The Red Caboose On The Penn State Ethics Train Wreck Arrives: The Paterno Family’s Report

1-train-wreck-kari-tirrell

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.

_____________________________________

Sources: CNN, ESPN, ESPN2, Res Ipsa Loquitur

Graphic: Keri Tirrell, Fine Art America

 

16 thoughts on “The Red Caboose On The Penn State Ethics Train Wreck Arrives: The Paterno Family’s Report

  1. (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.)
    FALSE – this is not true. Read any testimony. McQuery never saw an assault or told anyone about an assault.

    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.
    FALSE – where do you get this? Please show.
    The family hired Sollers and Wicks. Soller and Wicks hired the other INDEPENDENT experts to review the report. They have spoken on record that they were under NO constraints and their findings would be public regardless of the findings. They all did their work independent of the other investigators and all make very valid points.

    Where is the same outrage over Freeh baises? Was he not part of the law firm that merged with Merck’s general counsel? Was he not general counsel to MNBA (bank) when they had relations with PSU. The head of MNBA was also a Second mile board member. Freeh made alot of money with stock options.

    Unfortunately your ‘article’ is biased and you lose all credibility.

    • I don’t know your game, Barry, but you are simply misrepresenting facts.

      1.There is no “Soler and Wicks,” but one man, Wick Smolers, a criminal lawyer, whose job it was to defend Paterno, and now the family. He is their agent; King and Spalding is his law firm. there is no difference between him hiring Thornburgh and the family directly, none. They are not “independent”. They are partisan representatives. You don’t know what you are talking about, or you are lying.
      2. The report makes no attempt at balance, and unlike the Freeh report, approaches the issue from an advocacy point of view, which is to be expected, because Wicks is an advocate. The family wasn’t going to spend the kind of money it needed to hire King and Spalding and Thornburgh without specifying what they were supposed to show. Nobody,nobody, thinks this is an independent report. If you do, you are a fool.
      3. Their charge was to review and critique the Freeh report, not to do an “independent report.” Soler can’t talk freely on the record—he is bound by confidentiality. If the family said “rip this report to shreds,” he couldn’t admit that—and that’s exactly what he was asked to do.
      4. Your contention regarding McQueery is just disgraceful spin. He saw Sandusky naked in the shower with a kid. He heard slapping sounds. He thought he was witnessing sexual abuse of a child, and so told a grand jury. And Paterno.
      5.They do not make valid points. It is, as Freeh said, a self-serving report.
      6. “Was he not part of the law firm that merged with Merck’s general counsel? Was he not general counsel to MNBA (bank) when they had relations with PSU. The head of MNBA was also a Second mile board member. Freeh made alot of money with stock options.” What does this have to do with Paterno, or anything?

      This isn’t a forum for insane Penn State/Paterno apologists. Peddle that garbage somewhere else, please.

      • And an addendum: I have no dog in this hunt, no prior relationship with Penn State or its fans (unlike Thornburgh), and nobody’s paying me anything, unlike Paterno’s attorneys You can’t accuse me of bias without proof of bias, and there is none to find. If Paterno was being unfairly tarred with this, I would be happy to take his side, but he isn’t. It was the Catholic Church and the Bishops all over again, and the JoePa die-hards, like the foolish students that demonstrated when he was fired, are in haevy, fact-free denial, and are really an embarrassment.

  2. 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.

    There was no cover-up, because the police were aware of the accusation.

    In the end, the D.A. chose not to charge Jerry Sandusky.

    • The school never reported anything. There was willful ignorance and a coverup. The duty was to get Sandusky off campus and away from kids. The police botch was a separate issue.

      I can’t imagine why anyone continues to make excuses for Penn State and Paterno. It is amazing to me.

      • The school never reported anything.

        Neither did they cover up anything in 1998.

        There was willful ignorance and a coverup. The duty was to get Sandusky off campus and away from kids. The police botch was a separate issue.

        And what reason existed for that, after District Attorney Ray Gricar reviewed the evidence gathered from an investigation by proper authorities and declined to prosecute?

        I can’t imagine why anyone continues to make excuses for Penn State and Paterno. It is amazing to me.

        Penn Staters for Responsible Stewardship is committed to the truth.

