Did Paterno Get a Bad Call?

I have a nagging feeling that Penn State football ex-coach Joe Paterno may have lost the game on a bad call by the referee(s).  Paterno, although not charged criminally, has been fired and vilified for what many suspect was his involvement in a cover-up to protect Penn State and its football program.  While Paterno might arguably be faulted for a moral lapse for not personally reporting the allegation directly to public authorities, he did, promptly and probably accurately, report what he had been told to his administrative higher-ups, including the official in charge of the university police, one of the law enforcement agencies with jurisdiction over on-campus crime.

The basic facts as regards Paterno, according to the Pennsylvania grand jury report (see here), are as follows:  A 28-year old Penn State graduate assistant (known to be Mike McQueary) in March 2002 observed Jerry Sandusky, a former Penn State assistant coach who had access to its football facilities, in a shower room subjecting a boy estimated to be 10 years old to anal intercourse.  The following day, a Saturday, McQueary reported to Paterno "what he had seen."  The next day, a Sunday, according to Paterno he called to his home Tim Curley, the university athletic director and his immediate nominal supervisor, and told Curley that McQueary had seen Sandusky "fondling or doing something of a sexual nature to a young boy."  Subsequently, at a meeting with Gary Schultz, the Penn State senior vice president who oversaw the campus police, Paterno reported (according to Schultz) that Sandusky had engaged in "disturbing" and "inappropriate" conduct in the shower with a young boy.

Approximately one and one half weeks after the shower incident, in a meeting with Curley and Schultz, McQueary testified, he told them he had observed Sandusky having anal sex with a boy.  Paterno was not present at that meeting.

Schultz, who was aware of an allegation against Sandusky in 1998 that was investigated with no resulting arrest, did not report the incident to the police.  Curley and Schultz reported the incident to university now ex-president Graham Spanier as Sandusky "horsing around" in the shower with a "younger" child.  Spanier testified that, as reported to him, the incident was not of a "sexual nature," and he made no report to authorities.

Curley was indicted for making a materially false statement under oath for denying that McQueary (presumably in the meeting not attended by Paterno) had told him that Sandusky had engaged "in sexual conduct or anal sex."  Schultz was indicted for making a materially false statement under oath that the allegations made by the graduate assistant were "not that serious" and that he and Curley "had no indication that a crime had occurred."

Both Curley and Schultz were also charged with the then "summary offense" (less serious than a misdemeanor) of failure to report suspected child abuse.  The applicable Pennsylvania statute (since amended), according to the grand jury report, mandated reporting by "the person in charge of the school or institution" to the Department of Public Welfare.  Presumably that "person in charge" was ex-president Spanier, and Curley and Schultz, it seems, were charged as persons whose alleged playing down of the incident caused Spanier not to make a report.

The criminal case against Curley and Schultz, and the moral case against Paterno, is based to a considerable extent on the accuracy of the un-cross-examined testimony about an incident 9 years ago by McQueary, whom the grand jury, according to the report, found "extremely credible."  It is far from clear exactly what McQueary told Paterno.  Indeed, the grand jury report, which otherwise details what McQueary reported to Curley and Schultz with some specificity, describes what McQueary told Paterno only in very broad strokes -- "what he had seen."  Paterno in a recent statement claimed McQueary did not mention the "very specific actions."  Thus, it appears questionable whether McQueary had reported to Paterno that Sandusky and the child had engaged in anal sex.  Accordingly, when Paterno reported to Curley that he heard Sandusky was "fondling or doing something of a sexual nature," he may well not have been watering down McQueary's report.

Indeed, Paterno is likely the major corroborative witness in the prosecution case against Curley and Schultz.  (The boy, it appears, had not yet been identified.)  The report states that Schultz and Curley "were notified by two different Penn State employees of the alleged sexual exploitation," those witnesses apparently being McQueary and Paterno.  Paterno, Pennsylvania Attorney General Linda Kelly has announced, is not a criminal target.

The public, including me, sometimes feels some satisfaction when it learns of the fall of the rich and famous and the sports figures whom we believe get privileged treatment, and sometimes jumps to hasty conclusions of guilt which turn out to be wrong -- witness the Duke lacrosse players and probably Strauss-Kahn cases.  The grand jury report, most likely written by the prosecution, even while presenting the prosecution case without any challenge by the defense, does not convince me that Paterno did anything wrong -- criminally, civilly or morally.

It may well be that it will ultimately be revealed that Paterno deliberately minimized Sandusky's reported conduct -- and participated in a cover-up -- or that his failure to assume the responsibility to report was a grievous error.  The grand jury report did not concern moral guilt.  And perhaps the prosecutors went out of their way not to criticize Paterno, who, it appears, will be a key witness for them at trial.

Perhaps Paterno acted or failed to act to avoid embarrassment to the university, the football program or himself and/or to protect a colleague from arrest and prosecution, or both.  Perhaps he chose not to go directly to the police or welfare agency for the same or similar reasons.  Paterno, after all, as a coach no doubt believes that "the team" comes first.  He is, as Duke basketball coach Mike Krzyzewski has intimated, also a creature of a different generation -- a generation which believed strongly in personal loyalty and was reluctant to "name names."

The grand jury report itself, however, does not make, and does not support, an allegation that Paterno deliberately participated in a cover-up.

(goldman)