'CLOSE HOLD -- Important' -- It's Deputy Attorney General Frank Fina On The Line, Ready To Spill More Grand Jury Secrets

By Ralph Cipriano

for BigTrial.net

The night before former Penn State University President Graham Spanier was going to be arrested, Spanier didn't know about it, and neither did his lawyers.

But Gregory Paw, a senior investigator for the Louis Freeh Group did, thanks to a tip from then Deputy Attorney General Frank Fina.

On Oct. 31, 2012, Paw sent an email to the Freeh Group, which had conducted a separate $8.3 million investigation of the Penn State scandal. 

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 [former Penn State Athletic Director Tim] Curley and [former Penn State Vice President for business and finance Gary] 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."

Fina, now a criminal defense lawyer, has not responded for months to multiple requests for comment. His alleged misconduct as a deputy attorney general is currently the subject of an ongoing hearing before the Disciplinary Board of the state Supreme Court, where Fina has been accused of repeatedly violating the attorney-client privilege in secret grand jury proceedings, and in the process, trampling on the constitutional rights of three former Penn State officials.

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."

During his career, Fina has frequently been accused of being an overzealous prosecutor who repeatedly stepped over ethical boundaries during his crusades. Last month, the counsel for the disciplinary board accused Fina of "deliberately and recklessly" violating the attorney-client privilege when he questioned former Penn State Counsel Cynthia Baldwin before a grand jury. 

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.

The only problem was that grand jury proceedings in Pennsylvania are supposed to be kept secret. And nobody at the Freeh Group was authorized to share confidential grand jury information. But that didn't seem to bother Frank Fina or Louis Freeh and his team.

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.

"The ever colorful Fina said yesterday that he has told Baldwin's counsel that he was comfortable putting '12 people in a box' and being able to convict her," Paw wrote. "He [Fina] also said she [Baldwin] was 'looking at a bullet' and 'facing the Big Meglia."

"Meglia" appeared to be a misspelled reference by Fina to the Magilla Gorilla cartoon character from the 1960s. Apparently, Fina was a fan.

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 . . ."

Emails showed that Fina had long targeted Baldwin and Spanier, for prosecution. 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.”

"He [Fina] says that Baldwin has been significant in helping their case recently," Paw wrote the Freeh Group. "He [Fina] thanked us for our hard work and said we were instrumental in helping to bring this about. Spanier does not know this information yet, and his lawyers will be advised about an hour before the charges are announced tomorrow."

What the Freeh Group, and Fina, were instrumental in bringing about was convincing Baldwin, a former state Supreme Court justice, to flip, and testify against her former clients. But Lawrence Fox, an ethics expert for the state Supreme court's disciplinary board, took a dim view of Baldwin's betrayal of her clients.

"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 response to a request for comment, former FBI Director Freeh wrote that several of the leaked emails in question “were written months after our Penn State work had ended, after our recommendations already were being implemented by Penn State.” 

The emails regarding what Fina had to say, Freeh wrote, were attempts by “leakers” to “distract from the damning and conclusive record of the horrible acts that took place at Penn State in the years before Sandusky’s arrest.” 

But was it proper for Freeh to know what was going on during the supposedly secret grand jury investigation? When asked if Freeh, as a private citizen during his Penn State probe, was authorized to have access to grand jury secrets, the former FBI director declined comment. 

On Feb. 29, 2012, Baldwin was interviewed by two investigators from the Freeh Group -- Gregory Paw and Kathleen McChesney. In that interview, according to a draft report, Baldwin didn't show any hesitancy in talking about Spanier. The former university president, however, has filed an affidavit saying that he believed Baldwin was his lawyer during the grand jury proceedings, and that he believed their communication was confidential under the attorney-client privilege.

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. 

On Feb. 29, 2012, when  Baldwin was interviewed by two investigators from the Freeh Group, Paw and McChesney, Baldwin disclosed a previous leak from the state attorney general's office, but did not specify the identity of the leaker.

"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 that 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.

Paw complained that another member of the AG's staff, Bob Connolly, had told Baldwin in advance about the charges filed by the Penn State grand jury in 2011. But that leak was not authorized by the Attorney General's office, Paw wrote, according to his conversation with Fina.

Apparently in the AG's office, there are authorized leaks and non-authorized leaks.

Other emails circulated among the Freeh Group revealed that Fina was angry at Baldwin, and blamed her for obstructing the attorney general's investigation of Sandusky.

