By Mark Esposito, Guest Blogger

Author’s note: This is the sixth installment in a series about the child sexual abuse scandal at The Pennsylvania State University that helped bring down iconic football coach Joe Paterno and three top officials at the premier public college in Pennsylvania.  

The Paterno family has released their long unawaited report critiquing the Freeh report entitled appropriately, CRITIQUE OF THE FREEH REPORT:  THE RUSH TO INJUSTICE REGARDING JOE PATERNO. Commissioned by the family through the mega-law firm of King & Spalding, the report on”The Freeh Report” (sometimes called the Special Investigative Counsel’s (SIC) report) predictably castigates Former FBI Director Louie Freeh for using “Rank speculation.  Innuendo.  [and] Subjective opinions.” to form the basis of his conclusion that Papa Bear Paterno knew quite a bit more about Jerry Sandusky’s sexual proclivities than he let on and actively participated in a cover up of monumental proportions. In contrast, Joe Paterno is pictured as a fine man undone by an unfair, inaccurate report that read more like  “an indictment” cooked up with the “unchecked power of a prosecutor, and [that] delivered unsupported but headline grabbing theories as fact.”

The wake from the scandal has toppled one university president, the athletic director, and an athletic department that  rode football like a bucking horse. The key points made by the Paterno family lawyers are that:

1. Freeh Never Talked to AD Tim Curley or Vice President Gary Shultz. He also never chatted with the D.A. , the Pa. Department of Public Welfare, or Penn State University’s Lawyers and Cops.  The Paterno family report notes it talked to lawyers for the criminal defendants (Curley & Shultz & Spanier) and interviewed Paterno’s son, Joe. Freeh did not and thus his report is so incomplete as to be worthless. Let’s look at this claim for a minute. No criminal defense attorney whose client is  facing a felony indictment (excepting maybe Sandusky’s own lawyer) would let’s his client talk to anybody about the charges before the matter is fully investigated. The odds of getting a criminal defendant on the record after an indictment are even slimmer as the Paterno family found out. So it’s hard to imagine how Freeh could have gotten either Curly or Shultz to talk about the case. Ditto for the district attorney or  the Welfare Department which is compelled by statute to clam up about any case they investigate. Think Penn State’s lawyers were going to breach attorney-client privilege? Come on now, that’s a “Pigs Fly” moment. For all the complaining about Freeh’s failure to talk to key players, King & Spalding admit they didn’t either. Oh, they got the party line from lawyers preparing to defend their clients in the latest round of  felony criminal indictments, but they never talked to the defendants themselves as they faulted Freeh for not doing. They grudgingly mention that Freeh did talk to one well-placed source, former Penn State President Spanier, but then go to lengths to tell us they talked to his lawyer, implying they got the real story. I guess K&S forgot to mention that Freeh tried to talk to Joe Paterno but he declined. Ol’ JoPa had time to talk to his biographer and the Washington Post before the report came out, but his employer’s attorney — not so much.

2. Freeh Was More Prosecutor Than Objective Reporter. King & Spalding acknowledge Freeh’s sterling reputation as a public figure but charge him with occupational bias and a mindset to get his man. In this case, Paterno. Disregarded in all of that is that Freeh is a former federal judge and  the former director of the nation’s top investigatory organization, the FBI.  If there’s a guy we wouldn’t expect to put his thumb on the scales of justice, it would be him. Freeh also interviewed 430 people and reviewed 3 million documents. Doesn’t sound like a guy seeking to cherry pick evidence as the Paterno Report accuses him of doing, but Paterno’s family is undeterred by those facts.  As an almost comic aside, you may ask how did the lawyers at King & Spalding deal with the claimed fatal bias of prosecutor Freeh? Why, they hired their very own prosecutor to tell them. That’s right, ol’ K&S hired former U.S. Attorney General and JoPa crony, Dick Thornburgh to consult on the report. What did ex-prosecutor Thornburgh,  the man who closed down a state highway lane so the Alabama football team bus wouldn’t have to wait in post-game Penn State  traffic,  say?  Well, of course, Penn State shouldn’t have used a prosecutor to investigate the matter —  but King & Spalding should have. Duh!  And another thing, the ex-Pa. governor said, disregard what I initially said. You know right after the Freeh report came out and I initially said on July 13, 2012 to the Allentown (Pa.) Morning Call   that it should be “required reading” in all colleges in the country. Well after further study and billable hours, it now seems that the Freeh report was “fundamentally flawed” and full of errors, according to Thornburgh.

