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The case against Joe Paterno: Weak to non-existent on the current record

I haven’t followed the Penn State child molestation scandal closely. My interest in sports is an interest in sports, not investigations of crimes by people involved (or formerly involved) with sports.

Nonetheless, I am aware that a consensus exists that former Penn State football coach Joe Paterno acted improperly in connection with Penn State’s response to allegations of child molestation committed by one-time assistant coach Jerry Sandusky. This consensus led to the removal of a statue of Paterno, whose contributions to Penn State as a coach and financial contributor were enormous.

The consensus emerged from the report of Louis Freeh regarding Penn State’s actions related to the sexual abuse committed by Sandusky. But a friend of mine — a top-notch lawyer and former federal prosecutor — has carefully reviewed the Freeh Report. He concludes that the Report does not establish wrongdoing by Joe Paterno. Having now looked at the Freeh Report, I agree.

Here is what my friend wrote:

I believe the media, the Freeh Report, and many others have misrepresented Joe Paterno’s culpability in the Jerry Sandusky matter. The evidence against Mr. Paterno amounts to virtually nothing. After more than 430 interviews and a review of more than 3.5 million documents and other information, the Freeh Report concludes that three emails from other people – former Penn State President Graham Spanier, Athletic Director Timothy Curley, and Senior Vice President Gary Schultz – prove that Mr. Paterno was a co-conspirator in a cover-up. I do not read the evidence in the Freeh Report that way, and I do not believe the conclusions about Mr. Paterno are either warranted or fair.

The claim seems to be that Mr. Paterno knew about a 1998 allegation and did nothing, and that in 2001, when he learned about Mike McQueary’s information, he waited a day before he reported the information to the athletic director (Curley) and the vice president in charge of the University Police (Schultz) and then did nothing else.

First, with respect to the 1998 incident, the Freeh Report says that several authorities promptly investigated and reviewed the matter, including the Department of Public Welfare, the University Police Department, the State College police, and the local district attorney’s office. Freeh Report at 42-47. A “counselor” named John Seasock issued a report that found “no indication of child abuse.” Freeh Report at 42-46. Mr. Seasock interviewed the alleged victim and determined that “there seems to be no incident which could be termed as sexual abuse, nor did there appear to be any sequential pattern of logic and behavior which is usually consistent with adults who have difficulty with sexual abuse of children.” Freeh Report at 44 (quoting Mr. Seasock’s 1998 evaluation of the alleged victim). The Freeh Report adds that Mr. Seasock “couldn’t find any indication of child abuse.” Freeh Report at 45.

The police investigated and “did not question Sandusky at this time,” and the Freeh Report says that “the local District Attorney declined to prosecute Sandusky for his actions.” Freeh Report at 45-46. A “senior administrator” explained that “the case against Sandusky was ‘severely hampered’ by Seasock’s report.” Freeh Report at 46. The University Police also investigatedthe matter and unlike the local police, they interviewed Sandusky. Sandusky claimed “nothing happened” (Freeh Report at 46) and the University Police concluded that “no sexual assault occurred.” Freeh Report at 47.

The only evidence of Mr. Paterno’s involvement is a passing reference in an email from Curley to Spanier and Schultz that says that Curley “touched base with the coach. Keep us posted.” Freeh Report at 20, 48. A second email from Curley to Schultz that says “Coach is anxious to know where it stands.” Freeh Report at 20, 48. There is no other information about Mr. Paterno’s involvement in the incident. In fact, the Freeh Report does not even establish that the references to “Coach” refer to Joe Paterno. The most it can and does say is that “[t]he reference to Coach is believed to be Paterno.” Freeh Report at 49. The Freeh Report cites no evidence to support this assertion, but even if “Coach” refers to Coach Paterno, what do these emails prove? The answer is: nothing. At most, these emails suggest that Mr. Paterno was concerned and wanted to know whether Sandusky was guilty of any wrongdoing.

Of course, if Mr. Paterno did express concern about the matter, then the question becomes: what did anyone tell him about the allegations and the investigation?

The Freeh Report provides no answer to this question. The Report does not provide any evidence about what Joe Paterno knew about the 1998 allegations against Sandusky. The Report does not provide any evidence about what Mr. Paterno did or said, or what anyone said to Mr. Paterno. Indeed, the Freeh Report suggests that both law enforcement and the University police agreed that nothing improper happened and that the allegations lacked merit. Did anyone tell Joe Paterno about those findings?

