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Penn State ex-administrators argue grand jury process violated legal rights, want case tossed

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HARRISBURG, Pennsylvania — Lawyers for three former Penn State administrators asked an appeals court Tuesday to throw out some or all of the charges against them, arguing their right to legal representation was violated during secret grand jury proceedings.

In a set of three arguments before a three-judge Superior Court panel, the defendants' attorneys said there were several problems with the process that resulted in their clients being charged with covering up child sex abuse complaints about , a former assistant football coach under who is serving up to 60 years in prison.

Much of the discussion focused on the role played by Cynthia Baldwin, who was Penn State's general counsel as the investigation heated up in 2011 and who advised the men during grand jury appearances.

Jeffrey Wall, attorney for former Penn State president , argued that either Baldwin represented Spanier as an individual, raising attorney-client privilege issues, or that she was giving advice to him in his official capacity only, generating problems about his right — as an individual — to legal counsel.

"This appeal really is that simple," Wall told the judges.

Judge Mary Jane Bowes questioned the sides about Baldwin's own grand jury appearance in 2012, shortly before state prosecutors charged Spanier. The other two, former athletic director Tim Curley and former vice president , had been charged along with Sandusky in November 2011.

All three men are accused of perjury, obstruction, conspiracy, child endangerment and failure to properly report suspected abuse. They are free on bail, and none was in the courtroom Tuesday.

Amy Zapp, representing the attorney general's office, told the judges that prosecutors do not believe the defendants are entitled to any type of relief from the court. She also noted that Baldwin's grand jury testimony was not used at the preliminary hearing.

Prosecutor Frank Fina assured the grand jury supervisory judge in 2012 that he would not delve into privileged communications among Baldwin and the three administrators. But defense lawyers, citing the sealed case record, argued that Fina proceeded to do just that.

Bowes asked Schultz attorney Tom Farrell whether the lawyer-client privilege issues should have been worked out before that grand jury hearing.

"Yes, it would have, but Fina said he wouldn't go there," Farrell replied.

Curley's lawyer, Caroline Roberto, said state law gives witnesses before a grand jury a right to legal counsel so people have protection from incriminating themselves.

"A layperson doesn't know how tricky it can be to determine what might be incriminating," Roberto said.

The appeals were launched after a January order by Dauphin County Judge Todd Hoover that rejected defense attacks on the fairness and legality of the process.

Hoover ruled that Baldwin had represented the three as university employees and that they were not denied the right to legal counsel. He also rejected claims about conflict of interest, violations of attorney-client privilege and allegations of prosecutorial misconduct.

The judge in Sandusky's criminal case pushed it to trial by summer 2012, when he was convicted of 45 counts of child sexual abuse involving 10 boys. Sandusky, 71, is serving 30 to 60 years in state prison. The case is now on appeal.

But the former administrators' case has moved much more slowly, largely because of the legal dispute surrounding Baldwin's role.

PHOTO: FILE - This file combination photo shows former Penn State Vice President Gary Schultz, left, former Penn State Director of Athletics Tim Curley, right, and former Penn State president Graham Spanier, center, in Harrisburg, Pa. The criminal case against the three former high-ranking Penn State administrators is headed to a Pennsylvania appellate courtroom, Tuesday, Aug. 11, 2015, nearly four years after two of them were first charged. A decision against them could clear the way for trial. (AP Photos/File)
FILE - This file combination photo shows former Penn State Vice President Gary Schultz, left, former Penn State Director of Athletics Tim Curley, right, and former Penn State president Graham Spanier, center, in Harrisburg, Pa. The criminal case against the three former high-ranking Penn State administrators is headed to a Pennsylvania appellate courtroom, Tuesday, Aug. 11, 2015, nearly four years after two of them were first charged. A decision against them could clear the way for trial. (AP Photos/File)

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PHOTO: FILE - In this Feb. 14, 2006, file photo, Allegheny County Judge Cynthia Baldwin leaves a Judiciary Committee hearing with her husband, Arthur, in Harrisburg, Pa., where Baldwin picked up support for her nomination to Pennsylvania's highest court. The Superior Court sessions on Tuesday, Aug. 11, 2015, in Harrisburg will focus on the actions of Penn State’s then-general counsel, Baldwin. She was involved as the men were being investigated for an alleged cover-up of child sex abuse complaints regarding Jerry Sandusky. (AP Photo/Carolyn Kaster, File)
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