Friday, July 13, 2012

Freeh Report: So much Swiss Cheese!


Poor Louis Freeh.  He was hired by the Trustees of Pennsylvania State University to conduct an investigation into the events involving Jerry Sandusky’s sexual abuse of children on campus and the administrators who essentially were responsible for not reporting it to the police or the Pennsylvania Department of Welfare.  Freeh was tasked with finding out who did what and why and when they did or did not act. 

This was a private investigation conducted by the former director of the FBI.  Hired by the Trustees in the wake of a total insurrection after they fired Joe Paterno late last year, without apparent just cause.  Without apparent just cause.  All they said at the time was, “He should have done more.” 

Sandusky is gone, convicted of enough charges of sexual abuse against minors to lock him away for two lifetimes. 

Spanier is tainted fish, suspended, never to return as President of the University.  He will never again work as such.  He may not ever work again after what he engaged in with Curley and Schultz. 

Curley and Schultz are awaiting trial on perjury charges that they lied to the Grand Jury.  It is likely that the perjury charges will be dropped against Curley and Schultz.  Memory of events and the order of events, vagueness in notes and emails, and alternate interpretations of notes and emails will make the case extraordinarily difficult to rosecute, and rightfully so. 

So, why Joe Paterno?  Why go after the legendary coach?  “Because he should have done more?” 

Who should have done more?

How about McQueary and his father?  Should they have reported the incident McQueary says he witnessed?  Of course they should have!  Are they being penalized?  Well, McQueary is.  He is suspended.  And rightfully so.  We will return to McQueary shortly. 

How about Curley and Schultz and Spanier?  Maybe.

How about the local attorney called and asked for advice, and paid for that advice?  Is he not an officer of the court and bound to report crimes?  The criminal was not a client so there was no privilege attached. 

And maybe therein lies the crux of the matter. 

From the beginning, there has been great confusion as to exactly what McQueary saw and when he saw it [2001 or 2002], and most importantly, how he reported it to his father [never explored], to Paterno [several different variations exist], to Curley and Schultz [those same variations exist as they do with McQueary’s report to Paterno], and to the Grand Jury [very different than what Paterno, Schultz, and Curley remember, or recorded in notes and emails.] 

Let us make something very clear here:  Joe Paterno did not use email.  Joe Paterno probably did not use computers, unless someone set up for him what they wanted him to see, like films of a potential recruit on a prep recruit ratings site.  More than likely, Joe had one of those large key, large print cell phones…if he had a cell phone at all. 

Why does McQueary suddenly remember clearly what he said to each man, Paterno, Curley and Schultz ten years ago, and their emails and notes [Schultz’s and Curley’s] present a much different and far more vague account that McQueary presented then? 

Here is an email from Curley to Spanier and Schultz a day after discussing the situation with Joe Paterno.  In Freeh’s mind, as in the minds of the mass media, it is the smoking gun that puts Paterno, et al into the cover-up conspiracy. 

“On Tuesday, February 27, 2001, Curley emailed Schultz and Spanier:
‘I had scheduled a meeting with you this afternoon about the subject we discussed on Sunday.  After giving it more thought and talking it over with Joe yesterday-- I am uncomfortable with what we agreed were the next steps.  I am having trouble with going to everyone, but the person involved.  I think I would be more comfortable meeting with the person and tell him about the information we received.  I would plan to tell him we are aware of the first situation.  I would indicate we feel there is a problem and we want to assist the individual to get professional help.  Also, we feel a responsibility at some point soon to inform his organization and [sic] maybe the other one about the situation.  If he is cooperative we would work with him to handle informing the organization.  If not, we do not have a choice and will inform the two groups.  Additionally, I will let him know that his guests are not permitted to use our facilities.  I need some help on this one.  What do you think about this approach?’”
Freeh, p.74

This is a curiosity in and of itself.  It is probably the most crucial part of the case, the single most important piece of evidence that cries out ‘cover-up!’  Indeed, it is the piece of evidence that shows the alleged ‘cover-up’ first being proposed.

Or does it?  “After giving it more thought and talking it over with Joe yesterday-- I am uncomfortable with what we agreed were the next steps.”  He does not say ‘After talking it over with Joe yesterday and giving it more thought—I am uncomfortable with what we agreed were the next steps.’  This is important.  This is the sentence that pull’s Joe Paterno into the alleged cover-up, at least in Freeh’s mind [and of course, that of the press.]

There is no record of the conversation between Curley and Paterno.  With Paterno dead, we will eventually get [maybe] an accurate description of what that conversation went like.  Nevertheless, Curley was already having doubts about reporting the incident to the Police and the Department of Welfare BEFORE he went to see Joe Paterno.

So Freeh actually makes a quantum leap of faith to connect Joe Paterno to the cover-up. 

It stretches credulity to think that Joe would counsel or condone a cover-up if he thought there was enough evidence to go on. 

Joe is revered as someone who spent his life helping others become a success.  There is no arguing that fact. 

