A Prosecutor, a Witness, and a $20 Million Settlement

By Ralph Cipriano

At the sex abuse trial of Jerry Sandusky, the late Deputy Attorney General Joseph McGettigan asked one of Sandusky’s alleged victims on the witness stand about his hunt for a lawyer.

“Did your Mom tell you she was going to get a lawyer?” McGettigan asked on June 14, 2012.

“No, you’re my lawyer,” replied Sabastian Paden, AKA “Victim No. 9” at trial.

“Are you going to pay me?” the prosecutor asked the witness.

“Yeah, I’m going to try,” Paden replied.

sebastian paden - Frank Report — Sabastian Paden

After Sandusky was convicted on 45 counts of sex abuse, and sentenced to 30 to 60 years in prison, Paden hired a civil lawyer and sued Penn State for damages. He wound up collecting the highest payout of any of Sandusky’s alleged victims, $20 million.

From Criminal Trial to Civil Payday

And who wound up overseeing the distribution of all that money?

Why Joe McGettigan’s wife, and McGettigan’s fellow lead prosecutor in the Penn State case, former deputy attorney general Frank Fina.

After he left the attorney general’s office on April 11, 2013, McGettigan joined a law firm headed by Dennis McAndrews, another fellow prosecutor whom McGettigan had previously worked with in Delaware County.

It was McAndrews who, prior to Sandusky’s sentencing on Oct. 9, 2012, arranged for attorney Stephen Raynes to file a notice of claim against Penn State, on Paden’s behalf.

On April 28, 2015, Penn State, without doing any investigating of Paden’s improbable and evolving claims of abuse, paid Paden $20 million.

The Trust Fund and the Prosecutors’ Post-Trial Roles

McAndrews then set up a trust fund for Paden to manage the settlement money, as well as a separate trust fund for Paden’s mother. Paden’s trust fund was overseen by a “Trust Protective Committee” whose members included Fina, and Gay Warren, who became McGettigan’s wife.

According to a Post Conviction Relief Act [PCRA] petition filed in court by Sandusky’s lawyers, trust committee members were paid an annual $5,000, plus “reasonable hourly compensation.”

McGettigan died on Dec. 31st, at age 76. But his widow and Fina are around, and available to testify.

Sandusky’s PCRA Petition and Call for an Evidentiary Hearing

In a reply brief filed Feb. 5th in Centre County Common Pleas Court by Sandusky’s lawyers, Sandusky asserts that an evidentiary hearing is needed to delve into the relationship between Paden, identified in the brief only by his initials, S.P., and Fina, McGettigan, and McGettigan’s wife.

“In light of McGettigan and Fina’s profiteering off of S.P. after the trial, S.P.’s trial testimony appears in a whole new light,” wrote Jerry Russo, Barbara Zemlock, Heidi Freese, and J. Andrew Salemme.

“Pointedly, these facts alone warrant an evidentiary hearing to establish exactly when McGettigan and Fina discussed assisting S.P. with obtaining a civil lawyer and/or a civil settlement, what they discussed with S.P. during trial, and their interactions with civil counsel for S.P. prior to Sandusky’s original sentence.”

Unanswered Questions About Financial Interests

According to Sandusky’s lawyers, there’s a long list of unanswered questions regarding the involvement of the lead prosecutors in setting up Paden’s $20 million trust fund.

“That is, when did McGettigan and Fina begin to discuss a civil suit with S.P.?,” Sandusky lawyers asked.

“Did McGettigan and Fina refer S.P. to his civil attorneys? Did McGettigan and/or Fina receive any type of referral fee?”

“Did McGettigan and Fina have an expectation during trial that they would receive renumeration from S.P.?”

“If not, why did S.P. testify that he believed McGettigan was his attorney and that S.P. would get him paid?” Sandusky’s lawyers wrote.

“How much did McGettigan and Fina receive in compensation from S.P. based on his settlement?”

“The Commonwealth does not even attempt to answer any of these questions and does not provide an affidavit from McGettigan or Fina — likely because that would establish obvious disputed issues,” Sandusky’s lawyers wrote.

