To understand what the Joe Paterno’s family’s report (released on Feb. 10) regarding the late Penn State football coach’s culpability in the Jerry Sandusky child abuse cover-up means, one has to understand what lawyers do, and why it is completely ethical for them to do so, as long as their role isn’t misrepresented by them or their clients.
Lawyers exist to allow non-lawyers to have access to a legal system that is (needlessly) complicated and technical, and to provide their legal training, analytical skills and advocacy abilities to their clients’ legal and legitimate needs and objectives. A lawyer who interposes his or her own opinions, judgments and desires on the client without being asked to do so is, in most cases, behaving unprofessionally and unethically. This is an essential principle to grasp, and yet the vast majority of the public do not grasp it. Nonetheless, without the partisanship a lawyer brings to the attorney-client relationship, regardless of whether a client is rich or poor, altruistic or venal, kind or cruel, we would all be slaves to the laws we supposedly create ourselves, through the machinery of a republic.
An independent investigation of the Penn State administration’s failure to stop serial child molester Jerry Sandusky from harming young children found that iconic football coach Joe Paterno was at the center of the school’s misconduct and the catalyst for it. The investigation was performed by Louis Freeh, a lawyer, a former prosecutor, a former federal judge, and once the head of the F.B.I. His charge was to find out what happened and who was at fault—not to nail Paterno or anyone else. It was an independent investigation, with no dictated result. Don Van Natta, a sportswriter whom I supposed should not be expected to understand such distinctions, writes,
“If the Freeh report was a prosecutor’s relentless opening statement that delivered devastating, far-reaching consequences, the Paternos’ rebuttal is a defense attorney’s closing argument brimming with outrage and fury.”
Wrong, wrong, wrong. The Freeh report was not a work of advocacy in an adversarial setting, but akin to a judge’s objective decision after reviewing the relevant and available facts. The Paterno family report, in contrast, is a work of advocacy, like a brief arguing an appeal to overturn a judicial decision against a lawyer’s client. The charge given to Freeh in his investigation was to find out what went wrong and why. (It began with the assumption that something did go wrong, which was reasonable, since a child predator had somehow managed to roam the Penn State campus for decades, including a ten-year period after he had been seen sexually assaulting a child in a Penn State shower.) Freeh was not told to get Penn State off the hook, or to pin as much as possible on Joe Paterno. The authors of the Paterno family report, however, were charged with the task of rebutting and discrediting Freeh’s report in order to rescue Joe Paterno’s reputation and legacy. It is an advocacy memorandum, like the torture memos and the recent Justice Department justification of the killer drone program.
We don’t know if the lawyers hired by the Paternos actually believe that Paterno wasn’t as culpable as the Freeh Report declared, and—this is key—it doesn’t matter if they don’t. They were paid to find whatever weaknesses they could in Freeh’s conclusions, not to give their own independent conclusions. There is nothing unethical about performing that assignment, just as there is nothing unethical in the Paterno family paying for it. The family, we must assume, honestly believes that its patriarch has been unfairly blamed for allowing Sandusky’s crimes. It is perfectly fair and reasonable for them to hire the best and most credible legal talent available to make their case for them, but it is their case, not their lawyers’ case.
In fact, there is significant evidence that the most prominent of the family’s legal team does not agree with their case, despite his signed statement attacking Freeh. Former Attorney General Richard Thornburgh joined the distinguished Atlanta-based law firm of King and Spalding [ Full disclosure: I have worked with the firm in the past] in dissecting Freeh’s report, and Thornburgh filed a separate report critical of Freeh’s work. In his own statement reacting to the Paterno family rebuttal, Freeh notes,
“In 1989, then-Attorney General Richard selected me from the thousands of federal prosecutors in the Justice Department to lead the investigation into the bombing murders of federal judge Robert Vance in Alabama, and NAACP leader Robbie Robinson in Georgia. Thornburgh then highly praised my investigative abilities, and the cases were successfully prosecuted. Thornburgh personally signed my certificate appointing me as a federal judge. The day after the Freeh Report was issued, Thornburgh said it would be required reading in colleges and had “vast implications.”
