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August 31, 2012

Analysis Reveals Freeh Report Wrongfully Condemns Paterno

By Edward Monks

Detailed analysis of Freeh Report demonstrates that the conclusions asserted about Penn State Football Coach Joe Paterno are not supported by the facts recited in the Report.

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I have been waiting for someone to say the obvious, but no one has.   So here it is.   The condemnatory conclusions that the Louis Freeh Report stated about the conduct of Head Coach Joe Paterno of Penn State University are not supported by the facts recited in Freeh's Report.  Nor are those conclusions supported by the written findings of the Centre County Grand Jury in its Presentment of November, 2011.   I have heard and read many media accounts of the 267 page Freeh Report, but remarkably little effort has been given to a thoughtful analysis and consideration of it.

Freeh's law firm was retained as Special Investigative Counsel (SIC) by the Penn State trustees, who had fired Paterno, to conduct a wide-ranging study around the extensive and horrific crimes committed against boys by former PSU assistant coach Jerry Sandusky.   As described by Freeh, former head of the FBI, in his press conference of July 12, the SIC consisted of former law enforcement lawyers and officials.   I believe information cited in the Report arguably justifies the conclusion that two or three of the university administrators above Paterno failed to act with proper regard for the welfare of Sandusky's 2001 victim and for potential future victims.   However, the Report unjustifiably conflates Paterno's behavior with that of his employers and adopts untenable conclusions regarding him.

Consider the SIC's three basic criticisms of Paterno:

1)   The Report concludes that after a 1998 incident involving Sandusky, Paterno failed to "take measures to protect children," thereby failing to spare future victims.   In 1998, Sandusky had showered with a young man, whose wet hair was noted by his mother when the boy arrived home.   Questioning her son led the mother to discuss the matter with a psychologist and to promptly and rightfully report the matter to the University Police.   The psychologist reported the matter through the Pennsylvania Child Abuse Help Hotline.   The Report demonstrates that knowledge of the incident worked its way through all relevant state agencies.   The Department of Public Welfare (DPW), the agency mandated under Pennsylvania law to protect children, had one or more caseworkers review the matter.   The boy, his mother, and Sandusky were interviewed by police and/or a DPW investigator.   The boy had two psychological evaluations, one by his psychologist, and another by a DPW counselor.   Police eavesdropped on a conversation between Sandusky and the boy's mother.   A second possible shower victim was identified.   At least two prosecutors, including the Centre County District Attorney, were informed of the matter.

Law enforcement and child welfare authorities decided to take no action regarding Sandusky--no criminal charges, no civil proceeding, nothing.   The mother did not file a civil proceeding on behalf of her son.   An email mentioned in the Report implies that, in 1998, Paterno had some unspecified awareness of an investigation of Sandusky through the Athletic Director Curley who wrote to University VP Schultz and President Spanier: "I have touched base with the Coach.   Keep us posted."   A second Curley email stated, "Coach is anxious to know where it stands."   It is not clear Paterno even knew the investigation was directed at possible sexual misconduct.  

No matter what knowledge Paterno had of an investigation, a fair reading of the facts establishes that he was in no way legally or morally responsible for the harm caused by future acts of Sandusky.   In response to the 1998 incident, the entire apparatus created by the State of Pennsylvania to address the sexual abuse of a child was fully activated--police, prosecutors, mental health professionals and the DPW.  Those state employees and officials were educated, trained and experienced in dealing with child sexual abuse.   A team of investigators was at their disposal.   They had the authority to empanel a Grand Jury to investigate.   They had subpoena powers and the capacity to look at Sandusky's prior conduct, as well as locate possible prior victims.   

Law enforcement determined that doing nothing was the appropriate course.   How was Paterno to divine otherwise?   For the Report to conclude that Paterno, then a 71 year old man who had spent his entire adult life coaching football and had none of the experience, training, tools and authority possessed by those conducting the State's investigation, was morally or legally obliged to take some action when state officials had not, is, to be charitable, a conclusion without foundation in reality. To be blunt, it is unreasonable to the point it is irrational.   A fair reading of the Report reveals the various state investigative bodies did not do a thorough, quality investigation.   Law enforcement and child welfare authorities failed quite dramatically.   For the SIC to impart to Paterno greater knowledge or greater ability than law enforcement to protect children is simply wrong.   Had various law enforcement officials adequately performed the job they were paid to do, there would have been no future victims of Sandusky and not even an opportunity for PSU administrators to make mistakes in 2001.  

The SIC "did not find any evidence of interference by University administrators with the 1998 Sandusky investigation."

