Sandusky Prosecutor Suspended

The Pennsylvania Supreme Court imposed a year and a day suspension of the prosecutor in the Sandusky child abuse case.

The misconduct involved issuing subpoenas to an attorney without prior judicial approval contrary to Rule 3.10.

A public prosecutor or other governmental 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 governmental lawyer seeks to compel the attorney/witness to provide evidence concerning a person who is or has been represented by the attorney/witness.

Comment:

[1] It is intended that the required “prior judicial approval” will normally be withheld unless, after a hearing conducted with due regard for the need for appropriate secrecy, the court finds (1) the information sought is not protected from disclosure by Rule 1.6, the attorney-client privilege or the work product doctrine; (2) the evidence sought is relevant to the proceeding; (3) compliance with the subpoena would not be unreasonable or oppressive; (4) the purpose of the subpoena is not primarily to harass the attorney/witness or his or her client; and (5) there is no other feasible alternative to obtain the information sought.

A very rare instance of discipline for such misconduct.

Justice Dougherty dissented and finds the sanction too harsh.

PennLive has extensive  reporting on the decision. 

Few Pennsylvania prosecutors have amassed the kind of record that Fina boasted during his run in the Criminal Law Division of the state Attorney General’s office at the start of this century; fewer still have also been brought down as low by the reverberations from those cases.

Fina, in a six-year period from 2007 through 2012, oversaw major investigations into the brazen marshalling of state Capitol staff and resources for political campaign purposes. He jumped from that into the Sandusky probe which – with the energy of the college sports media world behind it – would quickly topple beloved head coach Joe Paterno and turn a Pennsylvania treasure, the Nittany Lions football program, on its head.

In the years since, the dominoes from the Sandusky case have derailed football coaching careers, led to the mid-term ouster of two state Supreme Court justices and Attorney General Kathleen Kane, helped to define the outer limits of the NCAA’s power and led to significantly tighter child abuse protections. And, as Wednesday’s decision suggests, they’re still falling.

After the Sandusky conviction in June 2012, Fina was awarded the National District Attorneys Association’s “Home Run Hitter” award for outstanding work as a trial prosecutor.

At the time of his exit from the Attorney General’s office in early 2013, he was also deep into an influence-peddling investigation that would ultimately ensnare five state House members for accepting cash gifts from a confidential informant posing as a lobbyist.

But those successes also left Fina exposed to attacks from a succession of enemies including the new Attorney General Kathleen Kane, who had substantially based her 2012 campaign on a promise to conduct an internal review of her predecessors’ handling of the Sandusky probe; and a legion of ardent Penn State and Paterno supporters.

And Fina also had some Achilles Heels’ to exploit.

First, Kane’s review turned up – quite by accident – the existence of a private circle of attorneys and agents within the AG’s office that was routinely trading pornographic images. Fina was among the circle of recipients.

As embarrassing as that was, the greater professional threat for him turned out to be Spanier, Curley and Schultz’s arguments that Baldwin’s grand jury testimony implicating them had trampled their rights to fair legal representation.

Fina has consistently maintained that he stayed within the rules, and he had some lower court decisions to back him up. But two straight state courts have now ruled the other way: the Superior Court, in its 2016 ruling bouncing the most of the cover-up charges, and now the state Supreme Court with its licensing order.

In his analysis of the case Wednesday, Wecht said he found Fina had essentially made the decision on the Penn Staters’ attorney / client privilege by himself, running roughshod over a process that should have included a hearing before the grand jury judge with full participation by their attorneys.

Fina, the court’s Disciplinary Board and all six justices found, told the grand jury judge he wouldn’t go into confidential conversations between Baldwin and the administrators, and then proceeded to grill Baldwin on areas that the state’s investigators have said pertained directly to her legal representation of the men.

Wecht also lightly reprimanded the grand jury judge, Barry Feudale, for his role in the process, writing in a footnote that Feudale probably should have ordered a hearing on the defendants’ privilege claims “regardless of the representations of the prosecutor.”

Five of six participating justices on the case agreed with Wecht’s analysis; the sixth, Kevin Dougherty, said he felt the punishment was too harsh. Because Fina’s suspension extends into a second year, he will have to formally apply for reinstatement to the bar; attorneys suspended for one year or less are reinstated automatically.

Still, state data suggests the court is often inclined to reinstate as long as attorneys have met requirements like taking ethics training and other continuing legal education. Between 2009 and 2018, the last year for which full data was available, 103 attorneys have been reinstated from disciplinary suspensions; just 16 have been denied a reinstatement.

Diehard supporters of the three Penn State administrators celebrated the court’s ruling Wednesday.

“The wheels of justice turn slowly. But they do turn, and this is a perfect example,” said Anthony Lubrano, a former Penn State trustee who has been centrally engaged in the fight by some Penn State alumni to right what they saw as the scapegoating of Paterno, Spanier, and Spanier’s aides for Sandusky’s crimes.

Lubrano is among a group of that believes that while reasonable people could agree that mistakes in judgment or execution of policy were made at Penn State, it is a massive injustice to brand Spanier, Curley and Schultz as criminally liable for any of Sandusky’s actions because, in their view, they never had solid reason to believe that a child was harmed.

“When the gatekeepers of justice behave the way Frank Fina behaved, we’re all in trouble,” Lubrano said. “I’m happy that we’re getting some folks who are willing to look at these cases very carefully.”

Others said they are still convinced of the Penn State administrators’ guilt, and saddened that those cases have been sacrificed by prosecutorial mistakes.

“The Sandusky case began an era of taking more of a landscape picture of how sexual assaults happen. We understand now that people don’t get away with it for decades because one person was that crafty,” said Kristen Houser, a longtime Pennsylvania Coalition Against Rape official who’s tracked the Sandusky case from the longtime Penn State assistant coach’s 2011 arrest.

“But when we talk about institutional accountability, that also needs to include our courts, our prosecutors and our police,” she said.

Spanier attorney Samuel Silver declined comment on Wednesday’s ruling.

Fina, 54, has been in private practice in the Philadelphia area in recent years. Among his current clients are Brendan Young, the former president of the Beta Theta Pi fraternity at Penn State who is awaiting trial on hazing charges stemming from the February 2017 death of Beta pledge Timothy Piazza.

Sandusky, now 75, was initially sentenced to a minimum of 30 years in prison for his 2012 convictions on sex crimes committed against 10 different former clients of his longtime youth charity, The Second Mile, between 1994 and 2008. Sandusky has steadfastly maintained his innocence since abuse allegations started to mount against him a decade ago, but Penn State – his longtime employer – has paid civil settlements in excess of $100 million to more than 30 self-identified abuse victims dating back to the 1970s.

(Mike Frisch)