SHORT TAKES


February 11, 2013

The Paternos' Unconvincing Response

After the indictment of former assistant football coach Jerry Sandusky, Penn State did something quite rare for an institution of higher learning facing scandal--it hired a respected outside investigator (former FBI director Louis Freeh) and gave him total access to the relevant university records, including e-mails between key administrators. The resulting Freeh Report used senior administrators' own words (including the e-mails of former president Graham Spanier and former athletic director Tim Curley, both of whom are now indicted) to show that the university's top leadership made a conscious decision not to report to police a report that a graduate football coach had witnessed Sandusky raping a boy in the showers at Penn State's football facility.

Regarding former football coach Joe Paterno, Freeh found (thanks to an e-mail from Curley) that the administrators reversed a decision to report Sandusky to police after Curley spoke to Paterno, and that Paterno (contrary to what he told the Sandusky grand jury) knew of a 1998 investigation into Sandusky for possible child rape. Finally, the report cited an excessive deference to football and football culture as an explanatory factor in the outcome of the case, citing in particular the actions of a janitor who had witnessed Sandusky raping another boy in the football facility, who didn't come forward lest he be fired for making a report that harmed the team's carefully cultivated public image.

The Freeh Report was hardly a hit-job on Paterno. Freeh maintained that there was no relationship between Sandusky's seemingly coincidental retirement in 1998 (the coach ultimately stayed on for another year) and the child rape investigation of the same year. And the former FBI head didn't include in his report tightly-sourced reporting from the Chronicle of Higher Education showing that--despite his reputation as an academics-friendly coach who stressed the moral values of his players--Paterno had interfered in Penn State disciplinary proceedings against his players.

Having authorized such a comprehensive review, the university leadership accepted Freeh's findings and implemented most of his proposed reforms. (As Stuart Taylor and I have noted elsewhere, the contrast with Duke's obfuscation and refusal to come to grips with the university's failure in the lacrosse case is instructive.) The NCAA, in turn, accepted Penn State's own report and imposed harsh sanctions on the university's football program.

Some reaction to Freeh's Report all but proved his claim about the excessive influence of a football culture at Penn State. A group of former faculty senate leaders--speaking, they claimed, as "scholars"--rejected his findings with reasoning that wouldn't pass muster in a high school class. Spring 2012 brought election of two new trustees (Ryan McCombie and Anthony Lubrano) who seemed to view their chief task as not safeguarding the university but restoring Paterno's legacy. A similarly-motivated, self-described alumni group,Penn Staters for Responsible Stewardship, has spent months spinning implausible and often wildly counterintuitive interpretations of the evidence that Freeh presented. And the state's governor, Tom Corbett, has sued the NCAA, seeking to annul the sanctions to which the university leadership agreed.

The most important document from these Penn State bitter-enders was released Sunday by the Paterno family, who had directed their lawyers to investigate the Freeh Report. The report's subtitle, "The Rush to Injustice Regarding Joe Paterno," avoided all subtlety. After an introduction by Paterno's attorney, the report included three separate documents: 40 pages produced by former Pennsylvania governor and U.S. attorney general Dick Thornburgh reviewing the Freeh Report's treatment of Paterno; a 97-page effort by a former FBI profiler attacking Freeh's handling of how the university should have handled the allegations against Sandusky; and a 45-page document penned the founder of The Johns Hopkins Sexual Disorders Clinic.

 The Paterno family report did little more than expand on claims the family made the day after the Freeh Report was released, coupled with counterintuitive interpretations of the evidence that Freeh assembled. The promised new evidence was rare.

Beyond extremely heated rhetoric and frequent straw-men arguments, the Paterno family document leveled three central critiques against the Freeh Report. First, the report suggests that the Freeh report was so procedurally flawed that it must be viewed as inaccurate. For instance, the Paterno family notes that regarding three key witnesses, Freeh relied only on contemporaneous e-mails sent by former AD Curley and former senior vice president Schultz, and on the sworn testimony of former assistant football coach Mike McQueary. (Curley and Schultz are under indictment, and they declined to speak with Freeh under advice of counsel; the state attorney general asked Freeh not to interview McQueary.) Yet the Paterno Report authors didn't interview any of these people, either; the report authors didn't speak with McQueary at all, and could get no closer to Curley and Schultz than their attorneys, who unsurprisingly held Paterno blameless--as, of course, they hold their clients blameless--without reconciling their assertion with the contemporaneous e-mails Freeh uncovered.