2)   The second area of criticism of Paterno arises from a comment made by AD Curley in an email to University VP Schultz and President Spanier, described as "critical" (Freeh's word at his press conference) in establishing that Paterno "repeatedly concealed facts" and acted with "total disregard" for Sandusky's victim after the highly publicized 2001 incident, during which Sandusky was observed by a graduate assistant coach sexually assaulting a boy in the PSU athletic facility shower.   The Report relied on the following in the "critical" email: "After giving it more thought and talking it over with Joe yesterday--I am uncomfortable with what we agreed were the next steps; I am having trouble in going to everyone but the person involved"."   The AD was explaining to the VP and President that he was changing his view about notifying the DPW and Sandusky's charity, Three Mile, about the shower incident.   He was "uncomfortable" talking to anyone but Sandusky himself.

From that quote, Freeh asserts that the "reasonable conclusion" is that Paterno, with the other three administrators, "actively concealed" the 2001 shower incident.   That is a remarkably strained conclusion.   The next paragraph in the Report illustrates that Freeh and the SIC recognized that weakness.   That paragraph cited several witnesses who, in sum, said Paterno "carried a lot of weight with Curley," in effect asking the reader to infer that Paterno must have initiated or joined in Curley's decision to reverse himself.   There is a lot wrong with the "reasonable conclusion."

First, the quote does not specify what Paterno said.   All it does is establish a sequence--the AD talked to Paterno and a day later sends an email in which he reports "I feel uncomfortable."  The Paterno reference does not even constitute "hearsay" as there is no attempt to quote, summarize, or explain what Paterno said.   If Paterno had been quoted, there would be a question whether such hearsay would be admissible in a court setting.   However, the "critical" email does not even rise to the level of inadmissible hearsay.   It is not the stuff of which objective decisions can fairly or wisely be made.

Second, if the Report were correct that Curley was influenced by Paterno while being loyal to University management, Curley likely would have invoked Paterno as agreeing with him.  The full Curley email is available on page 74 of the Report and in the Appendix. After referencing Paterno, Curley began his next comments as follows:  "I am uncomfortable..." "I am having trouble..." "I think I would be more comfortable..." "I would plan to tell him..." "I would indicate...."   If Paterno had expressed agreement with Curley, those sentences would likely begin something like "The coach and I are uncomfortable..." "We are having trouble..." "We feel..." "We think...."  The AD used a singular pronoun, never the plural.  Curley was writing to his two direct superiors, trying to get them to change their mind, yet he refused to specifically state that Paterno agreed with him.  That's not how people talk.   An employee attempting to persuade his managers would more likely invoke the concurrence of a powerful ally. The AD's refusal to do so is more persuasive than the SIC's "reasonable conclusion."   Admittedly, we are left to speculate about Paterno's conversation with Curley, but for the Report to adopt as reasonable one of many possible speculations is not intellectually justifiable.

Third, if Paterno's primary aim had been to keep the matter quiet, he never would have reported it. The evidence is clear that upon hearing of the incident through the assistant coach on February 10, 2001, Paterno reported the matter on February 11 to his two immediate managers, the Athletic Director and University VP Schultz.  Once Paterno made that report, he had no control over what was to happen next.   The information could have immediately become public. The Report assumes Paterno is trying to reel his report of the incident back two weeks after the fact.  It is not a fair assumption under the circumstances.  

The SIC conducted 430 interviews and reviewed 3.5 million emails and documents.   From that huge reservoir of information, the SIC extracted one small drop from an email and attempted to construct an edifice that simply does not stand.

3)   Freeh's final area of complaint, addressed at the press conference, was that Paterno might be guilty of perjury.   To his credit, Freeh was more restrained and professional in discussing that than he was in stating the two conclusions addressed above.   He did not assert guilt on Paterno's part and acknowledged that the facts and the law needed to be reviewed before any conclusion could be drawn.   The relevant information is set out in the Report as follows:

Paterno also testified in January 2011 before the Grand Jury.   Paterno was asked, "Other than the [2001] incident that Mike McQueary reported to you, do you know in any way, through rumor, direct knowledge or any other fashion, of any other inappropriate sexual conduct by Jerry Sandusky with young boys?"   Paterno responded, "I do not know of anything else that Jerry would be involved in of that nature, no.   I do not know of it.   You did mention--I think you said something about a rumor.   It may have been discussed in my presence, something else about somebody.   I don't know.   I don't remember, and I could not honestly say I heard a rumor."   The Special Investigative Counsel requested an interview with Paterno in December 2011.   Through his counsel, Paterno expressed interest in participating but died before he could be interviewed.