He actually said lots more like  Paterno empathized with the victims of Sandusky’s abuse. Really, ex-Pennsylvania governor and Penn State fan, Thornburgh? We’re talking about the same  Joe Paterno  who had no idea of how man-on-child sexual abuse worked and  no idea what the word “sodomy” even meant? He’s the guy you say had a deep understanding and appreciation for the feelings and concerns of Sandusky’s victims? And why does Thornburgh feel that way? Well, because Paterno gave lots of money to charity and helped out with the Special Olympics, of course. Talk about non-sequiturs.

Humorously, the Paterno family report will later produce experts to say that Louie Freeh had no appreciation for the complexities of child sexual abuse either.  Yep, “doomed from the beginning” because of bad assumptions about the nature of the crime and those who commit them, they tsk-tsk. That’s right, the former director of the FBI doesn’t understand the ramifications or nature of child abuse. Well, maybe they should have asked Judge Freeh how much he donates to charity since that appears to be the sine qua non of understanding.

3. The Infamous Hidden E-mails Don’t Say What Freeh Says They Say.  You might recall the 2001 emails tucked away in a secret file in a locked drawer of Vice President Gary Shultz’ office. Those smoking guns went something like this:

On Feb. 26, 2001, 16 days after graduate assistant Mike McQueary told veteran coach Joe Paterno about seeing Sandusky sexually abuse a child in a  shower at the football building, Schultz suggests bringing the allegation to the attention of Sandusky, Sandusky’s charity and the Department of Welfare, which investigates suspected child abuse.

But the next night, Curley sent an email to Spanier, saying, “After giving it more thought and talking it over with Joe yesterday, I am uncomfortable with what we agreed were the next steps.” If Sandusky is cooperative, Curley’s email said, “we would work with him. …. If not, we do not have a choice and will inform the two groups,” according to the Freeh Report.

Spanier wrote back and agreed with that approach, calling it “humane and a reasonable way to proceed,” according to the report. But he also worried about the consequences. “The only downside for us is if 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.”

Seems pretty straight forward, right? Not so fast. The Paterno family wants to mince words. Here’s the explanation from Dick Thornburgh  After complaining that the University only keeps email’s written after 2004, and that we only have these from the secret file to go by, an exercise in grammar is thus  needed to defend Paterno:

The actual language in Exhibit 5G [the Curley 2/26/01 email] also does not support the SIC’s [Freeh’s Report] contention that Mr. Paterno was part of any “decision” not to report the incident to a law enforcement or child protection authority. Exhibit 5G reads, “After giving it more thought and talking it over with Joe yesterday– I am uncomfortable with what we agreed . . . .”

Mr. Curley uses the singular when discussing his proposed change in direction. If, as the SIC contends, Mr. Curley was so heavily influenced by Mr. Paterno then it would seem more likely that he would use the plural to demonstrate the fact that Mr. Paterno supported his proposal. Furthermore, there is no mention of what Messrs. Curley and Paterno discussed. The SIC’s failure to interview any of the parties to the e-mail creates a gaping hole in its analysis. The Freeh Report fails to recognize or discuss this gap.

Exoneration if I’ve ever seen it. There’s lots more about how everybody got it wrong: Curley was not Paterno’s errand boy despite his age and Paterno’s deigning to  grant his  permission to hire his former football player as his boss. Paterno did not wield undue influence on that campus, and anybody who says different is someone who doesn’t understand that Paterno’s motto was “Success With Honor,” and that he had one of the highest graduation rates of any coach. I kid you not. It’s right on page 34 of Thornburgh’s supplemental report. I guess Dick Thornburgh never talked to fired dean Vicky Triponey who clashed with Paterno over football player discipline and was let go for her refusal to believe  that all football players are more equal than other students. Maybe if he had, Thornburgh might have, in fairness,  included Triponey’s words that:

“The culture is deep,” she said. “The culture is making decisions based on how others will react, not based on what’s right and wrong.” It focused on the interests of those at “the top of the chain. Others at the bottom didn’t matter.”

There’s even lots more after all of that, and way too much to cover in this brief summary. (I promised myself I wouldn’t go over 1500   2000 words.) But I think you get the gist of the apologetic.

I invite you to form your own opinions. Here’s the ESPN page with access to all the documents. My take on it:  In America, you get what you pay for.

Source: ESPN

~Mark Esposito, Guest Blogger

UPDATE 2/13/2013 7:35 p.m.:

Judge Freeh issued the following statement in response to the Paterno Family Report:

“I respect the right of the Paterno family to hire private lawyers and former government officials¹ to conduct public media campaigns in an effort to shape the legacy of Joe Paterno.

