Wednesday, August 19

Fina Feared Being "Nifonged" By Kane (Part 1)

Attorney General Kane stated the emails in the "porngate" prompted Fina's attack on her, however, Fina also feared that Moulton's investigation could cause him to be disbarred.  


By
Ray Blehar

At her press conference, Attorney General Kathleen Kane stated that she broke no laws and that the court system and subsequent charges were being used as a "stealth weapon" to discredit and silence her.

Sound familiar?

In November 2011, former AG Linda Kelly and her lead prosecutor, Frank Fina used the same tactics to silence and discredit PSU officials Timothy Curley and Gary Schultz -- falsely charging them with failure to report and perjury.  Had they not been charged, their accounts of the 2001 incident could have been used to impeach the testimony of Mike McQueary during the Sandusky trial.

Don't take my word for it, though.

Sandusky trial Judge John Cleland mentioned that the Curley and Schultz charges could have been used as a means to "hamstring the defense" (see page 169).   Judge Cleland then went on to caution Fina about using the email evidence and Schultz file for the Sandusky prosecution, stating it might "risk your case against Curley and Schultz."  

Unbelievably, prosecutor McGettigan replied, "but we're not going to try that case."

What was going on?


The notes of former PSU President Rod Erickson (below) confirm that on or about January 2012, the OAG was keeping Old Main informed of the ongoing grand jury investigations of Sandusky, Curley, Schultz, and Spanier.   The amount of information shared by the OAG was far more than current AG Kathleen Kane allegedly shared with the Philadelphia Inquirer

But the most important fact contained in the notes was that Fina shared his case strategy with Old Main.  Specifically, that he "expected" Curley and Schultz "to flip"(on Spanier). 

Fina's "flip" strategy is at the root of the misconduct in the Conspiracy of Silence (CoS) case.    If the flip had happened, Fina would have made the case against Spanier on the testimony of Curley and/or Schultz -- and very likely, Cynthia Baldwin.  Securing a plea deal would have likely ensured that Fina's ethical violations would have remained hidden.    

When the flip didn't happen -- and Kane was elected on her promise to investigate the Sandusky investigation -- Fina looked in the mirror and saw Mike Nifong.


The PSU Case Is Duke Lacrosse on Steroids

Fina and Nifong: Mirror misconduct?
Former DA Mike Nifong was disbarred over the Duke lacrosse case, in which he filed charges based on the inconsistent and unsupported testimony of the key witness, suppressed exculpatory and other relevant evidence, used questionable evidence, and made highly prejudicial statements in the press.

The North Carolina State Bar Committee called the case a "fiasco" and said Nifong's actions involved "dishonesty, fraud, deceit, and misrepresentation."


Frank Fina's actions in the CoS case were remarkably similar to Nifong's, however the stakes in the were much higher in Pennsylvania than they were in North Carolina.  Nifong was using the Duke rape allegations to revive his struggling election campaign.  

Fina used McQueary's dubious rape story to paint PSU officials as enablers of Sandusky's abuse. The goal, likely set by his boss, Tom Corbett, was to scapegoat Spanier for directing Curley and Schultz not to report the incident.  The abuse of grand jury secrecy rules in leaking the presentment (and other evidence) was done to deflect attention away from the Commonwealth's child protective services (and the state police's) failures to protect children from Sandusky.  Had the truth gotten out, the Commonwealth (e.g., Centre County CYS) likely would have been facing lawsuits -- not Penn State.

McQueary Gave "More Vivid" Description in 2010

It is a matter of public record that McQueary's testimony and public statements about the 2001 incident have been consistently inconsistent.  

What is not on the public record - until now - is that Erickson notes confirm that McQueary gave a "more vivid" description to "Detectives - ten years later" than he did in 2001.  The notes also reveal the tortured reasoning by prosecutors to use McQueary's unreliable and unsupported testimony to charge PSU officials.

Lines 1-5:  McQueary denied seeing anything sexual to Dr. Dranov.

Lines 6-7: McQueary lied to Dranov and his father about what he saw. 

Lines 8-9:  Dr. Dranov's, Curley's, and Schultz's stories seem "same."

Lines 10-11: McQueary told different version to Curley and Schultz than he did to Dranov and his father.

Lines 17-21:  When questioned "by police.. Detectives - 10 years later," McQueary gave "more vivid" version "than before." 




