's office were helpful to Freeh's investigators. McChesney wrote that investigator Sasssano divulged that he brought in the son of Penn State trustee Steve Garban because "he had info re [Jerry Sandusky] in shower." The AG's office also interviewed interim Penn State football coach Tom Bradley about his predecessor, Joe Paterno and the 1998 shower incident.
"Bradley was more open & closer to the truth," McChesney wrote, "but still holding back."
On April 26, 2012, McChesney noted in her diary that "police investigators have interviewed 44 janitors, 200+ victims." On May 1, 2012, she wrote that Fina told them that "Spanier brings everyone in on Saturday." Fina also told the Freeh Group that he found out from Joan Coble, Schultz's administrative assistant, and her successor, Kim Belcher, that "there was a Sandusky file," and that it supposedly "was sacrosanct and secret."
McChesney recorded that Fina told the Freeh Group that one of Schultz's administrative assistants "got a call on her way to work on Monday from Schultz." She was told she had to surrender keys, presumably to the locked file. "She's emotional," McChesney wrote. " She may have been sleeping w Schultz."
Both Coyle and Belcher got immunity to testify against Schultz. Meanwhile, there were several leakers on Schultz's supposedly secret file that he was keeping on Sandusky. As McChesney recorded in her diary, "Fina got papers from two different sources."
The cooperation between the attorney general's office and Freeh's investigators went both ways.
When Freeh's investigators, including McChesney, interviewed Penn State counsel Baldwin and learned somebody else in the attorney general's office was leaking her information, they knew they had to tell Fina.
"Paw: didn't tell Fina that Baldwin heard @ the charges before they happened, but will tell him that," McChesney wrote. Baldwin, McChesney added, told Freeh's investigators that "a colleague in the AG's office leaked that Curly, Schultz and Sandusky would be charged," and that Spanier "was stunned."
Emails From The Source Materials
From the get-go, the prospect of Freeh's investigators working in tandem with the AG's office was laid out in emails circulated among Freeh's investigators.
"If we haven't, we should make certain that we determine the utility of looking into all the same areas of interest raised by the AG in the subpoenas, to ensure that we do not get 'scooped' [borrowing Louie's term used in connection with the recent federal subpoena]," Omar McNeill, a senior investigator for the Freeh Group, wrote his colleagues on Feb. 8, 2012.
"I think that we are delving into most of the same areas, but I am not sure at all," McNeil wrote.
"I want to make sure that we are comfortable that we have an understanding of all the areas the AG has inquired about in subpoenas [or otherwise if our contacts at the AG have provided us other insights] that we can state when asked -- as we certainly will be -- that we made a conscious, strategic decision as to whether to pursue those same lines of inquiry in some form," McNeill wrote.
Another term for those grand jury "insights" gleaned from our "contacts at the AG" -- leaks.
In a June 6, 2012 email, written a month before Freeh released his report on Penn State, Paw informed the other members of the Freeh Group about the feedback that Fina was getting from the grand jury.
"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.”
The cooperation between the Freeh Group and the AG's office continued to go both ways. On June 26, 2012, Gregory Paw told Fina that the Louie Freeh report would be out by the week of July 13th.
Fina agreed to keep it confidential, and then, according to Paw, "He [Fina] also said that he was willing to sit with us and talk to the extent he can before the report is released if we wished for any feedback," Paw wrote.
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