Saturday, July 25, 2015

Defects in the Freeh Report; details and proof

This was sent to Penn State's Board of Trustees in 2014, which means no Trustee can deny knowledge of its contents.

Conflict of Interest 1
Freeh Report's Statement of Independence Omits MBNA-PSU Ties 2
Trial Publicity 3
Inflammatory Statements 3
Incomplete Research 4
Advice to Commit Libel or Slander? 5
Contradictory Evidence 7
Dishonesty 8
Dishonest Statements about Joe Paterno 8
Dishonest Statement About "Alerting Sandusky" 11
Leaks from Confidential Investigation 11
Discussion of Graham Spanier during Confidential Investigation 13

Conflict of Interest

"Bombshell: MBNA bank while Freeh was co-chair and general counsel was major corporate sponsor of Jerry Sandusky and Second Mile" reveals a potential conflict of interest that could have affected Mr. Freeh's ability to perform an impartial and independent assessment of the Jerry Sandusky scandal.[1] This could be construed as a motive to give Sandusky's charity, The Second Mile (TSM), a pass for responsibility for Sandusky's crimes at the expense of Penn State.[2]

The following objective evidence supports the blog's contention that Mr. Freeh did, in fact, hold a senior position at MBNA (now the Bank of America), and that MBNA was, in fact, a major corporate sponsor of Sandusky's charity.

(1)                 From Mr. Freeh's own biography on his law firm's web site,[3] "In 2001, Mr. Freeh joined MBNA America Bank in Delaware as vice chairman and general counsel." Freeh apparently left MBNA in 2006.[4]
(2)                 From Penn State's Web site, "February 28, 2000 University Park, Pa. -- MBNA America has agreed to be the lead sponsor for the MBNA Jerry Sandusky Testimonial Dinner and Roast, scheduled for Friday, April 14, 2000."[5] The reference adds, "'MBNA is proud to support Jerry Sandusky and a quality organization such as The Second Mile,' said Ric Struthers, senior vice chairman of MBNA America."
(3)                 The Second Mile's Annual Report for 2006 lists the Bank of America as an Angel sponsor ($50,000 and over), and Richard Struthers (on the last page) as a Second Mile Director.[6]
(4)                 " has also determined that Freeh's boss, MBNA's chief executive Ric Struthers, sat on the Smeal Business School Board of Visitors at Penn State and now sits on the Board of Trustees for the Second Mile, Jerry Sandusky's charity. Struthers helped coordinate the "MBNA Jerry Sandusky Testimonial Dinner and Roast," held by Penn State's athletics department to benefit the Second Mile, in 2000."[7]

This evidence gives the perception, right or wrong, that Freeh had an incentive to write his report in a manner that would whitewash TSM at the expense of Penn State. Tim Curley, whom Freeh accused of covering up for Sandusky, did inform Second Mile Executive Director Jack Raykovitz of Mike McQueary's concerns about Jerry Sandusky.[8]

Freeh Report's Statement of Independence Omits MBNA-PSU Ties

The declaration, "None of the Special Investigative investigators or attorneys attended the Pennsylvania State University or had any past or present professional relationship with the University" in the Freeh Report (page 11) is open to question. Mr. Freeh had, as far as I know, no direct connection with Penn State. His former employer, however, had an arrangement with Penn State to market credit cards to students and alumni. Here are Alumni Association credit cards from Bank of America with what have to be licensed images of Penn State's logo, Joe Paterno, and the Nittany Lion.[9]

The statement about independence also makes no mention whatsoever of The Second Mile. That is, it does not claim that Mr. Freeh, and his team, had no connections to TSM. As shown above, Freeh's former employer was a major Second Mile donor.

Mr. Freeh's colleague Omar McNeill, whom Trustee Kenneth Frazier copied on an E-mail to Mr. Freeh (cited in the section on Confidentiality) that consisted solely of a link to an ESPN article that leaked some of the Freeh Report's expected findings also was employed by the Bank of America and MBNA.[1]

Trial Publicity

Various commentators suggested that the Freeh Group's report was grounds for indicting Graham Spanier for perjury (which makes the report an implied accusation of a crime), and also that Joe Paterno committed perjury. Spanier was indicted later in 2012.

The evidence in this section relates to the press release[2] issued by Freeh Sporkin & Sullivan, LLP after its investigation of the Pennsylvania State University. The press release accuses identifiable individuals of serious character defects (protecting and enabling a child molester) and possibly crimes (perjury) on the basis of (1) admittedly incomplete research, (2) assumptions with incomplete and/or missing evidentiary support, (3) what looks like advice, with the benefit of considerable hindsight, that Penn State administrators should have committed libel or slander, (4) contradictory evidence, and (5) a clearly dishonest statement. This press release, and the findings of the accompanying report[3] also reflect very badly on the reputation of Penn State itself, and were cited by the NCAA when it levied unprecedented penalties against that university.