It appears that lead prosecutor Fina was pulling a Nifong when he charged Curley and Schultz with failure to report and perjury and then approved a grand jury presentment that stated McQueary was an "extremely credible" witness.  

Fina also had to ignore physical evidence to believe McQueary's story.


No "line of sight" 

Based on the description of the incident provided by Dr. Dranov and the physical properties of the locker room, it is highly probable that McQueary did not see Sandusky and the boy while they in the showers.   According to the notes, the obstruction (and victim) were positioned at the "far right" of the shower room (on the floor plan). "Other three behind" refers to the number of shower heads that would be positioned behind the victim. 

If the victim and Sandusky were positioned in that location, they would have been out of the "line of sight" of McQueary, who testified he looked into the shower through the mirror. 

Lines 20-21:  "kid looked out from behind the obstruction."

Lines 22-23:  "Actually far right, other 3 behind"   "line of sight"

While I believe that McQueary heard slapping sounds and saw Sandusky and a minor youth exit the shower, the physical properties of the locker room made it impossible for him to see in and observe contact.  I also believe Fina knew that to be the situation, but didn't let that evidence stand in the way of his prosecution of PSU officials.  The janitor incident is germane.


Spanier's version

Graham Spanier's grand jury testimony also was the same as Curley and Schultz's -- as it should have been because they informed him of the incident.  

The former PSU President testified (page 14) that "they were horsing around in the shower. I believe that was the language that was used."  When Fina (page 24) asked if it was possible the report was "sexual in nature," Spanier (page 25) responded, "No... what was reported was not a report of any activity that was sexual in nature."

Once again, another individual testified to not being informed of anything sexual being reported about the 2001 incident.  For those keeping score at home, that was five people, including Mike's father, who testified that explicit details were not shared by Mike. 

Fina would eventually charge three of the five with perjury, even though there was no corroboration of Mike's account.

Conclusion
When Duke accuser Crystal Mangum changed her story and was no longer certain she was raped, Nifong dropped the rape charges.  

Conversely, Fina continued to press forward with the perjury and failure to report charges even though detectives believed McQueary gave a more vivid description in 2010 than he did in 2001. 

Weighing the evidence so far, it appears that Fina's conduct in the CoS case was more unethical than Mike Nifong's at Duke.  But this is just the beginning of the story.

Next: Part 2: Evidence Suppression

Monday, July 27

JimmyW: Timeline of Access to the Schultz file

JimmyW provided an excellent diagram of who had access to the Schultz file.  The diagram has been re-released in the twitter-verse and on BWI Rivals/McAndrew Board.

This is an excellent supplement to Eileen Morgan's latest article on the so-called "secret file."  The evidence in the case points to removal of the file by then PSU Counsel Cynthia Baldwin right after being informed about it by Gary Schultz.



There is rock solid evidence, thanks to Louis Freeh and the PA OAG, that the entire contents of the Schultz file were not revealed to the public when the Freeh Report was issued and were also suppressed during Sandsuky trial.

There is rock solid evidence that the PSU Board and Erickson colluded with the OAG on the railroading of Curley, Schultz, and Spanier when they withheld this evidence.  However, that's not all they withheld and the story will get worse very soon.

Stay tuned.






Sunday, July 26

Morgan: OAG Had Schultz File in January 2011


The contents of the (original) Schultz's "secret file" may be the reason PSU is fighting the release of the Freeh source materials..

by
Eileen Morgan

For three and a half years now, former Penn State officials have been awaiting their day in court.  As most following this story are aware, Tim Curley, Gary Schultz and Graham Spanier have been criminally charged for their alleged roles in the Jerry Sandusky scandal. 

The Freeh Report and the Pennsylvania Office of Attorney General (OAG) have convinced most of the world that:

1) Gary Schultz obstructed justice by hiding a ‘secret file’, which contained information on the 1998 & 2001 incidents involving Jerry Sandusky and young boys, that he kept hidden from authorities, 

2) Louis Freeh ‘discovered’ this ‘secret file’ and other emails which became the smoking gun allegedly ‘proving’ that Curley, Schultz, & Spanier, along with Joe Paterno were involved in an elaborate cover-up that allowed Sandusky to molest children for 14 years.

The evidence, however, seems to prove that Schultz actually made this Sandusky file known to authorities, but those authorities – Cynthia Baldwin and the OAG - are the very ones who kept the file a secret until it was safe for Louis Freeh to ‘discover’ it.

