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

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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. Continue reading

The Bill James Effect, Or How Nature Conspires To Make Us Irresponsible

Quiz: What do Gen.Lee and Bill James have in common?

You see, our strengths do us in, sooner or later. The greater the strength, the more successful it has made us, the more dangerous it is.

In the American Civil War, Robert E. Lee was the smartest general on the field…so smart that he broke iron-clad rules of battle strategy again and again, and prevailed every time. When everyone told him how it was usually done, always done, Lee knew that he could get an edge by doing something else. You never divide your forces, his aides, subordinates and the military books told him. So Lee did, at Chancellorsville, and won an incredible victory.

Then came July 3, 1863: the final day of the Battle of Gettysburg, and Pickett’s Charge. Everyone told Lee that a massed Napoleonic assault, over an open field, into enemy artillery and a fortified line, was suicidal. But when conventional wisdom dictated a course of action, that was when Lee had always succeeded by ignoring it. So he ordered Pickett’s Charge. This time, conventional wisdom was right. The same qualities of creativity, courage, certitude, and willingness to resist the power of convention that had caused Lee’s men to trust him unconditionally had resulted in the massacre of thousands. Pickett’s Charge wasn’t bold or ingenious. It was irresponsible. Lee, because of a lifetime of success challenging what others thought was obvious, was no longer able to tell the difference. Continue reading

The Ethical Fate For Joe Paterno’s Statue

In the wake of the Freeh Report’s revelations regarding the extent of the late Joe Paterno’s involvement in allowing Jerry Sandusky’s child molesting appetites to be sated with Penn State’s  assistance, many are calling for the campus statue honoring the now-disgraced coach to be removed.

I am generally opposed to removing memorials and honors to historical figures according to the popular verdicts of the day, for several reasons. The main one is that every individual who ever achieved something worthy of such honor also was guilty of misconduct that someone could convincingly argue outweighs it on moral or ethical grounds. New facts are uncovered, cultural values shift, and over time, no revered figure is safe from deconstruction. The reverse is also inevitable: if a life can be judged unworthy of honor, subsequent generations may well disagree. The verdict of a community, a culture and an era should be given due weight and respect;  a statue, memorial or monument not only recognizes an individual but also represents the judgment of our predecessors. Leave their judgments alone, and if we disagree with them, try to make ours better. Continue reading

Ethics Quote of the Week: Joe Paterno

“This is not a football scandal and should not be treated as one.”

The late Joe Paterno, legendary Penn State football coach, in a previously unreleased and unpublished column he wrote in the wake of the  Joe Sandusky child abuse scandal, in which he played a major role. The internal Penn State investigation into the university’s handling of the episode was released today.

Denial

In denial to the end, Paterno never understood how he, and football, contributed to the culture that allowed Sandusky to prey on young boys with the passive assistance of Joe and the school he loved.

Of course the scandal was about football. It was about how reliance on football to the exclusion of all other priorities and values warped an academic culture. It was about the danger of elevating a football coach to such status and power that his tunnel-vision could infect an entire college campus. It was about how the grotesquely exaggerated importance, popularity, visibility, and financial profitability of a football program can elevate those responsible for its success to a degree where they become unaccountable, and able to exploit their power for private and possibly criminal motives. Continue reading