To: Attorney General Kathleen Kane
cc: Governor's Office of General Counsel
State Senator John Yudichak
State Representative Scott Conklin
State Representative Jake Corman
State Representative Kerry Benninghoff
Penn State Board of Trustees
others
Executive Summary 1
Motive to Deliver an Advocacy-Driven and One-Sided Report 2
Evidence from Wynn Resorts Case 2
Evidence from the Report Itself 3
Self-Proven Falsehoods 4
Conclusion and Requested Action 5
Executive Summary
It would normally be
the fiduciary duty of Penn State's Trustees to address the issue as to whether
the Freeh Group delivered a one-sided and advocacy-driven report instead of the
impartial investigation for which Penn State had contracted. The Board's
controlling majority, however, has a conflict between its credibility and the
duty in question.[1] I
believe that these circumstances render the current Board unfit and unable to
protect Penn State's interests, and require intervention by the Attorney
General, Governor's Office of General Counsel, and/or Legislature to address
the problems with the Freeh Report.
Penn State hired
Louis Freeh and his firm, at a cost of $6.5 million, to perform an independent
and impartial investigation of the Jerry Sandusky scandal. The Freeh Report
comes across instead as having been written to fit the available evidence to a
predetermined conclusion: specifically, that three Penn State administrators
and Coach Joe Paterno tolerated Jerry Sandusky's abuse of children. Four items
support and reinforce this perception:
(1) MOTIVE: Penn State's Trustees needed the Freeh
Group to validate, regardless of the facts, their precipitate and reckless
decision on November 9 2011 that President Spanier and Coach Paterno were
somehow responsible for Sandusky's activities.
(2) EVIDENCE FROM WYNN RESORTS CASE: Former
Homeland Security Chief Michael Chertoff found that another
"impartial" Freeh investigation, this one on behalf of Wynn Resorts,
was “structurally deficient, one-sided, and seemingly advocacy-driven.”
(3) EVIDENCE FROM THE REPORT ITSELF: The Freeh
Group's report for Penn State contradicts itself, and also says (with the
benefit of hindsight) that Coach Paterno and Penn State administrators should
have done things that could have easily landed the University in serious legal
trouble.
(4) SELF-PROVEN FALSEHOODS. The Freeh Report, and
Mr. Freeh, told three falsehoods about Coach Joe Paterno. This does not reflect
well on the report's credibility.
Motive to Deliver an Advocacy-Driven and One-Sided Report
The trouble may well
have begun when the Board brought Louis Freeh on board to determine who was to
blame for Sandusky. Board members who claim to be eminent business leaders
should have known better; disciplinary action is usually appropriate only in
the event of willful disregard for organizational procedures.[2]
The problem was that
the entire Board had already painted itself into a corner when it scapegoated
Coach Paterno and, quite likely, President Spanier, on November 9 2011. When a
medieval mayor blamed his city's problems on witchcraft, and then brought in an
itinerant witch-finder to investigate, the mayor didn't need to tell the
witch-finder that he had better invent some witches if he couldn't find any
real ones.
Evidence from Wynn Resorts Case
Emphasis is mine.[3]
The review by former Homeland Security Secretary Michael Chertoff found
that Wynn Resorts’ independent investigation, conducted by former FBI
Director Louis Freeh, was “structurally deficient, one-sided, and seemingly
advocacy-driven,” Okada’s Universal Entertainment Corp. (6425) said today
in a statement.
…The review by Chertoff found that Freeh’s law firm “viewed itself
as an advocate first and an impartial investigator second” in preparing the
report. Freeh and his colleagues “cherry-picked evidence and stretched to
reach conclusions that would be helpful to the Wynn Resorts Board,” according
to today’s statement.
This is not the only
situation in which serious questions have been raised about the quality of the
Freeh Group's workmanship.[4]
Emphasis is mine.
“It is a situation of ‘case not proven’, coupled with concern on the
part of the panel that the FIFA investigation [performed by Freeh] was not
complete or comprehensive enough to fill the gaps in the record,” CAS
[Court of Arbitration for Sport] said.
Evidence from the Report Itself
The Freeh Report
conveys a strong perception that it, like the one for Wynn Resorts,
"cherry picked evidence and stretched to reach conclusions," in this
case conclusions that would whitewash the 11/9/2011 Board's dismissal of Coach
Paterno and President Spanier without due process or due diligence. Page 14 of
the report says Paterno, Schultz, Spanier, and Curley decided to let Sandusky
retire in 1999, "not as a suspected child predator, but as a valued member
of the football legacy…" Most people know that a false public accusation
of a crime such as being a child predator is automatically libel or slander.
Mr. Freeh also knows that this accusation would indeed have been defamatory in
1999 because a police and Department of Public Welfare investigation had
explicitly exonerated Sandusky of being a child predator.