Inflammatory Statements

Freeh's press release says on page 4, "Taking into account the available witness statements and evidence, it is more reasonable to conclude that, in order to avoid the consequences of bad publicity, the most powerful leaders at Penn State University – Messrs. Spanier, Schultz, Paterno and Curley – repeatedly concealed critical facts relating to Sandusky’s child abuse from the authorities, the Board of Trustees, Penn State community, and the public at large. Although concern to treat the child abuser humanely was expressly stated, no such sentiments were ever expressed by them for Sandusky’s victims."

Pages 14-17 of the report itself make equally inflammatory statements about these named individuals.

 Incomplete Research

The same press release stipulates on page 3,

Some individuals declined to be interviewed. For example, on the advice of counsel, both Mr. Curley and Mr. Schultz declined to be interviewed. Also, the Pennsylvania Attorney General requested that we not interview certain potential witnesses. We honored those requests. Mr. Paterno passed away before we had the opportunity to speak with him, although we did speak with some of his representatives. We believe that he was willing to speak with us and would have done so, but for his serious, deteriorating health. We were able to review and evaluate his grand jury testimony, his public statements, and notes and papers from his files that were provided to us by his attorney."

It is particularly telling that the Freeh Group did not interview Mike McQueary, who admits that he could not say with certainty what he saw in the 2001 shower incident. McQueary's sworn court testimony includes, in fact, a statement that he would not have called police for what Sandusky was doing with the boy in the shower. Most of the report's conclusions seem to rely on the assumption that McQueary told Joe Paterno, and later Tim Curley and Gary Schultz, that he actually saw Jerry Sandusky having forcible sex with a child when the truth is that he never said any such thing, at least not under oath in the court transcript that is publicly available.[4]

Assumptions with Incomplete Evidentiary Support

The Freeh Report makes two damning conclusions that are based entirely on assumption, conjecture, and speculation.

(1)    Joe Paterno knew about the 1998 investigation of Sandusky. Page 20 of the report says, "Curley notifies Schultz and Spanier that he has touched base with Paterno about the incident. Days later, Curley E-mails Schultz: "Anything new in this department? Coach is anxious to know where it stands."

This appears to be based on Exhibit 2A in the report, whose subject is "Joe Paterno." There is no exhibit 1A, and it is particularly interesting that the original E-mail in which Curley writes, "I have touched base with the coach" [NOT "I have touched base with Paterno"] along with its missing subject line. The statement "the public welfare people will interview the individual Thursday" refers clearly to Sandusky and not Paterno. Also note that, by the time we get to Exhibit 2B, the subject line has changed to "Jerry."

It is entirely conceivable that Paterno was the coach who was anxious to know whether there was a problem with a man who was still working for him, but it is also conceivable that it was Sandusky, especially if he feared that his activities had been discovered. I do not know and, more importantly, Freeh could not have known without speaking to Tim Curley (or Joe Paterno).

(2)   Joe Paterno told Tim Curley to not report the 2001 incident to the Department of Public Welfare

Page 74 of the report says that Curley wrote in an E-mail, "After giving it some more thought and talking it over with Joe yesterday, I am uncomfortable with what we agreed were the next steps. I am having trouble going to everyone, but the person involved."

Freeh assumes without any proof that "Joe" told Curley to not take the matter to the Department of Public Welfare. It is easily conceivable, however, that Curley asked Paterno, "Joe, did Mike McQueary tell you anything beyond what he and/or you have already told us?" In other words, did McQueary see anything more serious than what had already been discussed?

If the answer was "no," it is easy to see why Curley might have been hesitant to do more than what he did: notify the Second Mile's Executive Director, Jack Raykovitz, who in turn notified two Second Mile Directors. Mr. Freeh's own report stipulates this on page 64. Again, however, I do not know, and neither does Freeh, but Freeh nonetheless made a very serious and inflammatory public accusation based on an assumption.

Advice to Commit Libel or Slander?

Page 14 of the Freeh 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…" The Freeh Report therefore seems to suggest that Paterno, Schultz, Spanier, and/or Curley should have exposed themselves, and Penn State, to a libel or slander suit in 1999 by describing Sandusky as a suspected child predator.  Only in 2012 did we discover that Sandusky was a child predator but, as of 1999, the only things that anybody knew were that (1) a police and Department of Public Welfare investigation had exonerated him of anything remotely resembling that, and (2) he had passed a background check to be a foster father.

