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November 30, 2011

The Grand Jury Report: Part two of "What did Joe Paterno know and when did he know it?"

By Walter Uhler

State laws requiring mandatory reporting of child abuse severly limited Joe Paterno's options when he reported such abuse to higher officials. Still, he appears to have done more than the journalistic jackals and the mob beleive


The Pennsylvania State University is linked to the Jerry Sandusky sex scandal because: (1) it employed him as an assistant coach of Penn State's football team during the period when some of his alleged sexual molestations occurred, (2) it employed him when a specific allegation of sexual misconduct was investigated (but not prosecuted) in 1998, (3) a janitor at the university witnessed, but never reported a specific alleged molestation by the now retired Sandusky in 2000, (4) another alleged molestation by Sandusky, which took place on 1 March 2002 in a university shower, was witnessed by a graduate assistant on the football team, (5) Coach Joe Paterno, Athletic Director Tim Curley, Senior Vice President for Finance and Business Gary Schultz and President Graham Spanier received some kind of notice about that 2002 incident and (6) Jerry Sandusky was allowed continued access to Penn State facilities, even after the 2002 alleged incident.

However, when it comes to the potential legal and moral culpability of Penn State officials, such as Paterno, Curley, Schultz and Spanier, only two events come into play: (1) the allegation that prompted the investigation by university police in 1998 and (2) the allegation made by the graduate assistant (subsequently revealed to be Mike McQueary) to Joe Paterno on 2 March 2002.

Part one of this article addressed the events of 1998, where one plausibly might suspect that officials at Penn State, including Paterno, had such knowledge. As I've concluded in Part One (see http://www.walter-c-uhler.com/Reviews/paterno1.html), there exists no evidence -- at this time -- that would allow anyone to responsibly, and thus ethically, assert that Joe Paterno or anyone else at Penn State had a clue about Sandusky's alleged dark side until 1998. I repeat, notwithstanding the sexual molestations that Sandusky allegedly committed up through 1997, there is no evidence that officials at Penn State, including Paterno, knew about them.

In 1998, however -- as I've written in Part One -- "an 11-year old boy (identified as Victim 6 in the November 2011 grand jury report) came home with wet hair and told his puzzled mother that he had showered with Sandusky at Penn State's athletic complex. The mother immediately reported the incident to the university police. The university police conducted an investigation and compiled a report running almost 100 pages, which convinced some subsequent investigators -- according to The New York Times, -- that "campus police officers truly wanted to make a case against Sandusky.'"

"Nevertheless, the district attorney (who subsequently disappeared) found insufficient reason to take the case to trial. As the Times reports: "According to people with knowledge of the current Sandusky case, the district attorney's decision in 1998 was a close call, even with the evidence the campus police had.'"

My examination of the few facts available led me to conclude that Joe Paterno either did not know about the 1998 police investigation -- or that he did, indeed, know about the investigation, but also knew that the DA found insufficient evidence to indict.

(Please note: Since the publication of Part One, The Altoona Mirror has written an opinion piece, "Offering Sandusky to PSU Altoona Troubling," which notes that, between late 1998 and early 1999, Joe Paterno and Jerry Sandusky met with President Spanier and Allen Meadows, then the CEO of Penn State's Altoona campus, to discuss the possibility of starting a football program there, with Sandusky as its head coach. Given the suspicions now swirling around Sandusky and the fact that university police investigated him in 1998, the author of the Mirror article finds the Altoona connection troubling.

Actually, had the author done his homework, he would have found a1982 Sports Illustrated column about Jerry Sandusky in which Joe Paterno expressed concerns about Sandusky not being able to become a head coach because of his commitment to The Second Mile. Paterno asserted that, "many people have talked to me about hiring him"but Jerry's been reluctant to talk to them because of all the commitments he has in the area." Thus, by working as a head coach at PSU Altoona Sandusky would have been able to pursue both objectives.

More surprising is the fact that, in 2000, Sandusky applied for the job of head football coach at the University of Virginia and ultimately was offered the job, only to lose it after contract negotiations became stalemated.