However, the self-serving report the Paterno family has issued today does not change the facts established in the Freeh Report or alter the conclusions reached in the Freeh Report. Joe Paterno’s own testimony under oath before the grand jury that investigated this horrific case is of critical importance. Mr. Paterno testified in 2011 that he knew from Michael McQueary in 2001 that McQueary had seen Sandusky “fondling, whatever you might call it — I’m not sure what the term would be — a young boy” in the showers at the Lasch Building. Mr. Paterno explained, “[o]bviously, he was doing something with the youngster. It was a sexual nature. I’m not sure exactly what it was. I didn’t push Mike to describe exactly what it was because he was very upset.” Years later, Mr. Paterno would explain to a reporter he chose to discuss the event with that he told McQueary, “I said you did what you had to do. It’s my job now to figure out what we want to do.”

As detailed in my report, the e-mails and contemporary documents from 2001 show that, despite Mr. Paterno’s knowledge and McQueary’s observations, four of the most powerful officials at Penn State agreed not to report Sandusky’s activity to public officials. As made clear in the attachments to our report, on February 25, 2001, Messrs. Spanier, Curley and Schulz agreed to report Sandusky’s abuse to the Pennsylvania Department of Public Welfare. On February 27, 2001, these men agreed that reporting to DPW was not required, reasoning in the words of Graham Spanier that “[t]he only downside for us is if the message isn’t ‘heard’ and acted upon, and we then become vulnerable for not having reported it.” The only known, intervening factor between the decision made on February 25, 2001 and the agreement not to report on February 27, 2001, was Mr. Paterno’s February 26th conversation with Mr. Curley regarding what to do about Sandusky. Again, this conversation was memorialized in the contemporary email, where Mr. Curley said “[a]fter giving it more thought and talking it over with Joe yesterday – I am uncomfortable with what we agreed were the next steps.” Curley’s message continued:

I am having trouble with going to everyone, but the person involved. I think I would be more comfortable meeting with the person and tell him about the information we received. I would plan to tell him we are aware of the first situation. I would indicate we feel there is a problem and we want to assist the individual to get professional help. Also, we feel a responsibility at some point soon to inform his organization and [sic] maybe the other one about the situation. If he is cooperative we would work with him to handle informing the organization. If not, we do not have a choice and will inform the two groups. Additionally, I will let him know that his guests are not permitted to use our facilities. I need some help on this one. What do you think about this approach?

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. We also asked Mr. Paterno’s attorney to provide us with any evidence that he and his client felt should be considered. The documents provided were included in our report.

Further, the Pennsylvania Attorney General specifically requested our staff not to interview Mr. McQueary so as to not interfere with the criminal prosecution of Sandusky. Nevertheless, we had access to sworn testimony by Mr. McQueary at the preliminary hearing as well as the Sandusky trial, where Mr. McQueary was thoroughly cross examined by several defense lawyers. Mr. Curley and Mr. Schultz declined to speak with our staff on advice of their lawyers, despite our numerous interview requests.

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. 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.

I stand by our conclusion that four of the most powerful people at Penn State failed to protect against a child sexual predator harming children for over a decade. These men exhibited a striking lack of empathy for Sandusky’s victims by failing to inquire as to their safety and well-being, especially by not even attempting to determine the identity of the child who Sandusky assaulted in the Lasch Building in 2001.

In the past months, Penn State has made a dedicated effort to reform the problems that led to Sandusky’s ability to victimize children on the university campus. I trust that the changes and improvements that Penn State has put in place will help to build a constructive and protective environment where children will not again suffer abuse.

¹ In 1989, then-Attorney General Richard Thornburgh selected me from the thousands of federal prosecutors in the Justice Department to lead the investigation into the bombing murders of federal judge Robert Vance in Alabama, and NAACP leader Robbie Robinson in Georgia. Thornburgh then highly praised my investigative abilities, and the cases were successfully prosecuted. Thornburgh personally signed my certificate appointing me as a federal judge. The day after the Freeh Report was issued, Thornburgh said it would be required reading in colleges and had “vast implications.”

Former FBI Special Agent Jim Clemente, one of the Paterno Family experts, contacted me by email three weeks after the Report was issued. Clemente forwarded the sentiments of a child sex abuse advocacy group which asked him to convey its thanks for the ‘thorough work’ my team had done in the Freeh Report.

Attachments:
Note of 2/25/2001
Email of 2/28/2001