Page 5 of the press release also adds what seems to be Mr. Freeh's advice that Joe Paterno and others should have committed legally actionable defamation (again in the context of what was known in 1998):

The evidence shows that these four men also knew about a 1998 criminal investigation of Sandusky relating to suspected sexual misconduct with a young boy in a Penn State football locker room shower. Again, they showed no concern about that victim. The evidence shows that Mr. Paterno was made aware of the 1998 investigation of Sandusky, followed it closely, but failed to take any action, even though Sandusky had been a key member of his coaching staff for almost 30 years, and had an office just steps away from Mr. Paterno’s. 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. Messrs. Spanier, Schultz, Paterno and Curley also failed to alert the Board of Trustees about the 1998 investigation or take any further action against Mr. Sandusky. None of them even spoke to Sandusky about his conduct. In short, nothing was done and Sandusky was allowed to continue with impunity.

This comes across as a suggestion that Paterno, Curley, Spanier, and Schultz should have effectively taken the law into their own hands by hinting to the football staff as well as the Board of Trustees that Sandusky was a child molester regardless of his exoneration by the 1998 investigation. Mr. Freeh's suggestion that the athletics department adjudicate a reported case of sexual misconduct in this manner also apparently contravenes the recently published NCAA regulations on sexual violence and harassment:[5]

"Cooperate with but not manage, direct, control or interfere with college or university investigations into allegations of sexual violence ensuring that investigations involving student-athletes and athletics department staff are managed in the same manner as all other students and staff on campus. (Page 4 of .pdf document, no page number shown)

"Athletics departments are held to the same federal requirements of all institutional staff and departments when it comes to education and reporting requirements. Athletics staff members are required to report any suspected or alleged sexual violence or harassment immediately to appropriate campus offices for resolution; the athletics department is not the appropriate staff to adjudicate a reported case of sexual assault." (Page 17 of document, numbered as page 13)

Page 64 of the Freeh Report adds what comes across as additional advice to commit actionable defamation.

This also defies common sense, because depicting as a "risk" somebody who has not been convicted of a crime, or even arrested for one, sounds a lot like defamation. All the actions Freeh says should have been taken also seem to conflict with Penn State's current policy for resolutions of allegations of sexual violence or harassment.[6] (Emphasis is mine.)

The University has a duty to respond to allegations of discrimination (including sexual harassment) and therefore cannot guarantee absolute confidentiality once allegations are disclosed to university officials. The confidentiality of information disclosed during the course of investigations or informal resolution efforts will be respected to the extent feasible and practical. This means that information about the complaint is shared only with those individuals within the University community who "need to know" in order to effectively investigate and/or resolve the complaint. Parties with a need to know may include witnesses or university officials who need to be informed of the complaint in order to cooperate with an investigation or to implement resolution. These parties will be advised that they should keep the information confidential in the best interests of all parties.

Hinting to members of Coach Paterno's staff, or the Board of Trustees, that Jerry Sandusky was a "risk" or a "suspected child predator" (before there was even probable cause to arrest him on charges of this nature) does not appear consistent with "information about the complaint is shared only with those individuals within the University community who 'need to know' in order to effectively investigate and/or resolve the complaint."

Contradictory Evidence

The Freeh Report condemns Paterno as shown for not trying to keep Second Mile children off campus, but it stipulates (page 51) that notes kept by Paterno objected to the presence of Second Mile children on campus for any purpose whatsoever. "Is this [Sandusky's access to Penn State athletic facilities] for personal use or 2nd Mile kids? No to 2nd Mile. Liability problems."

The report adds (page 81) that University counsel (Cynthia Baldwin) said that the University could not legally revoke Sandusky's 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." The Freeh Report therefore condemns Penn State's administrators for not doing something their attorney said could get them sued.

The report adds (pages 23 and 69) that administrator Gary Schultz asked Attorney Wendell Courtney for legal advice on the subject of reporting suspected child abuse. Freeh could not find out what advice Courtney provided, but it nonetheless accuses Schultz and others of a cover-up without having this information in hand. How does Mr. Freeh know that Courtney's advice was that the law did not require the nebulous incident to be reported? As far as I know, people who want to cover something up do not tell outside entities (TSM), along with their attorneys; they tell as few people as possible. Page 64 of the Freeh Report stipulates, in fact, that the Second Mile Executive Director to whom Tim Curley spoke about Sandusky then informed two TSM Trustees.