  3. Here is the truth.

    http://tinyurl.com/m9xuay4

    COMMENTARY: WILLIAM A. LEVINSON PSU case constructed on shaky ground

    January 12. 2014 11:43PM
    More
    Story Tools
    PrintPrint | E-MailEMail | SaveSave | Hear Generate QR Code QR
    Send to Kindle

    Font size:

    A blood libel is a false and malicious accusation of a particularly heinous crime, and often an excuse for violence against its target. Examples include accusations that Jews killed Christian children for religious purposes, Emperor Nero’s accusation that Christians set fire to Rome and conspiracy theories that the United States perpetrated 9/11.

    Former Penn State assistant football coach Mike McQueary’s sworn testimony seemingly proves the grand jury presentment’s assertion that McQueary “saw a naked boy, Victim 2, … being subjected to anal intercourse by a naked (Jerry) Sandusky” to be a blood libel of Penn State, Coach Joe Paterno and Penn State administrators Graham Spanier, Tim Curley and Gary Schultz. All were condemned for failure to take sufficient action on McQueary’s report of this vicious crime against a child, when McQueary testified under oath that he never witnessed this crime.

    This falsehood in the grand jury presentment is, therefore, what Gen. Carl von Clausewitz would call the following people’s and entities’ center of gravity. This is the foundation upon which their entire cause depends, and the premise on which they have staked their names and reputations.

    • The prosecutors who have charged Penn State administrators Spanier, Curley and Schultz with perjury and other crimes.

    • Louis Freeh, who accused these people of covering up for Sandusky.

    • Penn State’s Board of Trustees as of Nov. 11, 2011, when it fired Spanier and Paterno.

    • The NCAA, which sanctioned Penn State for covering up for Sandusky to protect its football program.

    • Buzz Bissinger, Dan Bernstein (CBS Chicago) and other media personalities who seemingly thrive on raw sensationalism.

    In the Bible, Matthew 7:27 describes what happens to houses with foundations of sand. “And the rain descended, and the floods came, and the winds blew, and beat upon that house; and it fell: and great was the fall of it.”

    The court transcript of McQueary’s sworn testimony does exactly that. (See http://media.pennlive.com/midstate_impact/other/Curley-Schultz-Hearing-Transcript.pdf)

    • Page 56: McQueary heard a few (two or three) slapping noises from the shower, and made up his mind on the spot that some kind of male-male sexual activity was taking place. “… visualizations come to your head of what may be in the showers. So I was already embarrassed and slightly like, should I be here. I want to get out of here.”

    This testimony seemingly exemplifies the contention in forensic psychologist Scott Fraser’s “Why eyewitnesses get it wrong.” The human brain, which “abhors a vacuum,” creates memories based on inferences and partial information.

    • Page 89: McQueary did not bother to write any notes for future reference. “I had my memory and I know what I saw.”

    • Pages 89-90: The defense attorney reminded McQueary that a crime required police intervention. He then testified that he and his father, to whom he told the story, decided to not call the police on the night of the incident.

    • Pages 93-97: McQueary did not see actual sexual contact between Sandusky and the boy, or any behavior by the boy to suggest he was being harmed.

    • Pages 99-101: McQueary reiterated that he would have called the police over a burglary, but “not for Jerry Sandusky doing what he was doing to a boy.” Then he added that his best judgment was to leave the boy alone with Sandusky, and that he never made any effort to find out what happened to him.

    In addition, Penn State alumna Eileen Morgan has posted “Mike McQueary’s Credibility Chart” at http://march4truth.com/research- -reports.html. As the post states: “This needs to be shared far and wide because this appears to be the epicenter, along with PSU Trustees’ actions, of how the Sandusky Scandal became the Penn State Scandal.”

    • This is crazy, ME, and if it was worth the trouble, I’d dismantle it. The conflict of interest claim is weak weak weak, and the argument that Sandusky wasn’t seen sexually molesting a child—just seen naked showering with a child—is pathetic. Paternno’s own words show that he chose to avoid confronting the Sandusky situation and didn’t take appropriate actions to protect the victims, using rationalizations instead. You can do this kind of thing with any investigation report. It is designed to obfuscate and muddy the water….it would be useful if Paterno was standing trial, to raise doubts. But he’s not on trial, and the facts are convincing.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.