The Spanier Indictment

In a move that should come as little surprise, former
Penn State president Graham Spanier has been indicted for perjury, conspiracy,
obstruction of justice, and child endangerment. The indictments come in the
wake of the Freeh Report’s revelations that–after Penn State’s former athletic
director proposed not reporting to police an allegation against Jerry
Sandusky–Spanier had e-mailed administrators to say that “the only downside for us is if the message
isn’t ‘heard’ and acted upon, and we then become vulnerable for not having
reported it. But that can be assessed down the road. The approach you outline
is humane and a reasonable way to proceed.”

The basics of the grand jury
indictment against Spanier mirror the conclusions of the Freeh Report–that senior
Penn State administrators, claimed the state’s attorney general, participated
in a “conspiracy of silence” regarding Sandusky’s crimes, “working to actively conceal the truth, with total disregard
to the suffering of children.” The presentment makes
no claims against Paterno, the attorney general said, because Paterno’s death
marked “the end” of any potential legal ramifications for his behavior.

The grand jury presentment
went into greater detail than did the Freeh Report on two matters. First, in justifying
the perjury charge, the document claimed that “Spanier has repeatedly
misrepresented the level of his knowledge about the investigation.” Both at the
time and in his media barrage this summer, Spanier portrayed himself as
detached and essentially unaware of matters relating to Sandusky, whether in
1998, 2001, or 2011. But the grand jury document indicates that the former
president specifically requested updates from the former Penn State counsel,
Cynthia Baldwin, about the progress of the grand jury inquiry–and seemed
concerned about former coach Joe Paterno hiring his own counsel during the
investigation. According to Baldwin, Spanier mused with her about what type of
information Paterno could be providing to the grand jury.

Second, Spanier’s repeated
excuse as to why he didn’t keep the trustees informed–that he was bound by
grand jury secrecy rules–appears to have been an outright lie. According to the
presentment, the grand jury foreman had told Spanier that the president was
free to discuss his testimony publicly.

Beyond the specifics of the
case, the indictment raises questions about two other entities. First: the NCAA, which leveled draconian
(but appropriate) sanctions against Penn State after the Freeh Report’s
release. Yet while the organization often comes down hard on student-athletes
(or, less often, coaches) who violate its rules, nothing in the sanctions
applied to Spanier, at one point an influential figure within the NCAA. ESPN’s
Jay Bilas has been the most outspoken figure on the NCAA’s apparent double
standard in not sanctioning the college presidents who make up its membership, and
he tweeted after the indictment to wonder why the NCAA hadn’t held Spanier
“accountable” based on the Freeh Report’s findings. Spanier, of course, is
entitled to a presumption of innocence on the criminal charges. But the NCAA doesn’t
use such a standard, and routinely punishes student-athletes on the basis of
far less damaging information than what was presented about Spanier in the
Freeh Report.

Second:
the Penn State faculty leadership, especially the University Faculty Senate. In
late August, more than two dozen former leaders of the senate issued an open
letter sharply criticizing the Freeh Report. “As a document in
which evidence, facts, and logical argument are marshaled to support
conclusions and recommendations,” they wrote, “the Freeh Report fails badly. On
a foundation of scant evidence, the report adds layers of conjecture and
supposition to create a portrait of fault, complicity, and malfeasance that
could well be at odds with the truth.”
As with many critics of the Freeh Report,
these faculty leaders declined to identify any errors in the report, even as
they used space in their letter to celebrate their research abilities.–“as scientists
and scholars.”

Now, however, the state Attorney General
has filed charges along lines very similar to those identified in the Freeh
Report. Will these scientists and scholars have the courage of their
convictions and denounce the indictment as they denounced the Freeh Report? I’m
guessing they’ll choose silence on this occasion.