Mr. Freeh has made three clearly identifiable dishonest public statements regarding Joe Paterno. His report also includes what comes across as a dishonest statement about the targets of his investigation endangering one of Sandusky's victims by "alerting Sandusky" that he had been seen with the boy.

Dishonest Statements about Joe Paterno

(1) 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.

(2, 3) Freeh also told two 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 an outright falsehood because "13 years" takes us back (from 2013) to 2000, after the police, and Department of Public Welfare, exonerated Sandusky of the accusation in question but before the 2001 shower incident. Pages 19-20 of the Freeh Report acknowledge Sandusky's exoneration, so Freeh cannot possibly claim to not have known this. If we stipulate that Coach Paterno did follow the case, this is also what he would known, along with the fact that Sandusky had passed a background check to be a foster father. This suggests that Mr. Freeh, to use his own words below, "purposefully ignored this evidence," and I mean the evidence on pages 19-20 of his own report. (The annotations in the screenshot of page 20 are mine):

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, who in turn took it to The Second Mile. Mr. Freeh also knows, or ought to know, from McQueary's sworn court testimony[9] 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.[10] McQueary said he 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.[11] 

Dishonest Statement About "Alerting Sandusky"

Pages 14-15 of the Freeh Report condemn Joe Paterno, Graham Spanier, Tim Curley, and Gary Schultz for not trying to identify and contact the child (Victim 2) who was with Jerry Sandusky in the shower, and also for exposing the child to additional harm by alerting Sandusky to the fact that Mike McQueary saw him with the child in the shower.

(1)  McQueary testified that he alerted Sandusky to his presence by slamming a locker, and also that Sandusky saw him. Page 19 of the transcript for the Curley-Schultz hearing quotes McQueary, "I know they [Sandusky and the boy] saw me." This leaves no doubt that Sandusky knew he had been seen with the boy, regardless of any subsequent actions by the named individuals.
(2)  Even had this not been the case, Curley alerted Sandusky when he went to The Second Mile to report the incident. Page 64 of Mr. Freeh's own report stipulates, in fact, that TSM's Executive Director confronted Sandusky, thus "alerting" him if he had not already been alerted by McQueary. Does Mr. Freeh contend that Curley should have covered up the incident by not reporting it to TSM?
(3)  Mr. Freeh does not say how Paterno, Spanier, Curley, and/or Schultz were supposed to have tried to identify and contact the child without running their own amateur, and potentially illegal and/or defamatory, investigation, or without alerting Sandusky by confronting him and asking him to identify the child.

Leaks from Confidential Investigation

A Freedom of Information request by alumnus Ryan Bagwell uncovered an E-mail communication from Penn State Trustee Kenneth Frazier, who played a major role in hiring Mr. Freeh, to Mr. Freeh during an investigation into which the Trustees were supposedly to have no input. The E-mail in question is as follows:[12]

From: "Frazier, Kenneth C." <>
Subject: ESPN Report to shed light on PSU scandal
Date: July 6, 2012 7:12:48 PM CDT
To: "Omar Y. McNeill" <>, ""
<>, "Tomalis, Ronald" <>

[End of E-mail, except for boilerplate confidentiality statement]

The ESPN article in question reveals that elements of the investigation were leaked to CBS and NBC, and also leaks the prediction that the investigation would be very damning of Coach Paterno and Penn State's "football culture."[13] Emphasis is mine.

"Much of the focus will be on the culture of the football program, with findings that go back more than a decade," said a Penn State official briefed on the inquiry, who spoke on condition of anonymity. "It's going to be very tough on Joe (Paterno)."
…A batch of emails the Freeh Group uncovered -- leaked in recent weeks to NBC and CNN and confirmed by ESPN -- have raised fresh questions about Paterno's handling of the allegation about an incident involving Sandusky and a young boy in the Penn State locker room showers in February 2001.
…Initially, the Freeh Group had intended to allow Penn State's trustees to review a draft copy of its report before releasing it to the public. After the Faculty Council and others at Penn State criticized that plan last winter, the Freeh Group decided to release its final report, without review or prior input by the trustees, directly to the board and the public at the same time, several sources said.
"They did not want people to think the board had influenced the process," a source said.
If Board members were not to have any review or prior input into the investigation, then why did Mr. Frazier E-mail this link to Mr. Freeh? How did NBC and CNN obtain E-mails from a purportedly confidential investigation?