This is far from the
only item that suggests that Freeh's report was trying to prove the Board's
actions of 11/9/2011 right at all costs. Page 5 of Freeh's press release adds,
"At the very least, Mr. Paterno could have alerted the entire football
staff, in order to prevent Sandusky from bringing another child into the Lasch
Building." Most organizations would fire anybody, and rightly so, who
exposed them to liability by hinting to one's staff that somebody is a child
molester.
Freeh stipulates
(page 51), though, that a set of notes maintained by Coach Paterno objected to
the presence of any Second Mile children due to general liability concerns!
"Is this [Sandusky's access to
Penn State athletic facilities] for personal use or 2nd Mile kids? No to 2nd
Mile. Liability problems." The latter may well have related to the issue
as to whether Penn State's insurance would have covered Second Mile children
had they injured themselves on the premises, but this is something I admittedly
don't know.
With regard to Mr.
Sandusky himself, the Freeh report adds (page 81) that University counsel
(Cynthia Baldwin) said that the University could not legally revoke his access
to the athletic facilities because of his Emeritus status, and because he had
not been convicted of a crime. Page 106 reiterates this. Page 107 adds that
Baldwin said "his access could not be eliminated without the University
being sued." Why does the Freeh Report say, with the benefit of hindsight,
that Penn State should have done things its counsel said were illegal and could
get the University sued?
Page 4 of Mr.
Freeh's press release adds of the 2001 shower incident, "Further, they
[Paterno, Spanier, Curley, and Schultz] exposed this child to additional harm
by alerting Sandusky, who was the only one who knew the child’s identity, about
what McQueary saw in the shower on the night of February 9, 2001." Mike
McQueary himself alerted Sandusky at the time of the incident: "I made the
loud noise in an attempt to say, 'Someone’s here! Break it up!'"[5]
Penn State's report of the incident to The Second Mile also alerted Sandusky.
Does Mr. Freeh think Penn State should have "protected" the child by
withholding this information from Second Mile? Wouldn't that have been a
cover-up?
Alumna Eileen Morgan
provides a far more extensive assessment of Freeh's work,[6] and
it is worth reading. This was, of course, the Board of Trustees' job, and the
fact that the Board didn't do it means somebody else needs to step in.
Self-Proven Falsehoods
Mr. Freeh responded
to the Paterno family's assessment of his report as follows.[7]
Emphasis is mine:
On page 53 of his report,
Freeh wrote: "The Special Investigative Counsel requested an interview
with Paterno in December 2011. Through his counsel, Paterno expressed interest
in participating but died before he could be interviewed."
At the July 12, 2012 press conference announcing his findings, Freeh
said "We don't have the benefit of having spoken to Mr. Paterno, as I
believe he intended to do …"
[In response to the Paterno
family's condemnation of his report, in early 2013] "During the
investigation, we contacted Mr. Paterno's attorney in an attempt to interview
Mr. Paterno. Although Mr. Paterno was willing to speak with a news reporter
and his biographer at that time, he elected not to speak with us."
The first two
statements can be true, or the last one can be true, but all three cannot be
true. Freeh also told two blatant falsehoods about Coach Paterno's knowledge of
Sandusky's activities.[8]
Mr. Paterno was on notice for at least 13 years that Sandusky, one of
his longest serving assistants, and whose office was steps away, was a probable
serial pedophile. Mr. Paterno was aware of the criminal 1998 investigation into
Sandusky's suspected child sexual abuse. Indeed, the evidence shows that Mr.
Paterno closely followed that case.
This is a flat-out
falsehood because "13 years" takes us back (from 2012) to 1999, when
the police, and Department of Public Welfare, exonerated Sandusky of the
accusation in question. If we stipulate that Coach Paterno did follow the case,
this is what he would known. It sounds like Mr. Freeh, to use his own words
below, "purposefully ignored this evidence." [Update; in addition, Paterno would have also known that Sandusky had passed a background check to be a foster parent.]
Later, in 2001, another one of his assistants, Mr. McQueary, directly
reported to Mr. Paterno that Sandusky was sexually abusing a young boy in Mr.
Paterno's Penn State football locker room. The evidence shows that Mr. Paterno
purposefully ignored this evidence.