Nevertheless, after giving the Mirror's opinion piece considerable thought, I've concluded that there are as many innocent reasons to have Sandusky move to PSU Altoona or the University of Virginia as there are suspicious reasons. Thus, there is no reason to change the conclusions I reached in Part One.)

Consequently, based upon the evidence available to us thus far, we can stipulate that the events of 1998 -- the allegation, the police investigation and the DA's decision not to indict Sandusky -- constitute the only instance in Sandusky's entire career as a coach at Penn State, when he came under a cloud of suspicion. In other words, if Coach Paterno, Athletic Director Tim Curley, Vice President Gary Schultz (who had administrative responsibilities for the University police), Penn State's general counsel, Wendell Courtney, and President Graham Spanier learned anything about Sandusky's alleged dark side while he was still coaching at Penn State, they would have learned about it, thanks to the events of 1998.

Although we can't say with certainty what Joe Paterno knew about the 1998 police investigation of Jerry Sandusky and the DA's subsequent decision not to indict him, we can reasonably assume that such knowledge or lack of knowledge would have influenced how he handled the information given to him by then graduate assistant Mike McQueary on 2 March 2002.

Nevertheless, according to the November 2011 grand jury report devoted to "Victim 2," on the evening of March 1, 2002, McQueary witnessed Sandusky anally raping a young boy in a Penn State shower. According to the grand jury report: "The graduate assistant was shocked, but noticed that both Victim 2 and Sandusky saw him. The graduate assistant left immediately, distraught."

"The graduate assistant went to his office and called his father, reporting to him what he had seen. His father told the graduate assistant to leave the building and come to his home. The graduate assistant and his father decided that the graduate assistant had to promptly report what he had seen to Coach Joe Paterno, head coach at Penn State. The next morning, a Saturday, the graduate assistant telephoned Paterno and went to Paterno's home, where he reported what he had seen."

Thus, any person possessing the reading comprehension skills of a fifth-grader would be hard pressed to read that specific part of the grand jury report and not conclude that McQueary told Paterno that he witnessed Sandusky anally raping a young boy. But that is not what Paterno told the grand jury. Instead, he testified that McQueary told him that he "had seen Jerry Sandusky in the Lasch Building shower fondling or doing something of a sexual nature to a young boy."

Moreover, after publication of the grand jury report, Paterno took pains to assert: "It was obvious that the witness [McQueary] was distraught over what he saw, but he at no time related to me the very specific actions contained in the grand jury report."

On November 11, 2011, Sara Ganim further sharpened the apparent contradiction separating the testimony of McQueary and Paterno, when she reported: "Paterno said this week that he had stopped the conversation before it got too graphic. Instead, he told McQueary he would need to speak with his superior, Athletic Director Tim Curley, and with Schultz." [Harrisburg Patriot-News] (When I questioned her about the source behind her reporting, Ms. Ganim responded by saying it came from a public statement made by Scott Paterno, Joe's son.)

An even stronger reason to believe Joe Paterno can be found on page ten of the grand jury report. It reads: "Schultz did not ask the graduate assistant [McQueary] for specifics. No one ever did."

But, if we believe Paterno and the grand jury report on this point, we must then ask ourselves, "How do we reconcile such information with that part of the grand jury report that claims McQueary "went to Paterno's home and told him what he saw?'" If Paterno did stop McQueary's conversation "before it got too graphic," how could McQueary have "told him what he saw?"

That very question suggests that we don't really know what McQueary actually told Paterno in 2002. Moreover, given the fact that McQueary didn't testify to the grand jury until December 2010 and Paterno didn't testify until early 2011, one can be almost absolute certain that both McQueary and Paterno have creatively reconstructed what they saw and heard almost nine years earlier.

In Chapter 4 of his book, The Birth of Christianity, John Dominic Crossan attempted to answer the question: "Does Memory Remember?" Crossan examined the scholarly literature devoted to memory, including a very persuasive study conducted at Emory University, where psychology students were asked to complete a questionnaire about the Challenger spacecraft explosion (in January 1986), a mere day after it exploded. When representatives from Emory asked those same students the same questions three years later, they found their answers to be significantly different. These students had "constructed" different memories during those three years without realizing it -- leading Crossan to conclude: "Memory is as much or more creative construction as accurate recollection."