On a second procedural matter, the Paterno Family faulted Freeh for relying solely on a cache of e-mails retained by Schultz to analyze the events of 2001, since the university's full e-mail file dates only from 2004. (Schultz hadn't produced these e-mails to prosecutors; Freeh's investigators uncovered them.) As Dan Wetzel of Yahoo Sports pointed out, however, the Paternos' argument on this point appeared to rest on a belief that Schultz, for a reason or reasons unknown, chose to retain only those e-mails that inculpated him and other key PSU figures in wrongdoing, while discarding any documents that might have exonerated them. "While there may," Wetzel noted, "have been emails written that could exonerate Paterno, the fact Schultz didn't have them suggests that throughout this 13-year time frame the vice president purposely kept a file that specifically excluded anything that might help Joe Paterno, just in case it blew up into a scandal larger than anyone at Penn State could've imagined.Why would he do that? Why would he specifically try to hurt Paterno? Possible? Anything is possible. But again, is this even remotely probable?"

The procedural path demanded by the Paterno Family would have delayed--likely permanently--any independent report from Penn State, much less action from the NCAA. At the least, the Paternos' recommended procedural posture would have meant that any report would have depended on the willingness of Curley, Schultz, and McQueary to interview with Freehand future technological developments that might have allowed Penn State to recover all of its 2001 e-mails.  But the Paterno Family Report offered no explanation of how or why the family's preferred procedural path would have altered Freeh's conclusions, or would have better served the university.

Finally, beyond the unconvincing procedural complaints, the Paterno Family contended that Freeh misinterpreted the evidence he did collect. For instance: Despite several contemporaneous e-mails implying that Paterno knew of a 1998 investigation of Sandusky (and despite the common-sense belief that a figure as well-connected as Paterno surely knew of a police investigation into his most prominent assistant coach), the Paterno Family maintained that the late coach truthfully told the Sandusky grand jury that he knew nothing of the 1998 inquiry.

Until release of the report, the Paterno family had implied a lapse of memory to explain the grand jury testimony; one of Paterno's sons told reporter Sara Ganim that "if (Paterno) knew, he must have forgotten." In the report, the family took a different course, suggesting that 1998 e-mails about "Coach" desiring to keep informed about the investigation referred not to Paterno, but instead to Sandusky, or perhaps even the coach of another team. No evidence--inferential or otherwise--exists to support such claims, which, if true, would mean that AD Curley was conspiring with the assistant coach, improperly passing him information about police activities, all the while concealing this information from Paterno. The family's report examined each of Freeh's findings regarding Paterno in a similar, less-than-credible fashion.

In defense of its authors, the Paterno Report had an extremely difficult task. On the one hand, the authors needed to vigorously represent their clients by presenting every conceivable argument against Freeh. On the other, the report needed to come across as fair-minded, something more than a document by and for Paterno apologists. In the end, the authors failed to achieve this balance, and too often seemed to focus on satisfying the Paternos' understandable disdain toward Freeh's findings.

Some examples:

Trying to present Paterno as a sympathetic victim, the report incredibly cited "the removal of the now ex-head football coach Joseph Paterno's honorary statue from a previous place of prominence." Trying to position Paterno as a figure who lacked the power to shape university decision-making, the document faulted the Freeh Report for stating "without any credible evidence that Mr. Paterno wielded excessive influence at the University." (Universities, it seem, routinely build statutes of existing but non-influential football coaches, and then position them in a "place of prominence" on campus.) And trying to minimize Paterno's actions, the report cites an expert who claimed that McQueary presented Paterno with "some amorphous incident" that "at worst" caused Paterno to believe that "Sandusky was a touchy-feely guy who had boundary issues." Yet Paterno himself testified to the grand jury that McQueary told him that Sandusky "was fondling . . . a young boy" in the football building showers, and that "obviously, [Sandusky] was doing something with the youngster. It was a sexual nature." How that testimony described an "amorphous incident" the expert never revealed.

Perhaps the report's strangest item came from Dr. Fred Berlin, founder of The Johns Hopkins Sexual Disorders Clinic. Berlin accuses Freeh of acting on "sketchy" information and making "unsubstantiated inferences." Then, despite this professed concern with acting on "sketchy" information and making "unsubstantiated inferences," Dr. Berlin offered commentary on the "character" of Paterno (a man he never met), since "evidence of one's character is often more publically accessible" The conclusion of the Paterno family's hired expert? The late coach "was well known to be an honest man of integrity." The Paterno Family Report did not explain why Berlin, an expert on pedophilia, would have any special expertise to evaluate Paterno's character.

It's hard to imagine that anyone but the truest of true believers will be persuaded by this document.

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