Karen Peetz, Chair of the Board of Trustees and other members of the Board
Rush To Judgment
This is written in follow up to my e-mail of July 25th. I note that, apparently on the evening of July 25th, there was a Board telephone conference during which President Erickson explained the reasoning behind accepting the NCAA sanctions and, according to press reports of July 28th, he explained that he believed he had authority to commit Penn State to those sanctions without Board approval.
I wish to incorporate my prior e-mail so as to not explain again my background or previously stated concerns. The purpose of this e mail is to set forth for the Board, President Erickson, NCAA President Mark Emmert and Judge Louis Freeh my analysis of the significant flaws and oversights and unsupported conclusions of the Freeh Report.
I label this e mail Rush To Judgment because it is obvious that President Erickson, President Emmert, Board Chair Peetz and others did not have the benefit of a serious critical analysis of the Freeh Report before acting. NCAA President Emmert, according to the Sports Illustrated article by Alexander Wolff in the July 30, 2012 publication, “called the ‘perverse and unconscionable’ nature of the scandal, granted him authority to bypass the infractions committee, use the Freeh Report as a kind of proxy NCAA probe and act with unprecedented speed.” There appears no dispute but that the time between the Freeh Report and the imposition of sanctions, and the agreement by Erickson thereto, did not permit serious analysis or evaluation of the Freeh Report or facts not contained within the Freeh Report.
The first, and perhaps most astounding, flaw in the Freeh Report is admitted, in part, and then excused by Freeh and is contained on Page 12 of the Report. (All page indications are to the Freeh Report). Sandusky, Schultz, Curley, and former University outside legal counsel Wendell Courtney refused to be interviewed. Not interviewed as well at the request of the Attorney General were Thomas Harman and Michael McQueary. Omitted from this list, but significant because he was not employed by Penn State, was the Executive Director of Second Mile (not identified by name) (pg. 78). Paterno died before being interviewed. So we have six of the central players, six of probably the existing seven with Spanier being the other, who never talked to Freeh. The Executive Director of Second Mile was an essential individual as the story of the 2001 events unfolds because Curley apparently advised the ED of Sandusky’s actions but the ED was not interviewed by Freeh. The Centre County prosecutor who declined prosecution of Sandusky in 1998 also declined to be interviewed (pg.46).
Despite this extraordinary limitation to the investigation, Freeh, rather than leave the readers of the report to draw their own conclusions on this issue writes the following: “Although the information these individuals could have provided would have been pertinent to the investigation, the findings contained in this report represent a fair, objective and comprehensive analysis of facts.”
The Board needs to ask whether any other investigative report, relied upon by the NCAA before imposing extraordinary sanctions, drew its conclusions without speaking to six of the seven main characters. The Board further needs to ask, not only Freeh but, others familiar with reports written by outside counsel to point to another report of this significance where the author (here Freeh) declares his own report “fair, objective and (a) comprehensive analysis of facts”. If such were true, why does one need to state it?
The second, and most damning, flaw in the report is Freeh’s failure to properly establish a context for the 2001 actions of Spanier, Paterno, Curley and Schultz. That context, as is obvious to any objective reader, is the 1998 understanding of Spanier, Curley, Schultz and perhaps Paterno that Sandusky’s showering with and hugging a young boy in the shower was not a crime and was not prosecuted.
The University became aware of the incident through the boy’s mother. Penn State, through the University Police Department had the matter investigated by a Detective Schreffler (pg.42). A psychologist, Alycia Chambers, was advised of the incident by the boy’s mother and she interviewed the boy (pg.42). Schreffler contacted the Centre County Children and Youth Services (pg.42). The Pennsylvania Department of Public Welfare took charge of the investigation (pg. 43) and the investigation was conducted by Jerry Lauro. Schreffler also reported the incident to the Centre County Prosecutor, Karen Arnold (pg. 43). The State College Police become aware of the incident and listened in on a conversation between Sandusky and the boy (pg. 45). DPW had a second investigator, Counselor John Seasock, interview the boy and conduct an investigation and prepare a report.
The conclusion of this matter, by all those outside the Penn State family at the time, was that this was not a crime and, thus, it was not prosecuted.
Spanier, Schultz, and Curley knew that Sandusky had been in a shower with a boy and Sandusky hugged the boy in the shower and were informed by the University Police and by the Centre County Prosecutor that this was not a crime and it was not going to be prosecuted. The Freeh report fails to establish what exactly Paterno knew of Sandusky’s actions.
What is essential is the context created by these events. Penn State officials, along with the boy’s mother and Chambers, notified everyone who could possibly be notified (other than their own department of Human Resources and the Board of Trustees but Freeh ignores that non-events might not be brought to the attention of Human Resources or the Board). Spanier, Curley and Shultz appropriately monitored the situation and did not interfere in any way with the investigation. They receive from Freeh, however, no credit, no acknowledgment, and no benefit. In fact, as will be set out below, Freeh repeatedly condemns Spanier, Curley, Schultz and Paterno for not doing more in follow up despite the fact that all were advised that Sandusky’s actions were not a crime.