Like the stark fact of the Challenger explosion, it's unlikely that McQueary would creatively construct an anal rape, but surrounding details might have succumbed to creative construction. The same holds true, perhaps more so, for Paterno, who never had his mind riveted by the anal rape.

The possibility of creative construction -- as well as the possibility of intentional deception -- must be kept in mind, not only when examining the conflicting testimony of McQueary and Paterno, but also when examining the testimony of Athletic Director Tim Curley and Vice President Gary Schultz (who was in charge of campus police). They also testified in 2011 about an event that occurred in 2002.

Nevertheless, regardless of the "specifics" related in that conversation between McQueary and Paterno, they proved to be sufficient to persuade Paterno that allegations of sexual misbehavior by Sandusky were being made by McQueary and that such allegations needed to be reported up the administrative hierarchy.

Thus, according to the grand jury report, Paterno testified that he "called Tim Curley"Penn State Athletic Director and Paterno's immediate superior, to his home the very next day, a Sunday, and reported to him that the graduate assistant had seen Jerry Sandusky in the Lasch Building showers fondling or doing something of a sexual nature to the boy." (p. 7)

By reporting to Curley, who, administratively speaking, was a direct report to President Spanier, Paterno fulfilled the requirements of Pennsylvania's mandatory reporting law (23 Pa. Cons. Stat"6311), which requires that reports go to "the person in charge of the institution." Those people who rushed to castigate Paterno for not doing more might want to reconsider, given that the same law "does not require more than one report from any such institution, school, facility or agency."

According to Wendy Murphy -- a leading victim's rights advocate and nationally recognized television legal analyst -- in Pennsylvania "the law is explicit that employees need not report directly to outside authorities and can satisfy their reporting obligations by reporting only to a supervisor." But she adds, in "chain of command" states, employees who report directly to outside law enforcement and child protection service agencies face employment sanctions, including termination, for reporting outside the chain of command." [Wendy J. Murphy: "Prosecute Penn State for "chain of command' cover-up," The Patriot Ledger Nov. 14, 2011] Although it is hard to believe that Penn State might sanction someone for reporting outside the chain of command, the very same law that requires reporting also contains provisions for redress in the event an institution sanctions someone for issuing an unauthorized report.

Moreover, Wes Oliver, an associate professor at Widener School of Law in Harrisburg, has noted the unintended consequences that could occur if every report was filed directly with law enforcement.

"Law enforcement may get bombarded with false (information) from people who have axes to grind, want to make trouble and are seeking whistle blower status," said Oliver.

According to the most recent 2010 Child Abuse report by the state Department of Public Welfare, which investigates child abuse reports, 3,656 of the 24,615 reports investigated qualified as child abuse. ChildLine, the state's child abuse hotline, received 121,868 calls in total. [Caleb Taylor, the Pocono Record16 November 2011]

Did Joe Paterno go beyond the state's minimum requirements for reporting up the chain of command? Yes, if you believe that part of page 8 of the grand jury report where "Schultz testified that he was called to a meeting with Joe Paterno and Tim Curley, in which Paterno reported "disturbing' and "inappropriate' conduct in the shower by Sandusky upon a young boy, as reported by a student or graduate student."

Was Schultz lying? Or did the author(s) of the grand jury report edit out any mention by Paterno or Curley of Schultz's participation? Unfortunately, we lack sufficient information to answer either question.

What we do know -- and what this writer considers to be astounding, given all the media attention devoted to him -- is that Joe Paterno's testimony consumes but one small paragraph among the 18 paragraphs that address Victim 2, and but one small paragraph in the 23 pages summarizing the case against Sandusky, Curley and Schultz.

One the one hand, it's hard to believe that the grand jury would omit that part of Paterno's testimony that mentioned Schultz's participation in his meeting with Curley. One the other hand, unless Joe Paterno only spoke to the grand jury for 10 seconds, the grand jury report appears to have omitted most of Paterno's testimony.

