That the Penn State child molestation scandal has metastasized into a full-fledged ethics train wreck can now hardly be denied. The proof is that, as pointed out by Solomon L. Wisenberg on the White Collar Crime blog, Pennsylvania Attorney General Linda Kelly trounced all over fairness to the accused in her statement to the press, violating the ethics rules governing prosecutors in the process.
Rule 3.8 of the Pennsylvania Rules of Professional Conduct states that the prosecutor in a criminal case..
“…shall, except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.”
Rule 3.6(a) forbids a “lawyer who is participating or has participated in the investigation or litigation of a matter” from making…
“…an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”
Note 5 to the Comment on Rule 3.6 cautions that “certain subjects…are more likely than not to have a material prejudicial effect on a proceeding, particularly when they refer to…a criminal matter, or any other proceeding that could result in incarceration.”
Seems pretty clear, don’t you think? Odd, then, that Kelly could justify saying this about the alleged 2002 sexual assault by Jerry Sandusky on a 10 year-old boy in a Penn State shower, speaking of the two Penn State officials charged with perjury and failure to report:
“Those officials and administrators to whom it was reported did not report that incident to law enforcement or to any child protective agency. And their inaction likely allowed a child predator to continue to victimize children for many, many years.”
Kelly delivered her condemnation with giant posters behind her, showing photographs of the defendants the charges against them. Then she had State Police Commissioner Frank Noonan drive her point home, announcing that defendant Jerry Sandusky’s actions constituted …
“…grooming, where these predators identify a child, [and] become mentors. They’re usually children that they’re having a little difficulty, they’re at-risk children. Through the program he was able to identify these children, give them gifts, establish a trust, initiate physical contact which eventually leads to sexual contact, and that is very common in these types of investigations.“
As for the two Penn State defendants, Noonan also emphasized that subsequent incidents were not reported to the police, adding,“And that’s very unusual. I don’t think I’ve ever been associated with a case where that type of eyewitness identification of sex acts [was] taking place where the police weren’t called.”
That sure sounds like “extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused” from the Attorney General to me, and it certainly doesn’t seem like she exercised “reasonable care to prevent…law enforcement personnel…from making an extrajudicial statement that the prosecutor would be prohibited from making.”
Does it?
The Penn State administration, the police, the campus police, Sandusky, Paterno, McQueary, the rioting students, and the prosecutors…the train is long and the carnage is vast.
Ethics Alarms 
This whole situation is such a clusterF….K! What is even worse is this is just a small part of what is wrong with society as a whole. There is good in this world. Just difficult to see it at times.
I haven’t commented on the Penn State train wreck so far — there have been enough brilliant and moronic responses that it’s hard to keep track, but I have read enough responses — “I would have jumped into that shower and stopped the abuse,” and so forth, that I would like to pose a couple of questions:
1. When is it a citizen’s duty to actually intervene in a crime or accident? If I can’t swim and see someone drowning, and have a husband and three children, am I morally or ethically obligated to jump in the water and probably drown the both of us? No, it’s not child abuse, but those who would have “jumped into the shower” are on a really slippery slope here.
2. If I’m in the 7-11 and a gun-wielding robber is holding up the cashier, is it my duty to leap into the fray and probably get shot?
3. Since when does “citizen’s arrest” define one’s obligation of putting one’s own self at risk of death or injury?
5. If I observe child abuse (sexual or otherwise) what do I do? I know, because I’ve done it. I called 911. And it worked. (I’ve also done the same thing when I observed what I considered drug-dealing in an affluent neighborhood.) What is a better choice?
6. Is there a difference between ‘doing the minimum” and “doing what’s right?” You betcha, as Sarah Palin would say. And “doing the minimum” is not the answer.
Those responsible for this years-long scandal at Penn State should pay the highest price — not just for obstructing justice, but for actually fomenting child abuse. Personally, if I had witnessed the “event,” I wouldn’t have taken the time to pass the report “up the line,” I would have called 911 and reported an assault in progress.
But then again, I don’t and never will understand college athletics, and the strength of non-ethical considerations that come into play in that arena (no pun intended). The only good thing that may come out of this is the end of the hegemony of college sports, its relation to fund raising, and (I hope) the partial saving of the numbers of kids who were abused.