An unbiased and non-conclusion oriented report would have at least considered, mentioned, pointed out that the 2001 events regarding Sandusky are seen by Spanier, Schultz, Curley, and probably Paterno, with an understanding of the finding that Sandusky’s actions in the shower in 1998 were not a crime.
Freeh never once mentions or considers that, Schultz, Curley and Spanier, and perhaps Paterno, when learning in 2001 that Sandusky was seen in a shower with a young boy, had heard this story before and fairly, reasonably, and if given the benefit of the doubt, were entitled to view Sandusky’s actions as a repeat of 1998 and, thus, apparently, not a crime. Certainly, this interpretation fits entirely with Spanier’s testimony before the Grand Jury and in his comments of defense after the Freeh Report and the NCAA sanctions.
Freeh never acknowledges how easy it is in 2011 and 2012 to look back, knowing today that Sandusky is a pedophile and that his actions are despicable and repulsive. But certainly to a large group of folks in 1998 his actions did not so appear and certainly in 2001 to a large group of folks his actions did not so appear. Hindsight is always 20/20 but the Freeh Report in its rush to judgment fails to even consider that the events of 2001 were far more blurred in the eyes of Spanier, Paterno, Curley and Schultz and were seen by those four Penn State officials through glasses provided by the non-prosecution of Sandusky for a similar event in 1998.
It must not be forgotten that McQueary’s report to Paterno as admitted by McQueary and as reported by Paterno was not explicit (pg. 67, McQueary does not tell Paterno it is sexual in nature). It must not be forgotten that McQueary’s version of the events had the boy and Sandusky turning towards him after he slammed his locker closed and that the boy was not screaming or asking McQueary for help (pg. 67). It must not be forgotten that McQueary told his father of the events and his father did not call the police, did not report the incident to anyone (pg. 67). It must not be forgotten that Curley told the University’s outside attorney, Wendell Courtney, who did not call the police, did not report it to anyone (pg. 62). It must not be forgotten that Curley told the Executive Director of Second Mile, who in turn told two trustees of Second Mile and none of the three called the police; none reported it to anyone (pg. 78).
It would perhaps be appropriate for the Freeh report to emphasize that it is best for anyone who sees any man showering with any youth to report such incident to the police and to the appropriate child welfare agencies. But such does not appear to be required by Pennsylvania law (pg. 251, pg. 254).
The Board needs to ask why it is that Freeh issued his report before the trials of Schultz and Curley. This is especially relevant when Freeh, as a former Judge, would certainly have every reason to believe that his report might well preclude a fair trial for Schultz and Curley for he has certainly found them guilty of at least the misdemeanor of failing to report child abuse.
Additional Flaws and Questions
The below are set out in order as read in the report with appropriate page numbers. This is by no means a complete list of criticism of the Freeh Report but a sampling of those most glaring to me.
Page 16 – without support Freeh concludes Spanier, Curley, Schultz and Paterno failed to act in order to prevent bad publicity for the football program; not proven even if one reads Spanier’s e-mail in the light most favorable to this interpretation. Spanier was perhaps concerned about bad publicity for Penn State, not the Penn State football program.
Page 17 – Freeh condemns the school for a “culture of reverence for the football program” without establishing any facts that the decision to not prosecute Sandusky in 1998 flowed from a “reverence” for the football program; nor that the decisions regarding the 2001 incident flowed from the so called “reverence”. No doubt, football is revered at Penn State. Joe Paterno it is fair to say was revered and loved, but Freeh’s conclusion that Paterno did not do the right thing certainly is contrary to exactly what Paterno would want to do in order to continue to be revered.
Page 23 – Freeh, who as a former Judge should know the law, mentions that Wendall Courtney, an attorney and outside counsel for the University was consulted by Curley and advised of the 2001 incident. Freeh, however, never mentions the “advice of counsel” defense: individuals who in good faith speak with an attorney and after the attorney is fully advised of the facts get approval for no action being taken (or approves action about to be taken) can be acquitted based on reliance on that legal advice alone. Freeh never discusses that an outside University attorney viewed the circumstances of 2001, and apparently so advised Spanier and Curley, that no action need be taken. Certainly Courtney is presumed to know the law and he did not notify the police or the child welfare authorities. (Also pg. 69). Whether Curley has an “advice of counsel” defense is certainly not apparent based on the limited facts set forth by Freeh and due to the refusal of Curley or Courtney to speak with Freeh. But what is apparent is Freeh failing to mention this issue at all in his report. As an attorney, Courtney’s involvement and knowledge of the 2001 incident, strikes me as a most significant factor in the actions of Spanier, Curley, Schultz and Paterno but it is never discussed by Freeh.
Page 39 – Freeh condemns Spanier, Schultz, Paterno and Curley for not prohibiting Sandusky’s access to Lasch and other Penn State facilities starting in 1998 when they were aware of the criminal investigation of Sandusky. This statement ignores that Sandusky through 1999 – a year after the incident – was an employee and coach at Penn State. How, on the basis of a criminal investigation that cleared Sandusky is he, an employee of Penn State, to be barred from the campus? Why on the basis of a criminal investigation that found no criminal conduct would Spanier, Schultz, Paterno and Curley even think to ban Sandusky from the campus?
