Court ruling on Sandusky cover-up case presents Kane with complex choices

A long-awaited Superior Court ruling that landed last month did more than just dismiss the most serious charges against three former Penn State administrators accused of covering up child sex attacks by Jerry Sandusky.

It also handed Attorney General Kathleen Kane what could be her clearest opportunity yet to steer the outcome of a case that helped shape her election and tenure.

Kane has less than three weeks to decide whether her office will ask the Supreme Court to reverse the Jan. 22 decision that drastically scaled back the case against former Penn State president Graham Spanier and top aides Gary Schultz and Tim Curley.

By accepting the ruling, Kane could leave unchallenged the court's attack on perhaps her biggest nemesis: Frank Fina. The former state prosecutor not only managed the Sandusky investigation but has since clashed with her in bitter conflict that has entangled much of Harrisburg.

But for the beleaguered attorney general - whose campaign was rooted in skepticism about the Penn State investigation - the appeal decision poses another complication:

With her law license suspended, and her own criminal trial pending, can she even have a say in the matter? And if Kane is powerless, doesn't the appeal decision fall logically to her first deputy, Bruce Beemer, a career prosecutor who helped build the case against the Penn State leaders before she took office?

"This is the wildcard: the chaos in the attorney general's office," said Barbara Doran, one of the alumni-elected Penn State trustees. "It makes it unpredictable."

Kane's office says no decision has been made.

"It's still under review," Chuck Ardo, her spokesman, said last week.

The opinion, which landed the same afternoon the state was girding for a blizzard, was the biggest ruling to date in a four-year legal battle. It tossed out perjury and obstruction counts, but left standing charges alleging the three men unlawfully failed to report Sandusky's wrongdoing to authorities.

The case pivoted on Cynthia Baldwin, a former Supreme Court justice who was Penn State's counsel when the scandal broke.

The defendants contended they thought Baldwin was acting as their attorney during the grand-jury investigation into child-sex abuse by Sandusky, the former assistant Penn State football coach - and that their conversations with her were confidential.

Baldwin has said she was representing only the institution, not individual university administrators.

In time, she turned into a damaging witness against them. In her own appearance on the grand jury witness stand, she testified that the men all told her there were no documents to reflect how they had handled Sandusky allegations - though prosecutors say Schultz hid a file containing incriminating emails and notes.

Superior Court found prosecutors' use of Baldwin's testimony violated the attorney-client privilege. The court also said she had failed to brief the defendants about their right to keep silent.

In earlier filings in the case, Kane's top deputy, Beemer joined other prosecutors, including Kane, in arguing the three men had themselves to blame for the Baldwin problem - because they lied when they told her they never knew Sandusky had brutally assaulted a boy. And Baldwin quite rightly saw no conflict between representing the three and the university, the prosecutors said.

Lower court judges had accepted those arguments.

The Superior Court did not.

Doran and other alumni-elected trustees who contend the university's reputation has been unfairly tarnished in the scandal want the office to forego an appeal.

"I never believed these men to be guilty of any crimes," said one, Anthony Lubrano. "I would hope that the attorney general's office would stop wasting taxpayers' money and focus on fixing a child welfare-system that's in disrepair." Others say an appeal is vital.

"Severe penalties for [abuse] enablers has an enormous deterrent effect and that's why this prosecution is so crucial," said David Clohessy, director of SNAP, a Chicago-based group that advocates for abuse survivors.

On her way to a 2012 landslide victory, Kane, a Democrat, repeatedly questioned the investigation of Sandusky, saying the case had "probably" been deliberately slowed by former Attorney General Tom Corbett. Corbett, a Republican, was preparing a run for governor, and Kane suggested he was being careful not to rile Penn State alumni before the election.

After she took office, a law professor appointed by Kane to review the investigation rejected her allegations as groundless.

If there is no appeal, Kane could well argue that the Superior Court's decisions vindicates her criticism of Fina. She has blamed him for her arrest on charges of lying to a grand jury - charges that led the Supreme Court to suspend her license.

Fina, who has filed a defamation suit against Kane, said the ruling should be appealed, but otherwise declined comment.

In interviews last week, former and current prosecutors who have previously testified before a legislative committee debating Kane's removal disagreed about whether her lack of an active law license might preclude her from deciding on the appeal.

Bruce Antkowiak, a law professor at St. Vincent's College in Western Pennsylvania, said he doubted she had the standing because an appeal decision hinges heavily on legal knowledge.

"If you are going to file an appeal, you are asking a higher court to say that the legal judgment of a lower court is incorrect in some shape or form," he said. "To make that judgment, you are providing the higher court with a legal analysis."

Berks County District Attorney John T. Adams, a Democrat like Kane, agreed.

"It is absolutely a legal decision," he said, one that must be made by a licensed lawyer. "You can't base the decision to to appeal on policy."

But former Gov. Ed Rendell, who served eight years as Philadelphia's district attorney, took a different approach.

Rendell, a Democrat, said the decision on whether to appeal involved non-legal questions, such as how to best spend taxpayer money, and that Kane still holds that power.

"It is basically a policy judgment," he said.

Correction: This story was revised to reflect that the Superior Court ruling was last month (January).

cmccoy@phillynews.com

215-854-4821