Tuesday, July 17, 2012

Freeh Report on Paterno Reaches Speculative But Reasonable Conclusion

Joe Paterno was buried a second time last week -- partly by a report of former judge and FBI Director Louis Freeh and partly by accounts like that of the New York Times, which in a four-column lead story headlined "Abuse Scandal Inquiry Damns Paterno and Penn State," wrote "Mr. Freeh's investigation makes clear that it was Mr. Paterno . . . who persuaded the university president and others not to report Mr. Sandusky to the authorities . . . ." (emphasis added).  See here.  A reading of the report, however, shows that its conclusions as to Paterno are based on hearsay, innuendo and surmise.  While a report such as the Freeh Report certainly need not be based on court-admissible testimony, if indeed the evidence referred to in the report constituted the sole basis for a criminal and/or civil charge against Paterno, the case undoubtedly would be thrown out and would not reach a jury.

The relevant evidence involving Paterno is as follows:

  • In May 1998, with respect to an allegation that Sandusky had showered with an eleven year-old on the Penn State campus, Tim Curley, the Penn athletic director, notified his superiors that he had "touched base" with Paterno about the incident and days later sent to them an email "Anything new in this department?  Coach [Paterno] is anxious to know where it stands."
  • In February 2001, after he observed Sandusky sexually molesting a youth in a Penn State shower room, Mike McQueary, a graduate assistant, reported the incident to Paterno, who told him, "You did what you had to do.  It is my job now to figure out what we want to do."  The following day, a Sunday, Paterno reported the incident to Curley and Gary Schultz, a Penn State vice-president.  Paterno waited a day or so not to "interfere with their weekend."
  • Later in the month, Graham Spanier, the Penn State president, Schultz and Curley devised an action plan which included reporting the incident to the state welfare agency.  A day or so later, Curley emailed Schultz and Spanier and said that he had changed his mind about the plan "after giving it more thought and talking it over with Joe [Paterno] yesterday," and now felt that they should instead tell Sandusky to seek professional help and not report him to the welfare authorities unless he did not cooperate.

The first item, the 1998 Curley email, merely demonstrates that Paterno showed an interest in what was happening with reference to the 1998 incident, which ultimately was reported to both the welfare department and the local prosecutor and resulted in no findings or charges.  Paterno reportedly in 2011, after the incident involving Sandusky's 2001 conduct and the failure to report it to authorities raised public attention, denied that he was aware of the 1998 incident.  In fact, Paterno's testimony in the grand jury in which he purportedly denied any such knowledge was in response to an imprecise, general and unfocused question, and his answer was accordingly unclear.  Additionally, the reported statement denying any prior knowledge was by his "family" and not by him.

In any case, while a denial, if made directly by Paterno or even an authorized agent, might arguably be admissible in court as evidence of consciousness of guilt, such evidence is weak proof of guilt since even wholly blameless people often make false statements distancing themselves from wrongdoing.

The second item, Paterno's response to McQueary is by itself of little moment and says no more than that Paterno, having been apprised of the incident, would now have to figure out what he and the others will do.  Of course, one can read into that facially bland statement a more sinister meaning -- that Paterno intended to tell McQueary to remain silent.  Such a meaning, however, is supported only by surmise and suspicion.  The report also states that Paterno waited a day before reporting the information to Curley and Schultz so as not to "interfere with their weekends."  This one-day delay is not meaningful.

The third item, Curley's change of mind after "talking it over with Joe," might, not unreasonably, albeit with a considerable leap, be construed to indicate that Paterno suggested not reporting the incident to the authorities.  However, it might also be that Curley changed his mind on his own after airing his thoughts with Paterno and deciding that the earlier plan was not preferable.  It is, of course, also possible that whatever Curley wrote, his mention of discussions with Paterno (without any direct or indirect report of Paterno's own views) was an attempt by Curley to minimize or shift personal responsibility from himself.  In any case, any probative value this email has as to Paterno's intent is also based on speculation.

Freeh himself seems to recognize that his conclusions are far from "clear."  He mentions that Curley and Schultz contended that they acted "humanely" and sought "the best way to handle vague and troubling allegations," that Paterno had told a reporter he had "backed away and turned it over to . . . people I thought would have a little more expertise," and that Spanier had denied knowledge "Sandusky was engaged in any sexual abuse of children."

He then rejects these explanations and concludes, "Taking into account the available witness statements and evidence, the Special Investigative Counsel finds that is more reasonable to conclude that, in order to avoid the consequences of bad publicity, the most powerful leaders at the University -- Spanier, Schultz, Paterno and Curley -- repeatedly concealed critical facts relating to Sandusky's child abuse from the authorities, the University's Board of Trustees, the Penn State community, and the public at large" (emphasis added).  During a press conference specifically focusing on Paterno's culpability, Freeh, seemingly inconsistently with the qualified "available witness statements and evidence" language of the report, appeared to exaggerate, "There's a whole bunch of evidence here."  He continued, "And we're saying that the reasonable conclusion from that evidence is that [Paterno] was an integral part of this active decision to conceal" (emphasis added).

I tend to agree that Freeh's conclusion is the "more reasonable" hypothesis, but I do so based more on a visceral feeling and some understanding of Paterno's power and status at the university than an evidentiary basis.  The "facts" demonstrating Paterno's "active" role in the cover-up are insubstantial and equivocal.  The case against Paterno is, as a Scotch jury might say, "not proven."  Perhaps we should require more substantial proof before we topple Paterno's statue -- figuratively and actually.

(goldman)

http://lawprofessors.typepad.com/whitecollarcrime_blog/2012/07/freeh-report-on-paterno-lacks-substantial-evidentiary-basis.html

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Comments

So far this is the best article I’ve read on the Sandusky scandal. It is so much better to read an article by someone who is intelligent that analyzed the Freeh report instead of all the people who aren’t and haven’t read the report. People in the media know what the public, at large, wants to hear and they give them exactly what they want. Their ratings go up because they are pandering to the emotional desires of the public instead of making a fair impartial analysis of the facts. Not too many people would invest any time in reading the report, they simply accept Freeh’s conclusion as fact. The other side of the coin has the diehard Paterno supporters who will not accept any evidence that would implicate Joe Paterno in a cover-up. The truth probably lies somewhere in between these two extremes and may come out during the perjury trials of Gary Schultz and Tim Curley. But for now with nothing else to go on this article is our best source of the truth.

Posted by: Jim | Aug 14, 2012 6:47:57 AM

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