Will Slippery Frank Fina Beat The Rap Again?

By Ralph Cipriano
for BigTrial.net

In oral arguments today before the state Disciplinary Board, Amelia C. Kittredge urged a panel of judges to "simply apply some common sense" and finally reign in former Deputy Attorney General Frank Fina, whom she accurately pegged as an "overzealous prosecutor."

Kittredge, a lawyer for the state's Office of Disciplinary Counsel, has been stalking the ethically-challenged Fina for a couple of years now. She told the Disciplinary Board that Fina broke "the most revered" and "sacred" legal privilege of them all, the attorney-client privilege, and for that he deserves to be publicly censured.

Fina does have a proven track record of leaking grand jury secrets, trampling on constitutional rights of the accused, and blowing off legal ethics, but for years his brazen conduct been protected in the courts by what some would describe as the old-boys network. But Kittredge pummeled away at Fina today, saying the Disciplinary Board cannot allow Fina to basically use a loophole to "obliterate" a longstanding rule of professional conduct that's the only defense against an overzealous prosecutor like Fina who seeks to subvert the most basic protection afforded by the criminal justice system, by turning a defendant's own lawyer into a witness against him.

That's just what Fina is accused of doing on Oct. 22, 2012, when he told Judge Barry Feudale that he wanted to call Cynthia Baldwin, Penn State's general counsel, as a witness against three of her clients, but Fina told the judge that he wouldn't get into any areas of questioning that would violate the attorney-client privilege.

But on Oct. 26, 2012, when Fina questioned Baldwin in front of the grand jury, he "did elicit" what the disciplinary board counsel described as "extensive . . .  attorney-client privileged communications as well as "confidential information" pertaining to Baldwin's three former clients -- Penn State president Graham Spanier, vice president Gary Schultz, and athletic director Tim Curley.

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."

According to Kittredge, Fina deliberately misled the judge into not holding a hearing to seek prior approval before getting what he wanted behind closed doors from Baldwin, namely weaponizing the general counsel, and turning her into a witness who testified in secret grand jury proceedings against her own clients.

The actions of Fina and Baldwin were condemned by Lawrence J. Fox, a longtime Philadelphia lawyer who's a visiting lecturer at the Yale Law School, who was as an expert witness at Disciplinary Board hearings last June.

"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 separate action, the state Disciplinary Board has asked the state Supreme Court, which will also have the final say on Fina, to publicly censure Baldwin for abandoning her clients.

When Baldwin testified against her three former clients, according to Kittredge, those clients "astoundingly" were "not present or notified" that they were being sold down the river. Fina's lawyers, however, have claimed that the three former clients should have known that Baldwin was representing the university as a legal entity, and not the three officials individually.

After the hearings, a three-lawyer Disciplinary Board committee in January issued an opinion recommending that the charges be dismissed against Fina because of a technicality, that Fina's name was not on the subpoena issued by the state attorney general's office that summoned Baldwin to the grand jury.

Kittredge told the panel of judges today that the hearing committee had seized on a "non-issue here," namely the technicality of which prosecutor's name was on the subpoena issued by the state attorney general's office.

Former Deputy Attorney General Bruce Beemer signed the subpoena of Baldwin, but it was Fina who questioned Baldwin in the grand jury. According to Kittredge, if the hearing committee's decision is allowed to stand, the protection afforded by Rule 3.10 of the Rules of Professional Conduct would be "obliterated" by prosecutors as long as they get one of their colleagues to sign their name on a subpoena whenever they're dragging a lawyer into the grand jury to convince them to testify against their client.

In response, Dennis C. McAndrews, on behalf of Fina, basically did a tap dance routine that involved plenty of feigned outrage and references to the noble crusade Fina was on before he was turning Baldwin into a cooperator. McAndrews referred to Fina's dogged pursuit of convicted serial child molester Jerry Sandusky, and subsequent pursuit of Penn State officials who allegedly covered up Sandusky's crimes.

We now know, however, that previously undisclosed federal investigation determined that there was no official cover up at Penn State, because there was no sex crime to cover up.

"This is an extraordinary case," McAndrews declared. He claimed that no public prosecutor has ever been sanctioned for what Fina is accused of.  McAndrews cited five opinions by two judges in the case that covered for Slippery Frank, saying he didn't do anything wrong.

Fina is a noted escape artist. One of his most famous tricks was when Sandusky's lawyers went after Fina for numerous leaks in the case that could have only come from the prosecutors. Fina's defense: he tried to set a trap for the "real leakers," much like O.J. Simpson's search for the "real killers," but couldn't find them.

The judge, however, bought it, and Frank Fina was off the hook for leaking.

In the disciplinary board case against Fina, McAndrews said, no witnesses and no documents were introduced against Fina.

That's because for anybody who cares to read it, the court transcripts nail Fina's ass. But McAndrews kept dancing, and invoking that notorious serial pedophile that Fina was stalking, as well as the enablers of that pedophile.

If Fina was on such an important mission, one of the judges asked, wasn't that "all the more reason to do everything by the numbers?"

Exactly. Let's hope this time Fina gets what he so richly deserves.

Someone to finally hold him accountable.