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Jul 24

If You are Subpoenaed to Appear Before a Pennsylvania Grand Jury, Learn from Graham Spanier’s Mistake: Take Your Lawyer

We wrote about the ongoing fallout from the Jerry Sandusky scandal in January, and whether former Penn State General Counsel Cynthia Baldwin made some critical missteps by appearing at the grand jury with former President Graham Spanier, Vice President Gary Schultz, and Athletic Director Tim Curley. While the defendant’s motions to dismiss the case are still pending in the trial court, Spanier has filed a federal action seeking to enjoin the prosecution on the grounds that he has been denied his constitutional due process rights. The Commonwealth has filed a motion to dismiss the lawsuit on the grounds, among others, that the federal court should abstain from interfering in an ongoing state criminal proceeding.

In last Sunday’s New York Times Magazine, Micheal Sokolove’s article about Graham Spanier is a must-read for those following the criminal cases of Spanier, Schultz, and Curley. Spanier explains to Sokolove why he didn’t attend the Grand Jury hearing with his own lawyer:

This is going to sound really stupid,” he said. “It is stupid. Naïve and stupid. But I was looking forward to meeting with them. I thought I was helping. I was excited about having the experience of going to a grand jury and helping them with their investigation, whatever it was.

Michael Sokolove explained in an interview some of the reasons he felt drawn to writing about the Penn State scandal and Graham Spanier:

I’m a native Pennsylvanian. It’s a colorful state, full of great characters, but maybe not the best place to be caught up in the court system and awaiting justice.

Graham Spanier, a highly educated and sophisticated man, clearly did not follow the sadly true cliché: better safe than sorry.  It is impossible to ever know if the mere presence of his own counsel at the Grand Jury proceeding could have changed the course of events for him.  But I bet now that if Spanier could turn back time, he would have walked into that grand jury room with his own lawyer.

UPDATE: July 28, 2014:

No sooner did we provide an update regarding the ongoing prosecution of former Penn State officials Graham Spanier, Gary Schultz and Tim Curley – noting that Spanier had sued Pennsylvania Attorney General Kathleen Kane in federal court to stop his state prosecution – than we were overtaken by events with the court granting the Commonwealth’s motion to dismiss the federal case. Spanier had argued that his prosecution was in bad faith and that, as a result, the federal court should not defer to the state prosecution and his prosecution should be dismissed. The court concluded that Spanier could not meet the “bad faith” requirement necessary for federal intervention. The court rejected as “legal conclusions” his argument that the deputy attorney general “deliberately obtained uncounseled testimony from him” and further noted that he will have the opportunity to exclude the testimony of former Penn State General Counsel Cynthia Baldwin at his upcoming state prosecution. Ultimately, the issues regarding the role of Ms. Baldwin in the grand jury and her subsequent testimony, which we discussed here, will be played out when the three administrators head to trial.

In the meantime, the case continues to provide two key lessons:

1. For those called to testify before the Pennsylvania grand jury: take your lawyer.  2. For lawyers going to the grand jury: make sure you know who your client is.


3 Responses

  1. wlevinson says:

    “Do not talk to the police” (http://youtu.be/6wXkI4t7nuc, by a law school professor and former criminal defense attorney) applies equally to Grand Juries as shown by Dr. Spanier’s experience. Do not talk to a Grand Jury unless you initiated the contact by reporting a crime, and refuse to testify without immunity–period.

    If this kind of advice sounds “un-civic,” Dr. Spanier (and Tim Curley, and Gary Schultz) thought they also were doing their civic duty by testifying in what they believed to be an investigation of Jerry Sandusky, when it turned out that the prosecutor was looking for reasons to prosecute them. With the benefit of hindsight, they should have realized that NOTHING they could have told this Grand Jury would have assisted with the investigation (of Sandusky) because none were witnesses to Sandusky’s actions.

    Before decent police officers and prosecutors (95% or more of them) take offense to this kind of advice, they need to remember that they themselves are not there because of 95% or more of the population, and the locks on my car and home are not there for 95% or more of the population. They are all there for the small minority of people who will steal if doors are unlocked, or the small minority of police and prosecutors (e.g. Mike Nifong) who will railroad innocent people to jail to advance their own careers. From what I can see, Dr. Spanier ran into that minority, and we all need to learn from his mistake.

  2. Lathrop B. Nelson, III says:

    Whether to talk to a grand jury without immunity is a tricky question and one that you should make after consulting your counsel; Spanier apparently thought that he did that – he testified that Ms. Baldwin represented him and she didn’t object or clarify. It may take trial or post-trial appeals to find out exactly what the fall-out will be from that misunderstanding, but the lesson nonetheless is the same: make sure you know who your lawyer is and consult with him or her as to whether to testify when you get that grand jury subpoena.

  3. Christine Prokopick says:

    wlevinson: I like your comment about how people believe they are performing their civic duty. This is exactly what Spanier thought he was doing. (“But I was looking forward to meeting with them. I thought I was helping.”)

    Now that Spanier has entered the world for those charged with alleged crimes, I’m sure he thinks very differently about how he wanted to help. Susan Sontag wrote about how “Everyone who is born holds dual citizenship, in the kingdom of the well and in the kingdom of the sick.” I’ve often thought about this metaphor in the context of the criminal justice system: most people have no idea how easy it is to travel into the kingdom of the charged.

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