Furthermore, NBC's, CNN's, and ESPN's possession of this information contravenes the veracity of the statements on page 2 of Freeh's press release of July 12 2012: "To be absolutely clear, this public release is the first time anyone outside of our investigative team has seen this report." Page 3 then goes on to claim (emphasis is mine),

Unfortunately, portions of these emails have been leaked to the media. We strongly condemn and deplore those leaks. Let me assure you that none of these leaks came from the Special Investigative Counsel team. As you will see by reading our report this morning, not one conclusion, phrase, or any content of our report has been published or quoted prior to today.

If this is true, then why did ESPN report,
"Much of the focus will be on the culture of the football program, with findings that go back more than a decade," said a Penn State official briefed on the inquiry, who spoke on condition of anonymity. "It's going to be very tough on Joe (Paterno)." ?

Discussion of Graham Spanier during Confidential Investigation

The following E-mail exchange took place between Trustee Kenneth Frazier, Mr. Freeh, and former PA Education Secretary Ron Tomalis while Freeh's confidential information was still in progress.[14] This reads from the bottom up, noting that Frazier is replying to Freeh, and Freeh to Tomalis. Emphasis is mine.

From: Frazier, Kenneth C. <>
Sent: Thursday, April 12, 2012 8:31 AM
To: Louis Freeh
Cc: Tomalis, Ronald; Omar McNeil -- Freeh Group
Subject: Re: Former Penn State University president Graham Spanier to begin new job for federal government
Oh brother...
Sent from my iPad

On Apr 12, 2012, at 8:22 AM, "Louis Freeh" <> wrote:
Very interesting--we have done our job notifying the Federal
prosecutors regarding the latest information.
Sent from my iPhone

On Apr 12, 2012, at 8:18 AM, "Tomalis, Ronald" <
<>> wrote:
Seems someone might not have done their homework….
Former Penn State University president Graham Spanier to begin
new job for federal government
Sara Ganim
Patriot News
April 11, 2012
Former Penn State University president Graham Spanier said he
will soon begin working for the federal government on projects related to national security. … [The rest of the article is quoted]

[1] "Prior to joining Bank of America in 2006 (in connection with a merger), McNeill was employed by MBNA America Bank, N.A., where he held positions of Senior Executive Vice President and Deputy General Counsel…"
[4] Curley-Schultz preliminary hearing, December 16, 2011, court transcript of the testimony.

[9] Curley-Schultz preliminary hearing, December 16, 2011, court transcript of the testimony.


[2] This is by no means an accusation that TSM was, like Penn State, anything more than a victim of Sandusky's misuse of its resources. The key point is that Freeh ignored TSM, the source of Sandusky's victims, almost completely while he accused Penn State of covering up for Sandusky.
[4] This reference also shows that MBNA had relationships with Penn State, including an arrangement to promote credit cards to students and alumni.
[6]  I was also able to download a copy from
[8] The Freeh Report (page 24) stipulates that this happened, and also that TSM leadership concluded that the shower incident was a "non-incident."


 [10] "Prior to joining Bank of America in 2006 (in connection with a merger), McNeill was employed by MBNA America Bank, N.A., where he held positions of Senior Executive Vice President and Deputy General Counsel…"


[13] Curley-Schultz preliminary hearing, December 16, 2011, court transcript of the testimony.





[18] Curley-Schultz preliminary hearing, December 16, 2011, court transcript of the testimony.







1 comment:

  1. Excellent job laying out the details, point by point, of Louis Freeh's lies within his "report", and his glaring conflicts of interest that explain why he set up Joe Paterno.

    Freeh's blatant abuse of the media and public trust can only happen with the cooperation of our federal government. I say this because Freeh is a former Fed. He was a federal judge, and the Director of the FBI. So obviously he has federal ties. So why is our federal government looking the other way as Freeh uses public media and his federal "credentials" to falsely accuse and/or defame innocent American citizens? To me, it all suggests a criminal cabal element within our federal government. One that Freeh is obviously receiving support from. Freeh is being given carte blanche to falsely implicate any innocent private American citizen he wants. Richard Jewell did not recover from Freeh's televised lies portraying him as the Olympic Park bomber. Jewell was eventually awarded millions in damages. But it was too late, Freeh's lies cast a damning pal over the rest of Jewell's life. And so too, a truly great man, and an innocent man, Joe Paterno, had his lifework destroyed by Louis Freeh on national television. And our own federal government, by it's inaction and apathy toward Louis Freeh's crimes, is complicit in those crimes.

    Does anyone truly think for one minute that one man can continue to commit the kind of atrocities that Louis Freeh commits without intervention from our government? Freeh has caused too much damage for too many years for there not to be, at least, some kind of partial government protection of his actions. If I'm wrong, why are Louis Freeh's attacks on innocent people becoming more frequent and more blatant?