Technically, Thornburgh’s initial praise of the Freeh Report does not create ethical problems for him as he later accepts a client’s money to trash it, but I think it significantly diminishes his perceived authority and persuasiveness on the matter, as does the fact that he knew Joe Paterno personally, was a noted Penn state football fan, and was a Governor of Pennsylvania (who once shut down a state highway lane so the Alabama football team bus wouldn’t have to wait in post-game Penn State traffic). A lawyer is supposed to refuse a representation when his personal biases will undermine the job, and I think Thornburgh was ethically mistaken to accept this assignment, especially since one of the family report’s criticisms of the Freeh Report is that Freeh was biased.
Having read the King and Spaulding-Thornburgh report, I would characterize it as weak and desperate, but probably as good a case as could be made for the conduct of Paterno, who really has no defense. For example, the family report attempts to explain the damaging emails and notes Freeh’s investigators uncovered in March 2012, in a drawer in Penn State Vice President Gary Shultz’ office. The Freeh Report concluded from these e-mails that Joe Paterno, university president Graham Spanier, athletic director Tim Curley and Schultz were all aware of the 1998 incident in which Sandusky had showered with an 11-year-old boy, and were trying to cover it up. In May 1998, Schultz wrote that he had “touched base with” Paterno about the alleged incident. Days later, under the subject “Jerry,” Curley emails Schultz, “Anything new in this department? Coach is anxious to know where it stands.” Freeh and his investigators concluded “Coach” was a reference to Paterno and that it proved that Paterno was an active participant in the cover-up.
King and Spaulding calls this an “unsupported opinion” and “a fallacy,” because Freeh failed to confirm that “Coach” was Joe Paterno. After all, it could have referred to Sandusky or even another coach, right? Moreover, they argue, Freeh’s investigators did not interview Curley or Schultz to explain what was meant by the emails.
Sure. Freeh couldn’t interview Curley or Schultz, since they are standing trial soon on perjury charges and would not be able to answer such questions fully or candidly. And while on the Penn State campus only one man was known to all as “Coach,” I suppose it’s possible Schultz used the name to refer to the child-molester, or perhaps he meant Craig T. Nelson, having just finished starring in “Coach” on TV, or maybe the ghost of Knute Rockne. Hey, it’s something.
The family report also argues that Freeh didn’t take sufficient notice of the fact that JoePa loved kids and gave money to charity—in other words, self defining virtue: Paterno was a good man, no good man would let a child molester run amuck, ergo Paterno didn’t. Other criticisms are more relevant and substantive; the family got their money’s worth, but any investigative report can be attacked in this fashion, just as a good defense team can create reasonable doubt in a jury’s minds despite a strong prosecution case. When all the word-parsing and technical flaws have been covered, however, the facts that are impossible to avoid are still the most damning. Joe Paterno had the power to warp the college’s administration, and used it. Penn State was completely dependent on the football program for income and prestige, and a toxic culture had developed in which football over-shadowed all other considerations. Paterno was informed of Sandusky’s heinous behavior at very least when Mike McQueary reported it, and still did not take the necessary steps within his power to have Sandusky arrested and his helpless prey protected. [Mark Esposito has a sharp critique of the family report here. The various documents, including the Freeh Report, are here.]
No, the Paterno family has done nothing wrong to seek to undermine a report it sincerely feels is unfair to the its beloved patriarch, and their lawyer have done nothing unethical in making the best case possible that Louis Freeh was wrong. The family report, however, should not be allowed to weaken public understanding of the ethical, cultural and institutional lessons of this terrible ethics train wreck, nor reduce Joe Paterno’s accountability for it.
Graphic: Keri Tirrell, Fine Art America