The Paternos’ Unconvincing Response

After the indictment of former assistant football coach
Jerry Sandusky, Penn State did something quite rare for an institution of
higher learning facing scandal–it hired a respected outside investigator
(former FBI director Louis Freeh) and gave him total access to the relevant
university records, including e-mails between key administrators. The resulting
Freeh Report used senior
administrators’ own words (including the e-mails of former president Graham
Spanier and former athletic director Tim Curley, both of whom are now indicted)
to show that the university’s top leadership made a conscious decision not to
report to police a report that a graduate football coach had witnessed Sandusky
raping a boy in the showers at Penn State’s football facility.

Regarding former football coach Joe Paterno, Freeh found
(thanks to an e-mail from Curley) that the administrators reversed a decision
to report Sandusky to police after Curley spoke to Paterno, and that Paterno
(contrary to what he told the Sandusky grand jury) knew of a 1998 investigation
into Sandusky for possible child rape. Finally, the report cited an excessive
deference to football and football culture as an explanatory factor in the
outcome of the case, citing in particular the actions of a janitor who had
witnessed Sandusky raping another boy in the football facility, who didn’t come
forward lest he be fired for making a report that harmed the team’s carefully
cultivated public image.

The Freeh Report was hardly a hit-job on Paterno. Freeh
maintained that there was no relationship between Sandusky’s seemingly
coincidental retirement in 1998 (the coach ultimately stayed on for another
year) and the child rape investigation of the same year. And the former FBI
head didn’t include in his report tightly-sourced reporting from
the Chronicle of Higher Education showing
that–despite his reputation as an academics-friendly coach who stressed the
moral values of his players–Paterno had interfered in Penn State disciplinary
proceedings against his players.

Having authorized such a comprehensive review, the
university leadership accepted Freeh’s findings and implemented most of his
proposed reforms. (As Stuart Taylor and I have noted elsewhere, the contrast with
Duke’s obfuscation and refusal to come to grips with the university’s failure
in the lacrosse case is instructive.) The NCAA, in turn, accepted Penn State’s
own report and imposed harsh sanctions on the university’s football program.

Some reaction to Freeh’s Report all but proved his claim
about the excessive influence of a football culture at Penn State. A group of
former faculty senate leaders–speaking, they claimed,
as “scholars”–rejected his findings with reasoning that wouldn’t pass muster in
a high school class. Spring 2012 brought election of two new trustees (Ryan
McCombie and Anthony Lubrano) who seemed to view their chief task as not safeguarding
the university but restoring Paterno’s legacy. A similarly-motivated,
self-described alumni group,Penn Staters for Responsible
Stewardship
, has spent months spinning implausible and often
wildly counterintuitive interpretations of the evidence that Freeh presented.
And the state’s governor, Tom Corbett, has sued the NCAA, seeking to annul the
sanctions to which the university leadership agreed.

The most important document from these Penn State
bitter-enders was released Sunday by the Paterno family, who had directed their
lawyers to investigate the Freeh Report. The report’s subtitle, “The Rush to
Injustice Regarding Joe Paterno,” avoided all subtlety. After an introduction
by Paterno’s attorney, the report included three separate documents: 40 pages produced
by former Pennsylvania governor and U.S. attorney general Dick Thornburgh
reviewing the Freeh Report’s treatment of Paterno; a 97-page effort by a former
FBI profiler attacking Freeh’s handling of how the university should have
handled the allegations against Sandusky; and a 45-page document penned the founder of The Johns Hopkins Sexual Disorders
Clinic.

 The Paterno family
report did little more than expand on claims the family made the day
after the Freeh Report was released, coupled with counterintuitive
interpretations of the evidence that Freeh assembled. The promised new evidence
was rare.

Beyond extremely heated rhetoric and frequent straw-men
arguments, the Paterno family document leveled three central critiques against
the Freeh Report. First, the report suggests that the Freeh report was so
procedurally flawed that it must be viewed as inaccurate. For instance, the
Paterno family notes that regarding three key witnesses, Freeh relied only on
contemporaneous e-mails sent by former AD Curley and former senior vice
president Schultz, and on the sworn testimony of former assistant football
coach Mike McQueary. (Curley and Schultz are under indictment, and they
declined to speak with Freeh under advice of counsel; the state attorney
general asked Freeh not to interview McQueary.) Yet the Paterno Report authors
didn’t interview any of these people, either; the report authors didn’t speak
with McQueary at all, and could get no closer to Curley and Schultz than their
attorneys, who unsurprisingly held Paterno blameless–as, of course, they hold
their clients blameless–without reconciling their assertion with the
contemporaneous e-mails Freeh uncovered.