If Shultz did participate in the meeting with Paterno and Curley, it would be in accord with the reporting of Sara Ganim, who wrote that Paterno "told McQueary he would need to speak with his superior, Athletic Director Tim Curley, and with Schultz." But what's critical, is the fact that McQueary was eventually able to make his allegations about Sandusky to the official who was administratively responsible for the university's police.

If Paterno was merely concerned with "covering his ass" -- now the consensus opinion among the thoughtless mob in America -- why would Paterno tell McQueary that he not only needed to talk to the Athletic Director, but also the Vice President in charge of University police? Both Curley and Schultz directly report to Spanier, so either one can "notify the person in charge of the institution." Thus, the insistence that Schultz be involved gains Paterno nothing in that realm. But, by including Schultz -- by insisting that McQueary meet with Schultz, as well as Curley -- Paterno guarantees that McQueary will be able to make his allegations to the person charged with administering the University police.

And if McQueary actually met with Curley and Schultz some ten days after the meeting between Paterno and Curley, didn't Paterno have sufficient reason to believe that he fulfilled his obligation to report sexual abuse AND put McQueary in touch with the person who could launch a police investigation?

None of the above definitively puts to rest the widespread suspicion that Paterno, Curley, Schultz and President Spanier participated in a cover-up, which assured that the police never would be brought into an investigation. Plans to cover up might best explain why it took approximately ten days before Curley and Schultz met with McQueary. State law, after all, requires reporting of such sexual assaults within 48 hours of notification. McQueary and Paterno performed their legal responsibilities to report immediately, Curley and Schultz did not. Plans to cover it up also might explain why Schultz never notified his immediate subordinate, the Chief of the University police.

Nevertheless, the fact that Paterno told McQueary to meet with Curley AND Schultz, that Paterno subsequently met with Curley, if not Schultz, to report something of a sexual nature between Sandusky and a young boy to within the 48 hours required by law, and the fact that McQueary subsequently met with Curley and Schultz -- without Paterno in the room -- all strongly suggest that Paterno not only did his part to foster an investigation, but also was willing to let the chips fall where they may.

These actions fully support Paterno's subsequent assertion: "As coach Sandusky was retired from our coaching staff at that time, I referred the matter to university administrators." The grand jury report, which looked for and found that Curley and Schultz engaged in a cover-up, concluded that Paterno performed his legal obligation, which is why he will be a witness, rather than a defendant in the trials against Sandusky, Curley and Schultz.

Even Pennsylvania state police Commissioner Frank Noonan acknowledged that Paterno fulfilled his legal obligation when he forwarded McQueary's allegations to university administrators. Finally, in early November 2011, the Harrisburg Patriot-News reported praise for Paterno: "sources said the deputy state prosecutor handling the case said that Paterno did the right thing, and handled himself appropriately in 2002 and during the three-year investigation that ended Friday."

Consequently, the evidence available to us thus far not only clears Paterno of any suspicion that he engaged in a cover-up -- an extremely far-fetched suspicion, in the first place -- but also that Paterno earned praise for performing his legal duty. Arguably, by insisting that Schultz be brought in, Paterno went beyond his legal obligation.

Unfortunately, such evidence proved worthless as jackals in the news media seized upon the hysteria surrounding the news of despicable sexual molestation of young boys by Jerry Sandusky to transform a "Jerry Sandusky scandal" into a "Penn State scandal" and then a "Joe Paterno scandal." Now, there's no questioning why the "Jerry Sandusky scandal" emerged. Moreover, given that Sandusky was once employed by Penn State (and maintained close ties with Penn State), and given the grand jury report and the subsequent indictments of Penn State's Athletic Director, Tim Curley, and the Vice President responsible for overseeing the University police, Gary Schultz, one understands how the "Sandusky scandal" became the "Penn State scandal." But, how the "Sandusky scandal" and the "Penn State scandal" became the "Joe Paterno scandal" is much less easy to understand.

This is the question that I will address in Part Three of this article.

Submitters Bio:

Walter C. Uhler is an independent scholar and freelance writer whose work has been published in numerous publications, including The Nation, the Bulletin of the Atomic Scientists, the Journal of Military History, the Moscow Times and the San Francisco Chronicle. He also is President of the Russian-American International Studies Association (RAISA).