Wednesday, December 4, 2013

Freeh Report: Grossly Defective and Biased

Sent on October 31 2013

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
 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] Okada Review Finds Wynn Resorts Probe ‘Deeply Flawed’

[5] 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."
[11] Order V, "Governance of the University," "Expectations of Membership," item v.
[12] "…the Freeh Report was never accepted nor was it adopted by the Board under the Charter of the University."
[16] 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 for Frazier's: "It is crystal clear that we, as a board, cannot and should not reinvestigate the Freeh investigation."

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