Remember, it was unclear what Paterno knew of the 1998 investigation, including whether it was directed at sexual misconduct.   Additionally, it would have been fair for Paterno to assume, based on the absence of action from State officials, that there was "no inappropriate sexual conduct."   Had there been such conduct, there would have been a prosecution back in 1998.   Furthermore, Paterno's answer exhibits a hazy recollection ""you said something about a rumor.   It may have been discussed in my presence, something else about somebody.   I don't know."   Ask any 85 year old man about his recollection of something that happened 14 years earlier, which something he had only a vague awareness of at the time and which something was so uneventful that the official state response to it was exactly nothing.   Paterno's answer is quite appropriate.

Perjury is defined as making a false statement under oath in an official proceeding, when the statement is material (meaning it could affect the course or outcome of the proceeding) and the speaker does not believe it to be true. There is nothing in the facts that suggests Paterno's testimony constituted perjury.

It appears that other than Sandusky, no individual in this process was actively malevolent toward any child.   The administrators were preoccupied with other things like their jobs and perhaps most preoccupied with the image the public might have of them and their University if the truth about Sandusky were known.   They lacked a healthy appreciation of their ability and their responsibility to protect children from sexual harm.   It is not as though they thought: "If it will save PSU, let Sandusky go on raping kids" It is more like their vision was so narrow that they did not think that far.   Paterno is not in the same place. He gave up any control of image when he reported the matters to his bosses. Maybe the essence of the evil in all this is the preoccupation with image, a public relations approach to your job, rather than the consideration and appreciation of the harm your action or inaction can have on others.  

Vice Chairman John Surma's was the Board of Trustees' spokesperson regarding its decision to summarily fire Paterno 5 days after the charges against Sandusky were made public. As widely reported:

Asked what Paterno did wrong, Surma said: "I can't characterize that.   We thought because of the difficulties that have engulfed our university, it was necessary to make a change."

For me that comment translates to the Board's attempt to appear to the public as forcefully responding to Sandusky's crimes.   It did not matter that the Vice Chairman could not state anything that Paterno did wrong.  The Trustees wanted to be perceived as taking action.   That was their aim. They were less concerned about determining the facts and then behaving justly to everyone touched by Sandusky's repellant behavior.   Justice is never served when those dispensing it are preoccupied with what the public will think of them.

The SIC's client was the Board of Trustees, who purportedly hired them to determine the facts.  The SIC team congratulated itself by stating: "...the findings in this Report represent a fair, objective and comprehensive analysis of the facts."  They do not.  The analysis of Paterno's conduct reads more like advocacy of a weak position inaccurately labeled as objectivity. The SIC comes across as suffering from a somewhat common law enforcement malady, namely the capacity to be blind to the obvious mistakes of other law enforcement officials, while self-righteously viewing the conduct of civilians through a microscope searching for imperfection, and, in this case, weaving that imperfection in to a conspiracy to conceal.   Sandusky's crimes were horrific, and that is precisely the reason that authorities should not be quick to casually label others as bearing partial responsibility for them.   Justice requires a rational conclusion drawn from an objective examination of all relevant facts.  

I believe many people think as I do that a more perfect action for Paterno on Feb 11 would have been to call the authorities or to ask assistant McQueary to do so.   Could Joe Paterno have done better?   Maybe.   If he had called the DPW or police rather than tell his superiors, it might have made a difference for victims after February 2001.   But, considering what happened to the prior report of Sandusky's 1998 misconduct to the police, the DPW and the District Attorney, such a result was not guaranteed.

The Report quoted Paterno multiple times:   "I didn't know exactly how to handle it and I was afraid to do something that might jeopardize what the university procedure was.   So I backed away and turned it over to some other people, people I thought would have a little more expertise than I did.   It didn't work out that way." It seems clear that Joe Paterno acted with more humility and a greater acceptance of his own responsibility than anyone else connected with the matter, including the police, DPW counselors/caseworkers and the District Attorney's Office regarding the 1998 incident, and McQueary, the three administrators and the Trustees to whom those administrators reported regarding the 2001 incident.   Joe Paterno's conduct was not perfect.   He was just better than anyone else involved.



Submitters Bio:

Edward T. Monks is an attorney who lives in Eugene Oregon where he has practiced law for over 25 years. Raised in New Jersey, he received his undergraduate degree in Political Science from Columbia University in New York City and his law degree from Seton Hall University in Newark, New Jersey. Monks' legal expertise has been featured on Eugene area radio (KPNW) where he has been a frequent commentator on legal matters that range from high-profile trials to constitutional law issues. From 2003-2011, Monks served as the Executive Director of a multi-faceted, non-profit social service agency, Catholic Community Services of Lane County, assisting low-income individuals and families with meeting their basic needs. Monks has written how the repeal of the Fairness Doctrine in 1987 led to the rise of partisan talk radio, dramatically altering political discourse in this country. For seven years, he hosted a local cable tv interview show emphasizing political, legal and environmental matters.

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