On a second procedural matter, the Paterno Family faulted
Freeh for relying solely on a cache of e-mails retained by Schultz to analyze
the events of 2001, since the university’s full e-mail file dates only from
2004. (Schultz hadn’t produced these e-mails to prosecutors; Freeh’s
investigators uncovered them.) As Dan Wetzel of Yahoo Sports pointed out, however, the
Paternos’ argument on this point appeared to rest on a belief that Schultz, for
a reason or reasons unknown, chose to retain only those e-mails that inculpated
him and other key PSU figures in wrongdoing, while discarding any documents
that might have exonerated them. “While there may,” Wetzel noted, “have been
emails written that could exonerate Paterno, the fact Schultz didn’t have them
suggests that throughout this 13-year time frame the vice president purposely
kept a file that specifically excluded anything that might help Joe Paterno,
just in case it blew up into a scandal larger than anyone at Penn State
could’ve imagined.Why would he do that? Why would he specifically try to hurt
Paterno? Possible? Anything is possible. But again, is this even remotely
probable?”

The procedural path demanded by the Paterno Family would
have delayed–likely permanently–any independent report from Penn State, much
less action from the NCAA. At the least, the Paternos’ recommended procedural
posture would have meant that any report would have depended on the willingness
of Curley, Schultz, and McQueary to interview with Freehand future
technological developments that might have allowed Penn State to recover all of
its 2001 e-mails.  But the Paterno Family
Report offered no explanation of how or why the family’s preferred procedural
path would have altered Freeh’s conclusions, or would have better served the
university.

Finally, beyond the unconvincing procedural complaints,
the Paterno Family contended that Freeh misinterpreted the evidence he did
collect. For instance: Despite several contemporaneous e-mails implying that
Paterno knew of a 1998 investigation of Sandusky (and despite the common-sense
belief that a figure as well-connected as Paterno surely knew of a police
investigation into his most prominent assistant coach), the Paterno Family
maintained that the late coach truthfully told the Sandusky grand jury that he
knew nothing of the 1998 inquiry.

Until release of the report, the Paterno family had
implied a lapse of memory to explain the grand jury testimony; one of Paterno’s
sons told reporter Sara Ganim that “if (Paterno) knew, he must have forgotten.” In the
report, the family took a different course, suggesting
that 1998 e-mails
about “Coach” desiring to keep informed about the investigation referred not to
Paterno, but instead to Sandusky, or perhaps even the coach of another team. No
evidence–inferential or otherwise–exists to support such claims, which, if
true, would mean that AD Curley was conspiring with the assistant coach,
improperly passing him information about police activities, all the while
concealing this information from Paterno. The family’s report examined each of
Freeh’s findings regarding Paterno in a similar, less-than-credible fashion.

In defense of its authors, the Paterno Report had an
extremely difficult task. On the one hand, the authors needed to vigorously
represent their clients by presenting every conceivable argument against Freeh.
On the other, the report needed to come across as fair-minded, something more
than a document by and for Paterno apologists. In the end, the authors failed
to achieve this balance, and too often seemed to focus on satisfying the
Paternos’ understandable disdain toward Freeh’s findings.

Some examples:

Trying to present Paterno as a sympathetic victim, the
report incredibly cited “the removal of the now ex-head football coach Joseph
Paterno’s honorary statue from a previous place of prominence.” Trying to
position Paterno as a figure who lacked the power to shape university decision-making,
the document faulted the Freeh Report for stating “without any credible
evidence that Mr. Paterno wielded excessive influence at the University.”
(Universities, it seem, routinely build statutes of existing but
non-influential football coaches, and then position them in a “place of
prominence” on campus.) And trying to minimize Paterno’s actions, the report cites an expert who claimed that
McQueary presented Paterno with “some amorphous incident” that “at worst”
caused Paterno to believe that “Sandusky was a touchy-feely guy who had
boundary issues.” Yet Paterno himself testified to the grand jury that McQueary
told him that Sandusky “was fondling . . . a young boy” in the football
building showers, and that “obviously,
[Sandusky] was doing something with the youngster. It was a sexual nature.” How
that testimony described an “amorphous incident” the expert never revealed.

Perhaps the report’s strangest
item came from Dr. Fred Berlin,
founder of
The Johns Hopkins Sexual Disorders Clinic
.
Berlin accuses Freeh of acting on “sketchy” information and making
“unsubstantiated inferences.” Then, despite this professed concern with acting
on “sketchy” information and making “unsubstantiated inferences,” Dr. Berlin
offered commentary on the “character” of Paterno (a man he never met), since
“evidence
of one’s character is often more publically accessible” The conclusion of the
Paterno family’s hired expert? The late coach “was well known to be an honest
man of integrity.” The Paterno Family
Report did not explain why Berlin, an expert on pedophilia, would have any
special expertise to evaluate Paterno’s character.

It’s hard to imagine that
anyone but the truest of true believers will be persuaded by this document.

KC Johnson

KC Johnson is a history professor at Brooklyn College and the City University of New York Graduate Center. He is the author, along with Stuart Taylor, of The Campus Rape Frenzy: The Attack on Due Process at America's Universities.

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