The Affidavit of Frank Parlato

In an affidavit filed previously in support of Sandusky’s request for an evidentiary hearing, journalist Frank Parlato stated that according to Paden’s mother, around the time of the Sandusky trial, the prosecutors told her son, “You will never have to work a day in your life.”

In AFFIDAVIT OF FRANK PARLATO – FINAL SIGNED, he explained that Paden’s mother told him that Paden’s civil lawyers bought her son “expensive gifts, moved the family to a Bryn Mawr condo, then to multiple homes in Malvern, and provided cash on request.”

Paden’s mother, Parlato’s affidavit stated, later learned that these funds were borrowed against a future settlement, including hundreds of thousands of dollars at 27% APR (monthly compounding) from US Claims, used for living expenses and numerous paid ‘therapists/professionals.’ ”

Control of the Trust and Allegations of Dependency

Paden was paid at the rate of $1,000 a week, or $52,000 a year. His draw was later increased to $1,500 a week, “ensuring ongoing dependency while the Committee retains — and is compensated for — full control” of Paden’s life, Parlato wrote in his affidavit.

“If [Paden] seeks to terminate the Trust and assume control over his assets, termination requires a recommendation from two Committee members,” Parlato wrote in his affidavit. “Fina and Warren (McGettigan) can thus block his financial independence indefinitely.”

In their latest brief in support of an evidentiary hearing, Sandusky’s lawyers state:

“The Commonwealth’s assertion that McGettigan and Fina’s highly irregular (and likely unprecedented) running of a multi-million dollar trust for a former witness in their most famous trial only occurred after Sandusky’s conviction itself raises questions of fact. Sandusky is entitled to a hearing.”

The Commonwealth’s Response: No Conflict, No Hearing Needed

But according to a response brief filed Feb. 12th in Centre County Common Pleas Court, there’s no possible conflict of interest on the part of McGettigan and Fina, because the trust fund was set up after Sandusky was convicted.

None of the trust fund agreements set up in 2015 “reflect that the trial prosecutors had a financial interest in S.P.’s testimony when prosecuting defendant in 2012,” wrote state Attorney General Dave Sunday and Senior Deputy Attorney General Cari Mahler.

“Defendant just imagines there was some sort of ‘premediated financial scheme’ in play by the prosecutors at the time of his trial,” the A.G.’s response brief states.

In fact, the A.G. states, Parlato’s affidavit and the trust documents show that three years after Sandusky was convicted, “Attorney McAndrews set up a trust to help S.P., then 22 years old, protect his 20 million dollar settlement.”

“Frank Fina,” the A.G. admitted, “was one of three individuals on the Trust Protective Committee.”

And that, “as reflected by his signature and initials in the trust agreement, S.P. consented to the legal arrangements delineated in the trust agreement to help manage and protect his $20 million assets.”

“All of this occurred years after defendant’s trial proceedings had concluded and far from represent ‘new’ evidence that the prosecutors had a financial incentive in connection with S.P.’s pretrial allegations and 2012 trial testimony,” the A.G.’s response brief states.

After-Discovered Evidence and the Legal Standard

The A.G.’s brief then ludicrously states that while he was on the witness stand, Paden never stated that his testimony was false, or that he was trying to cash in.

“At trial, S.P. testified that no one ever told him to say anything other than the truth, that Attorney McGettigan never told him what to say other than the truth, and no one forced him to come to court,” Sunday and Mahler wrote.

“S.P. has never stated his testimony at trial was false or that the prosecutors motivated him to testify a certain way or to say certain things in the hopes they could all profit down the road from the allegations,” Sunday and Mahler wrote.

“This Court does not need an evidentiary hearing to find that defendant’s new information would not likely compel a different verdict,” the A.G.’s response brief concluded.

Citing prior cases, the A.G. states that before ordering an evidentiary hearing, a judge is obligated to determine “whether the [new] evidence is of such nature and character to compel a different verdict in a new trial.”

The court, the A.G. argued, should also consider “the integrity of the alleged after-discovered evidence, the motive of those offering the evidence, and the overall strength of the evidence supporting the conviction.”

“For the reasons stated above,” Sunday and Mahler conclude, “the Commonwealth respectfully requests that the Court deny defendant’s third untimely PCRA petition without an evidentiary hearing.”