So, then, perhaps Curley and Schultz are telling the truth after all [and maybe Joe Paterno was, too!], and perhaps that most credible of all witnesses, Mike McQueary, on whose testimony the whole investigation was instigated, and who was the only third party witness to a crime committed by Jerry Sandusky to come forward, maybe did not report it to Paterno and then to Schultz and Curley the way he said he did.  Joe did not remember the word “sexual” when recalling McQueary’s report to him.  Neither did Schultz or Curley. 

Harken back a bit farther, to the 1998 incident.  A worried mother reported Sandusky’s shower antics to the police, who investigated.  Joe was aware of the investigation.  Joe followed up on the investigation.  When no charges were filed, what was Joe Paterno to think?  Does anyone in their right minds think that Sandusky wasn’t doing this for many years?  Does anyone in their right minds think that if it had come to light to any of Joe’s staff or to Joe himself during those decades of Sandusky coaching under Joe, that Joe would not have taken steps to handle it properly?  Nothing had occurred prior to the 1998 report that would have aroused suspicions.  When cleared of the report in 1998, Joe likely wrote it off as someone’s mistaken interpretation, or a kid’s false report. 

So, McQueary, in his distress [he says he was in tears when he told Joe what he saw], maybe used the term ‘horsing around’.  How else would that term get into the testimony of the three: Curley, Schultz, and Paterno? 

Maybe, just maybe, Schultz, Curley, Paterno, and Spanier didn’t have enough to go on.  Maybe McQueary’s report lacked the critical element of actually seeing a sexual assault.  Even in his Grand Jury testimony he does not quite go that far.  He is still vague, calling it something of a “sexual nature.” 

Lacking that critical element these four men had nothing, really, to report to the authorities.  Had they done so, certainly McQueary would have been a questionable witness up front due to the fact that he DID NOT make the report himself. 

In their quandary, Spanier and Curley and Schultz turned to a local law firm with a long standing connection to Penn State, and for an hourly rate fee, were given legal advice by an attorney from there.  What do you think they were asking?  Obviously, they were asking “What are we obligated under the law to do?”  Additionally, they were obviously also asking, “What is the University’s risk of liability in this situation?”  Just as obviously, the answers were “nothing” and “no risk.” 

Any other answer would have required not only the University to take action by reporting the incident, it would also have required the attorney to report it! 

They would also have asked what the risk was if they reported Sandusky and he later decided after being cleared once again, to sue the University.

Why didn’t Spanier make use of the University’s legal counsel?  Obviously, they did not think the matter rose to the level that would require that, since it would require her to report the incident to the Trustees. 

Nevertheless, Spanier, Schultz, and Curley WERE going to report the incident to the Department of Welfare, so that body could investigate it, and not to the police since there was no evidence of a crime. 

Then Curley had second thoughts, and an inspired idea.  He would confront Sandusky, tell him he could not bring kids onto the campus again, have him present when they went to the CEO of The Second Mile [Jerry Sandusky’s foundation for helping troubled kids – a happy hunting ground for Sandusky], and lay it all out that Jerry has a problem. 

This is what they agreed to do.  This is what they did.  This is what they felt was the responsible thing to do. 

Once the Second Mile checked with their attorney they washed their hands of the incident.  They conducted no investigation of their own.  Having heard a report from Tim Curley that Sandusky has a problem getting too intimate with kids, bathing with them, wrestling with them and so on, they conducted no investigation of their own.  They never connected the dots.  And that was because there were no obvious dots to connect.  Not at the Second Mile, nor at Penn State.   

Freeh repeatedly charges all the Penn state people with failure to attempt to identify the victims.  But if they did not believe there were any victims, why would they then try to identify them? 

So maybe Curley, Schultz, Spanier, and Paterno were all telling the truth.  Maybe, just maybe, it is McQueary who doesn’t quite remember how he characterized his reports.

Finally now that we see that the Freeh report is full of holes, we can get to motivations. 

Why did the Board of Trustees feel the need to have this investigation carried out?  Would not the trial of Sandusky and the trial of Curley and Schultz suffice in clarifying exactly what happened, not just in the McQueary incident, but in subsequent incidents?

Of course it would…if Curley and Schultz are convicted of perjury.  Even if they were tried and acquitted, the sequence of events and the evidence would all be laid out and made public. 

But that does not answer the questions about Joe Paterno’s role in all this.  And that is why Freeh was hired to conduct his investigation.  There are many trustees who want to see Joe Paterno’s name cleared.  And there are many trustees who want to justify their precipitous action in firing Joe.  They are not the same trustees.

And Louis Freeh, of course, gave his employer exactly what they were looking for.  On the surface it condemns Joe Paterno not only as part of the cover-up but also as the likely source of the idea, and he does so by inference only, not by any direct evidence.  Underneath, if you go through his report carefully, you find the holes, which open up when the right questions are asked, or when what Freeh says simply does not add up, and Joe comes out clean. 

We found the holes.  

Nevertheless, Joe Paterno, and Penn State, are tarnished forever, and unfairly so.  


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