Nov 21, 2012 3 min read

HARRISBURG – A new defense filing argues that Penn State’s former chief counsel should not be allowed to testify next month about what two former high-ranking administrators told her regarding the Jerry Sandusky child molestation scandal.

Attorneys for athletic director Tim Curley and university vice president Gary Schultz asked a judge in Harrisburg to prohibit testimony by Cynthia Baldwin – about what they describe as “privileged communications” – when the men face a preliminary hearing Dec. 13.

Baldwin’s role was also the focus of pretrial motions filed three weeks ago by Curley and Schultz, shortly before prosecutors added new charges as well as criminal allegations against their onetime boss, former Penn State president Graham Spanier.

At issue is whether Baldwin was acting as their lawyer when the three men met with prosecutors, and then testified before a grand jury about their actions in response to complaints that Sandusky had been acting inappropriately with boys in school showers in 1998 and 2001.

Lawyers for Curley and Schultz wrote, in the document filed late Tuesday in Dauphin County court, that state law requires the judge “to exclude the testimony of Ms. Baldwin in criminal proceedings against her former clients, Curley and Schultz. In the absence of a waiver by the client, an attorney is barred from testifying, in a criminal matter, regarding statements that the client made to the attorney in confidence.”

In a prosecution filing last week, the attorney general’s office said it was not aware of any conflict of interest on Baldwin’s part and therefore had no reason to raise the issue before the judge who supervised the secret grand jury. Prosecutors argued that representing multiple clients does not necessarily mean a lawyer has a conflict of interest.

“Based on their interviews prior to testifying, it appeared that the defendants intended to cooperate in the investigation,” prosecutors wrote on Nov. 14. “Such action would not conflict with the interests of the other witnesses represented by attorney Baldwin, who also were cooperating. That the defendants actually intended to mislead the grand jury and the commonwealth would not alter the fact that, at the time they were represented by attorney Baldwin, there was no conflict of interest.”

A spokesman for the attorney general’s office declined to further comment Wednesday.

Baldwin, a former state Supreme Court justice, has been replaced as the school’s chief counsel. Her lawyer, Charles DeMonaco, issued a statement this summer that stated she “at all times fulfilled her obligations to the university and its agents.” DeMonaco said Wednesday he had not seen the motion to preclude her testimony.

Sandusky, the school’s former assistant football coach, is serving a 30- to 60-year prison sentence for sexual abuse of 10 boys, but maintains his innocence and is pursuing appeals.

Curley and Schultz are seeking to delay their January trial on charges of perjury and failure to report suspected child abuse. The December preliminary hearing will be about the additional charges they face of conspiracy, obstruction and endangering a child’s welfare.

Curley is on paid leave during the final year of his contract with the school, and Schultz has retired.