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Sandusky: The football continues to bounce in hard-to-predict directions

It has been a while now since the shocking sexual-abuse scandal involving Penn State Assistant Coach Jerry Sandusky rocked the legal, sports and general communities. The world, sadly, has provided us with many more disturbing, violent and disruptive headlines since then, and most have put the Penn State debacle in their rear-view mirrors. The wheels of our legal system move much slower than current events, however, and while most turned attention elsewhere, the effects of the Sandusky disaster continued rippling through the legal world — a point not lost on Cynthia A. Baldwin.

Years before the world would learn of Jerry Sandusky, Cynthia Baldwin received both her bachelor’s degree and master’s degree from Penn State. After she graduated, she entered the workforce, first as a teacher and later as an English professor at her alma mater. She eventually became an assistant dean of student affairs at one of the Penn State campuses before heading to law school at Duquesne University School of Law. Dean Baldwin became prosecuting attorney-in-charge in the bureau of consumer protection in the Pennsylvania Attorney General’s office. Six years later, in 1989, Dean Baldwin became Judge Baldwin, when she was elected the first black woman judge on the Allegheny County Court of Common Pleas.

Judge Baldwin served with distinction for 16 years until 2006, when she was appointed to the state Supreme Court. Justice Baldwin served the High Court for two years before retiring from the bench in 2008 and moving into private practice with a major law firm. A few years later, her career continued on its storybook trajectory, and she returned to Penn State as the University’s first general counsel.

And then came Sandusky.

Baldwin was serving as the university’s general counsel when the scandal erupted and indictments descended. Tasked with defending the university during the maelstrom, she found herself in the thick of things. By the time the smoke cleared, several Penn State employees were charged with various crimes — including Timothy Curley, Gary Schultz and former university President Graham Spanier, who each were convicted of perjury and related charges based on their grand jury testimony. Unlike some others however, the convictions of Curley, Schultz and Spanier were ultimately set aside by the Pennsylvania Superior Court, which is when Baldwin became ensnared by the Sandusky swamp. The charges against the men were dismissed because the Court found the former Penn State employees “were effectively denied counsel for their testimony before the investigating grand jury” by virtue of Baldwin’s concurrent representation of them and Penn State University, and because of her improper testimony before the investigating grand jury regarding conversations she had with the defendants.

The Superior Court found that she had not effectively limited her representation of the individual employees and was not merely representing them in their roles as agents of Penn State University. Rather, the court held she was representing them individually as well, that she was thus jointly representing them and Penn State, and there was a resulting conflict of interest of which she failed to properly inform them. Moreover, the court found she improperly disclosed confidential client communications when she was subpoenaed and testified before the grand jury hearing the Sandusky matters. Although the rulings came in the context of the criminal proceedings against Curley, Schultz and Spanier, the impact on Baldwin’s professional reputation was inarguable.

Then, to make matters worse for her, the Pennsylvania Office of Disciplinary Counsel brought disciplinary action against her, based on the Superior Court’s findings.   To say the least, things looked bleak. Yet, as the title of this article suggests, all is not always lost when the strangely shaped football is bouncing along. In late October, the hearing committee of the disciplinary board released its report and recommendation on the disciplinary charges against Baldwin. After an extensive review of the record and legal argument, the Board exonerated her, despite the findings of the State’s Superior Court.

In reaching its surprising decision, the committee noted Baldwin was not a party to the Superior Court proceedings, and any determinations regarding her conduct were not binding against her. More important, the committee noted, the Superior Court had been determining whether criminal defendants were entitled to have certain information maintained in confidence under due process and related constitutional rights. However, this was not the inquiry presented to the committee.   Instead, the committee was tasked with determining whether the former justice’s actions constituted professional misconduct under circumstances that were not before the Superior Court — a different inquiry. The committee found that a crucial factual distinction, which had no role in the prior criminal case, came into play in its investigation. Before testifying before the grand jury, Baldwin had engaged legal counsel and was relying on that legal advice when giving her grand jury testimony. Baldwin’s reliance on counsel, the committee found, was irrelevant to the case against Curley, Schultz or Spanier but was of utmost importance to the ethical question presented to it.

Although the committee also rejected Baldwin’s claim of limited representation of the former Penn State employees, when all was said and done it found the Office of Disciplinary Counsel had failed to prove any professional misconduct by Baldwin. It found that she had investigated and properly disclosed the potential conflict between the interests of the individual employees and Penn State University, and that they effectively consented to a joint representation.

The committee then found that Baldwin competently performed the joint representation and that none of her grand jury testimony was misconduct because she reasonably believed her testimony was necessary to defend herself against accusations of criminal conduct and professional misconduct — circumstances in which such testimony was permitted.

In today’s world where judicial findings seem to matter less than social media’s views, and reputational damage ends careers regardless of judicial determinations, it is likely that Baldwin is not celebrating her current circumstance. Nonetheless, it is clear that, on this one fine day in October, the ball bounced her way.

1201kramer1:  Attorney Charles Kramer.  KAREN ELSHOUT/photo© 2018 under analysis distribution, LLC. Under analysis is a nationally syndicated column of the Levison Group. Charles Kramer is a principal of the St Louis-based law firm, Riezman Berger, P.C.   Comments or criticisms about this article may be sent to the Levison Group c/o this newspaper or direct to comments@levisongroup.com.

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