Fina, according to Paw, told the Freeh Group, "It is clear in many respects that Penn State and Baldwin interfered with the [grand jury] investigation, including their lack of any effort to search for relevant emails as well as their attitude on production of materials to [grand jury] subpoenas. He [Fina] suggested that Spanier be asked about his knowledge of Baldwin's litigation against [grand jury] subpoenas in 2011."

Penn State was served with subpoenas for documents in December 2010, but did not comply until April 2012.

Tracking Cynthia Baldwin's testimony during the course of the Penn State investigation is an amazing tale of flip-flops.

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.

But when she testified seven months later, on Oct. 26, 2012 before the grand jury as a government witness, Baldwin told a different story. She told the grand jury that the information Spanier gave reporters about his knowledge of Sandusky or his own conduct was filled with falsehoods. “He is not a person of integrity,” Baldwin testified. “He lied to me.”

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.

The court found Fina’s questioning of Baldwin “highly improper,” and said that Baldwin breached the attorney-client privilege when she testified before the grand jury in 2012, and was questioned by Fina. The Superior Court also found that Fina claimed that when he questioned Baldwin, he was going to avoid asking questions about her representation of the three Penn State administrators to ensure that there was no violation of the attorney-client privilege.

But the Superior Court found that Fina was “paying lip service” to the privilege concerns, misled the grand jury judge, and posed a “significant number” of questions to Baldwin before the grand jury that “implicated potential confidential communications.”

The subject of the inquiries being conducted by the Freeh Group and the Attorney General's Office into Penn State, and the prospect of the investigators working in tandem, was laid out in emails circulated among Louis 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," McNeill 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.

On April 30, 2012, McChesney made note of another email from Paw to the Freeh Group about the Attorney General's supposedly secret dealings with another witness in the Penn State investigation.

The subject of email: "Fina important." 

"Fina said Kim Belcher lied to [the Freeh Group] about everything she told [them], Fina said CB [Cynthia Baldwin] 'deeper in the mix than he suspected.' Because even before the state issued subpoenas she was 'significantly informed about McQ [Mike McQueary] allegations."

Kimberly Belcher, a former secretary for Gary Schultz, received a grant of immunity from the attorney general's office. She testified on July 29, 2013 that she removed a confidential file on Jerry Sandusky from Schultz's office because, "I wanted to be helpful."

The file contained Schultz's handwritten notes into the 1998 investigation into Sandusky showering with an 11-year-old boy on the Penn State campus. The file also contained printed out copies of emails that Schultz had sent out regarding the 2001 shower incident allegedly witnessed by Mike McQueary.

In January 2012, Belcher met with investigators for Freeh. She had intended to tell the investigators about the Sandusky file, but apparently changed her mind once she found out that an attorney present was there to represent the university and not her.

On Oct. 16, 2012, the AG's office was looking for help from the Freeh Group in their investigation of Belcher.

"Fina called yesterday and would like to interview me and have me testify before the [grand jury] re: Kim Belcher's interview," Gerry Downes, a former FBI agent who was another Freeh investigator, wrote Paw. 

"Apparently, Kim is still lying to them and they're planning to charge her with obstruction of justice," Downes wrote. "Lisa Powers [Penn State's director of news and media relations] is also under investigation for withholding information."

As the Attorney General's investigation into Penn State continued, so did the leaks from the AG's office. And Frank Fina wasn't the only leaker.

On April 17, 2012, McChesney recorded in her diary that Anthony Sassano, the lead investigator for the AG's office on the Sandusky case, had told the Freeh Group that Spanier would be arrested.

Two days later, on April 19, 2012, McChesney recorded in her diary that Fina and Greg Paw also discussed that Spanier would be arrested. And that Fina claimed that Jay Paterno, son of the Penn State coach, supposedly told Fina that Joe Paterno knew about a prior 1998 shower incident involving Jerry Sandusky.

On May 24, 2012, two months before their report came out, members of the Freeh Group were still working their contacts at the AG's office to find out about the possible arrest of Spanier.

Rick Sethman, a state trooper, wrote that he was meeting Anthony Sassano the next day.

"By the way," Gregory Paw wrote Sethman back that same day, "We heard another rumor that Spanier may be charged on Tuesday. You may want to see if you can get any sense from Sassano on whether he knows anything. I have a call into Fina but have not heard back from him."

The cooperation between the Freeh Group and the AG's office went 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.