Mr. Freeh knows
fully well that Paterno did not "ignore the evidence;" he followed
Penn State's existing procedures, as well as the law, by taking the matter to
his superior. Mr. Freeh also knows, or ought to know, from McQueary's sworn
court testimony that McQueary merely inferred that Sandusky was sexually
abusing the boy, and did not actually see sexual contact. This means he did not
tell Coach Paterno what Freeh says he did. Dr. Jonathan Dranov testified under
oath that McQueary did not describe any specific sexual act to him either.[9]
McQueary himself was not sufficiently confident in what he thought he saw to
call 911, and neither was his father after McQueary spoke to him that evening.[10]
Conclusion and Requested Action
The Trustees who
fired Coach Paterno and President Spanier have effectively bet their
credibility on the Freeh Report, and therefore against the reputation and
well-being of Penn State. A determination that Freeh's work was defective, or
even worse, would reinforce the perception that they did not do their jobs. Senior
Trustees Kenneth Frazier and Karen Peetz, in particular, painted themselves
very deep into that corner when they affirmed Freeh's findings without
(apparently) bothering to read the report. When they did this without any vote
by the Board to accept those findings, they may also have violated the Board's
Standing Order, "no individual Trustee has the authority to act on his or
her own on behalf of the University or the Board."[11] (Trustee
Joel Myers later made it clear that the Board NEVER accepted the report's
findings.[12]) Karen
Peetz, in her capacity as Chairwoman, nonetheless affirmed Freeh's findings
explicitly on behalf of Penn State and the Board.[13]
The Board of Trustees, as the group that has paramount accountability
for overseeing and ensuring the proper functioning and governance of the
University, accepts full responsibility for the failures cited in the Freeh
Report.
Mr. Frazier added,[14]
"Administrative leaders -- including at the time President Graham
Spanier, Coach Joe Paterno, Athletic Director Tim Curley, and Senior Vice
President Gary Schultz -- failed to protect children when they had the
opportunity and failed to provide adequate information to the board, he said.”
This might explain
Mr. Frazier's loss of his temper to the extent that he later replied with
racist language to an alumnus who challenged the quality of Freeh's
workmanship.[15]
Other members of the
Board, including 11/9/2011 members such as Keith Masser, Keith Eckel, and Joel
Myers, have questioned the legitimacy of the Freeh Report's findings. 11/9
member Alvin Clemens deserves recognition and credit for joining the lawsuit
against the NCAA, which also challenges the Freeh Report. The bottom line is,
however, that the controlling majority of the Trustees have a vested interest
in not questioning Freeh's workmanship. Trustees Peetz and Frazier said
explicitly that they do not wish to have the Board review the report.[16] This,
I believe, makes it impossible for this Board to perform its duty to protect
the financial interests and reputation of the Pennsylvania State University.
This is why I am asking the Attorney General, Office of General Counsel, and/or
Legislature to intervene on Penn State's behalf.
[1] The Trustees in question bet
their credibility on the Freeh Report's findings of guilt, which are hostile to
the reputation and best interests of Penn State. It is therefore contrary to
their personal interests to repudiate Freeh's work, or have anybody else
repudiate it, despite the obvious benefits to the University.
[2] The Trustees' first question
should not have been, "Whose fault was it?" but rather, "What
policies did Penn State have in place in 2001 to deal with a situation of this
nature, and were they followed?" The answer regarding Joe Paterno is an
unequivocal "Yes." Whether the procedures and policies were adequate
is another question entirely, and this question is the principal focus of any
competent closed loop corrective action process.
[3] http://www.bloomberg.com/news/2013-04-22/okada-review-finds-wynn-resorts-probe-deeply-flawed-.html
Okada Review Finds Wynn Resorts Probe ‘Deeply Flawed’
[4]
http://www.businessweek.com/news/2012-07-19/bin-hammam-s-life-ban-from-soccer-overturned-by-top-sports-court
[5] http://www.independentmail.com/news/2012/jun/12/assistant-mcqueary-takes-stand-sandusky-case/
The reference adds that McQueary said that he and Sandusky looked into each
other's eyes, which leaves no doubt that Sandusky had already been
"alerted."
[7] http://www.pennlive.com/midstate/index.ssf/2013/02/paterno_freeh_report.html
[8]
http://espn.go.com/espn/otl/story/_/id/8933344/louis-j-freeh-statement-response-paterno-family-report
[9] http://onwardstate.com/2012/06/20/day-7/
[10] http://www.pennlive.com/midstate/index.ssf/2012/06/jerry_sandusky_trial_john_mcqu.html
[11] http://www.psu.edu/trustees/pdf/standingorders.pdf
Order V,
"Governance of the University," "Expectations of
Membership," item v.
[12] https://onwardstate.com/2013/03/01/trustee-joel-myers-rips-the-ncaa-and-freeh-report/
"…the Freeh Report was never accepted nor was it adopted by the Board
under the Charter of the University."
[14] http://news.psu.edu/story/147986/2012/07/13/university-leaders-answer-questions-freeh-report
[15]
http://notpsu.blogspot.com/2013/03/ken-frazier-racist-remark-on-tape.html
[16] http://espn.go.com/college-football/story/_/id/8378507/penn-state-board-trustees-does-not-plan-review-freeh-report
for Peetz's statement "At
the same time, chairwoman Karen Peetz said the board wouldn't do a detailed
analysis of Freeh's scathing report," and http://notpsu.blogspot.com/2013/03/ken-frazier-racist-remark-on-tape.html
for Frazier's: "It is crystal clear that we, as a board, cannot and should
not reinvestigate the Freeh investigation."
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