The Freeh Report concludes that the “record” is “not clear as to how the conclusion of the Sandusky investigation was conveyed to Paterno.” Freeh Report at 51. The Report includes many statements that assert things like “nothing in the record indicates that Joe Paterno spoke with Sandusky.” See, e.g., Freeh Report at 51. The absence of evidence or information proves only that Mr. Freeh did not find evidence. It does not affirmatively prove anything about Mr. Paterno.

Furthermore, despite the lack of evidence about Mr. Paterno’s culpability with respect to the 1998 incident, the Freeh Report accuses Mr. Paterno of “allow[ing] Sandusky to retire in 1999, not as a suspected child predator, but as a valued member of the Penn State football legacy.” Freeh Report at 17. The Freeh Report’s expression of outrage may sound compelling now, with the benefit of hindsight and the evidence that now exists about Sandusky’s criminal misconduct. But given that (1) law enforcement officials and other people investigated the 1998 incident and found no wrongdoing; (2) Seasock’s report exonerated Sandusky; (3) the District Attorney declined to prosecute the case; (4) Sandusky denied the allegations; and (5) the complete lack of evidence about Mr. Paterno’s knowledge, involvement, and actions, it is difficult to see how Mr. Paterno can be subject to ridicule because he “allowed” Sandusky to retire “not as a suspected child predator.”

As to the issue about whether Joe Paterno should have done more with the McQueary information, I keep coming back to one critical missing piece of evidence: what did Curley and Schultz tell him? Schultz, in particular, is the important actor here because he was the top university official in charge of the University Police. Freeh Report at 33. If JoePa wanted to cover this up, he would never have reported McQueary’s information to Curley and Schultz within a day of receiving it. Is waiting one day on a weekend evidence of a cover-up? Mr. Freeh and others seem to think so. The Freeh Report repeatedly cites Mr. Paterno’s comments about not interfering with the weekend as evidence of some kind of evil intent. But, again, this proves nothing. Would the Report conclude differently if Mr.Paterno had spoken with Curley and Schultz on Saturday evening instead of Sunday?

Furthermore, if Mr. Paterno had reported the McQueary information to me (were I, like Schultz, the official in charge of the University Police), I would have told him to keep his mouth shut going forward and let the authorities handle the matter. Otherwise, Mr. Paterno could have tainted the investigation. And, because he was a potential trial witness (to McQueary’s prior consistent statements, see Federal Rule of Evidence 801(d)(1)(B) and Pennsylvania Rule of Evidence613(c)), any further statements or action by Mr. Paterno could have become cross-examination fodder for the defense. Any further action by Mr.Paterno could only have damaged the integrity of the investigation and any prosecution against Sandusky.

Indeed, Mr. Paterno explained his actions before he died by saying that “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.” Freeh Report at 77-78. This statement makes perfect sense, and the notion of a football coach supervising a criminal investigation is ridiculous. It is very possible that Curley or Schultz or both told Mr. Paterno to stay out of the matter; in fact, Schultz should have told him as much. But we don’t know because Schultz and Curley are under indictment and not talking, Paterno is dead, and the Freeh Report did not find any information about this issue.

Much of the case against Mr. Paterno seems to rely on (1) the theory that the Athletic Director, Curley, was JoePa’s “errand boy”; and (2) an email dated February 27, 2001 from Curley to Schultz and Spanier which says that Curley gave the matter “more thought” after “talking it over with Joe” and was “uncomfortable with what we agreed were the next steps.” Freeh Report at 74-75. But the “errand boy” evidence amounts to a reference by an unidentified “senior Penn State official” (page 75), and what does it prove anyway? That one person viewed Curley as Paterno’s “errand boy”?

There is no evidence that Curley-as-errand-boy covered up because Joe Paterno told him to do so. And the February 27 email at most suggests that Mr. Paterno spoke with Curley. It does not say what Curley and Paterno discussed, and without any explanation from either Curley or Paterno, it is absurd to read into this that Mr. Paterno was the puppet master behind a coverup orchestrated by Curley, Spanier, and Schultz.

Mr. Paterno was a football coach, not an expert in criminal law or investigations, and this notion of him as some kind of omnipotent and omniscient God who callously turned his back on a serial child molester is unsupported by any evidence.

This is a rather sorry record upon which to condemn Joe Paterno.

People are rarely as good or as bad as they seem at any given time. In Paterno’s case, however, I believe that the old, highly favorable narrative — to which some of the same media types who condemn him now contributed — is much closer to the mark than the revisionist narrative.

UPDATE: More here.

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