Slime-Fest At The D-Board

By Ralph Cipriano
for BigTrial.net

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."

But no hearing was ever held to let a judge decide whether Baldwin's testimony would violate the attorney-client privilege of Spanier, Curley and Schultz. Instead, the transcript showed, Fina urged the judge to "put those matters on hold" regarding the attorney-client privilege so "we can address that later on."

"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.

"Where's Spanier, Schultz or Curley," McGettigan told the three-lawyer panel hearing the case against Fina. "They should be here."

"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.