Page 39; Page 103 – Freeh makes a bald assertion that if Sandusky had been kept from the Lasch Building after the ‘98 and ‘01incidents that children might have been saved from assault. This appears to be an unsupportable assertion made simply as another means of condemning Penn State. It ignores the fact that Sandusky apparently assaulted children in his own home, in hotel rooms, and who knows where. To allege that a pedophile who apparently continued his criminal course of conduct for over ten years would have been stopped by closing one building is specious.
Page 251 and Page 254 – the Pennsylvania law on reporting wrongful conduct and child abuse are set forth. I have not researched the Pennsylvania case law to determine how these definitions have been interpreted. That said, certainly a layperson could read those definitions and not believe that Sandusky’s actions fell within either definition. Obviously, the Centre County prosecutor decided in 1998 that Sandusky’s actions did not violate those definitions.
Since last week President Erickson and the Penn State Alumni Association have both published statements saying it is time to move on and that a fight within the University would be bad for the University. Their position and that of many others appears to be: get this behind us.
It appears obvious, and not disputed, however, that both the NCAA and Penn State acted without taking appropriate time to analyze Freeh’s Report. Certainly, nothing President Erickson has said since my last e-mail refutes the assertion that his actions were in violation of the Penn State Charter and Bylaws.
What is next for President Mark Emmert and the NCAA is to suspend the sanctions and take the time to comply with the NCAA’s own rules and requirement that a thorough investigation be conducted. Certainly no harm would come to the NCAA by considering additional evaluations and waiting until Schultz and Curley have a chance to be heard. Apparently, the NCAA acted without considering Spanier’s comments and without inviting him to provide further information and testimony to the NCAA. The NCAA and Emmert admit they acted solely upon Freeh’s report. If that report is flawed then the sanctions have no basis.
A simple example of the extraordinary damage the Freeh report has done is the removal of all Penn State football team victories starting in 1998. Sandusky was cleared of any criminal acts in 1998 and the Penn State group knew that and relied on the prosecutor’s decision not to prosecute. But Freeh’s inappropriate and unsupported condemnation of Spanier, Curley, Schultz and Paterno starting in 1998 obviously set the date for Emmert and the NCAA.
What is next for the BOT is exactly what I wrote last week – discharge President Erickson for acting without approval of the BOT. Further, if what President Erickson said is accurate that Board Chair Peetz approved his signing the consent decree without a discussion with and vote of the entire Board, then Chair Peetz violated the Board’s Bylaws and must also be removed.
The flaw in “moving on and getting this behind us” is that it permits the University to be permanently tainted on the basis of a seriously flawed report. This report was written with an eye on the conclusions Freeh wished to reach and was written in a fashion to state conclusions instead of letting the readers draw their own.
The BOT commissioned this report and, of note, Freeh chose to issue it publicly without subjecting the report to review or questioning by the Board. Why is that? Why did he think that his report was not subject to pre-publication evaluation and perhaps criticism?
Some have told me that I am wasting my time with these efforts. Some have said that nothing will change, nothing will come of this, a decision has been made and the University BOT will not be moved.
Certainly, that attitude, the view that the BOT cannot have their eyes opened and cannot reconsider a decision is not my experience of Penn State. Granted, I have no firm belief that all that I suggest needs to happen will happen or that all that I suggest will even be considered.
What I am certain of, however, is that only one side has been presented. Our students are at home with only one side of the story and are entitled to learn all sides.
I know I am not the only one reading this report with a lawyer’s eye. I commend to the Board another evaluation of the Freeh report focused on Paterno. (Our opinions overlap on a number of items but I did not read this or any other evaluation until I had reread the Report and taken notes for the purpose of writing this letter this past Friday and Saturday). http://www.powerlineblog.com/archives/2012/07/the-case-against-joe-paterno-weak-to-non-existent-on-the-current-record.php
What I am certain of is that in your rush to judgment you have damaged this University and it’s student body and alumni by not standing up for Penn State. I titled this e-mail before reading that Penn State alumni and former football players Franco Harris, Rudy Glocker and Christain Marrone have apparently read the report as I have and titled an open letter to the alumni with the same title, Rush to Judgment.
I am offended by Freeh’s report and Erickson’s actions for the damage it has done to all the Penn State students and alumni; to the damage it has done Spanier (whom I have never met); to the damage it has done Curley and Schultz (neither of whom I have ever met and both of whom are innocent until proven guilty); to the damage it has done to the memory and reputation of Joe Paterno (whom I only met once, in 1965).
Finally, the problem with “moving on and getting this behind us” is that approach is an anathema to an academic institution which requires of its students a constant search for the truth. The Freeh report did not find the truth. The Freeh report drew conclusions based on incomplete information. The Freeh report drew unsupported conclusions and in the process condemned an extraordinary institution to undeserved punishment. For the President of this University and the Board of Trustees to unquestioningly accept the Freeh report would set an outrageous example of academic failure for the students of Penn State.
Please insure that all members of the Board of Trustees see this e-mail. I have copied President Erickson, President Emmert and Judge Freeh and await responses to my last e-mail and to this one.
Dan Clements ‘68