And then Paw wrote his colleagues about some feedback from the AG's supposedly secret grand jury investigation, as passed along by Fina. According to Paw, that's when Fina mentioned the grand jurors told them they wanted to take a "fire hose" to Penn State. And that Fina was looking forward to seeing Baldwin and Spanier taken out in handcuffs.

Months after the Freeh Report was released on July 12, 2012, a blogger questioned the close relationship between the Freeh Group and the AG's office.

In response, Freeh, on March 11, 2013 issued a statement that said, "Our communication with these offices in no way impacted the independence of our work or the conclusions contained in our report."

The subject of Frank Fina leaking grand jury investigation was also raised in an appeal filed on behalf of former state Attorney General Kathleen Kane, who herself was convicted of leaking grand jury secrets in an effort to get back at Fina, whom she had been feuding with.

In defense of Kane, her lawyer, Joshua D. Lock of Harrisburg, filed a June 10, 2017 appeal in state Superior Court that said, "Leaks of grand jury information have occurred repeatedly in recent high-profile Pennsylvania cases -- including two of Mr. Fina's own cases."

"None of these other leaks appear to have resulted in so much as an investigation, and certainly none have led to a criminal prosecution," Lock wrote.

"For example, during the grand jury investigation into Jerry Sandusky, the very charges against Sandusky were posted to the state court website while they were still supposed to be secret," Lock wrote. " And once those secrets were posted on the website, Sara Ganim got the big scoop about the impending indictment. "As mentioned earlier, the lead prosecutor on the Sandusky case was Frank Fina," Lock wrote.

"However, there is no indication in the public record that Fina or any other prosecutor submitted the matter for investigation or that anyone has been criminally prosecuted for it," Lock wrote.

"Similarly, during the 'Bonusgate' investigation, also supervised by Fina, a partial transcript of grand jury testimony was leaked to the Pittsburgh Post-Gazette," Lock wrote. "Once again, there is no public indication that any investigation of this incident ever occurred and once, again, no one has been prosecuted for the leak."

In the appeal, Lock noted that in a March 17, 2014 Philadelphia Inquirer story about Tyron Ali, an AG informant  in a sting operation that targeted black Democratic lawmakers, "contained multiple leaked facts from the Ali investigation." Those facts included which four state lawmakers took money and how much  according to "people with knowledge of the investigation," Lock wrote.

"Although Mr. Fina supervised the Ali investigation, there appears to have been no investigation into the source of these leaks, and there was no prosecution," Lock wrote.

"In short, although there have been leaks of grand jury information in other recent, high-profile case, only Attorney General Kane has been prosecuted," Lock wrote. 

Kane was sentenced in October 2016 to 10 to 23 months in jail after a jury found her guilty of two felony perjury counts and seven misdemeanor accounts. The charges resulted from Kane's leak of information pertaining to a grand jury probe led by Fina of former Philadelphia NAACP director Jerry Mondesire that produced no charges.

Fina, who left the attorney general's office in 2012, resigned from the Philadelphia district attorney's office in 2016 the wake of the "Porngate" scandal initiated by Kane. In that scandal, many pornographic emails were found in his emails from Fina's government account.

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.

In his opinion, Judge Foradora talked about allegations of prosecutorial misconduct raised by Sandusky's appeal lawyers against Fina. Judge Foradora, however, concluded that Fina wasn't the leaker who was feeding reporter Sara Ganim intel about an impending grand jury presentment because Fina said so.

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.

Fina had asked Judge Barry Feudale, the supervising judge of the grand jury, to investigate the leak, Judge Foradora wrote. So, Judge Foradora decided, after hearing testimony from Fina, that it wasn't Fina doing the leaking at the A.G.'s office.

At the PCRA hearing, "the testimony, then did not support the idea that the prosecution leaked grand jury information for any reason, let alone for the purpose of generating more victims," the judge wrote. 

"If anything it supports the opposite conclusion, because while someone might be skeptical about the validity of [Deputy Attorney General Jonelle] Eshbach and Fina's internal 'trap,'" the judge wrote. "It is a fact of human nature that one engaged in or aware of misconduct he does not wish to have exposed does not ask an outside source to investigate it."

Nice theory, judge. But perhaps Fina and Eshbach set that "trap" as a ruse to throw the hounds off the scent. Eshbach has previously been accused of leaking by Mike McQueary, the official whistle blower in the Penn State scandal. 

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.