CHARGES

On November 4, 2011, Gary Schultz and Tim Curley were charged with Perjury and Failure to Report in connection with the Sandusky scandal.  About a year later, more charges were added and Graham Spanier was also indicted.  Note that the initial Failure to Report charge has a statute of limitations of 10 years.

Let’s start with the original charges filed in November 2011-Perjury and Failure to Report.  Analyzing the two charges we find that:

1) Perjury was based only on Curley and Schultz's testimony that they were not told of sexual abuse by McQueary; and,

2) Failure to Report would have had to occur on or after November 5, 2001 to keep within the 10 year statute of limitations.

Perjury is:
1.       A false statement.
2.       On a material issue.
3.       Made willfully and with knowledge that it was false.
4.       Under oath.
5.       Before an authorized tribunal, officer, or person.

According to the Grand Jury Presentment, the only basis presented for perjury was that the Grand Jury found Mike McQueary’s testimony to be ‘extremely credible’ and found ‘portions of the testimony of Curley and Schultz not to be credible.’  

But is one witness’s word against another witness’s word enough evidence to file perjury charges?

According to defense attorneys for Curley and Schultz, perjury has to be ‘more than a he said/she said’ and cannot be just an ‘oath against an oath’ as stipulated under the PA statute Section 4902, Section F.
This means the OAG used McQueary’s alleged ‘credibility’ as a front for the perjury charges, but had some other knowledge that Curley and Schultz were not giving truthful statements in their testimonies. 

But, some other knowledge of what?

 (I would like to clarify that I am not claiming Schultz’s notes or any emails actually prove any PSU official committed perjury or conspired to cover up Sandusky’s crimes. To this day, there has been no evidence of such crimes. The courts will rule on the charges if these cases ever go to trial.  My desire is to examine the steps taken by all involved and shed light on the malfeasance of this case, in particular the apparent malfeasance of Cynthia Baldwin and the OAG.)

SCHULTZ’S FILE AND THE MARCH 2012 PERJURY PARTICULARS

Let’s begin with the fact that a file, compiled by Schultz between 1998 and 2001, and containing information on Sandusky’s behavior with young boys in 1998 and 2001 did exist in a drawer in his former office at PSU up until November 2011.

This file was neither ‘secret’ nor ‘discovered’ by Freeh in May 2012 because we now know copies of the file were turned over to the OAG in April 2012 by Schultz and also by his assistant Kim Belcher.  However, I believe a hard copy of this file was in the hands of the OAG in January 2011 before the PSU officials testified.

It is important to remember that Schultz retired from PSU in June 2009.  When he was subpoenaed in January 2011, he was no longer employed at the university and thus had no access to his former office.

HE SAID, SHE SAID

In late 2010, PSU general counsel Cynthia Baldwin was handling subpoenas issued by the OAG for the PSU officials instructing them to turn over information relating to Sandusky and to appear in court to testify at the Grand Jury hearing.

What exactly was discussed between Baldwin and the PSU officials is not known, but on November 1, 2012, Schultz filed a pre-trial motion claiming, among others things, that he informed Baldwin in early January 2011, in response to the aforementioned subpoenas, that he ‘thought there might be a file relating to Sandusky in the office of the senior vice president’ (his former office to which he no longer had access) and that ‘reviewing such notes and documents would help his memory and allow him to testify more accurately.’  In her legal opinion, he said, she told him not to look for or review any documents or discuss the case with anyone.

Ironically, on October 26, 2012, just days before this very motion was filed, Baldwin testified under oath that she was never informed by Schultz of the existence of any file.  On page 20, OAG prosecutor Frank Fina said that ‘we also know that Mr. Schultz had a file regarding Jerry Sandusky in his office’ and that ‘there were handwritten notes and emails pertaining to the 1998 and 2001 crimes of Mr. Sandusky. Did he (Schultz) ever reveal to you the existence of that Sandusky file or any of its contents?’  Baldwin answered, ‘Never.  He told me he didn’t have anything.’

Within days of each other, Baldwin and Schultz gave the court two opposing accounts regarding Schultz’s disclosure of the Sandusky file back in early 2011.  Only one account can be true.  The other is a lie.  Given the information we have to date, we can vet both accounts and reasonably conclude which account passes the litmus test.

PROCESS OF ELIMINATION

Vetting Baldwin
Let’s assume Baldwin is telling the truth.  That means Schultz never mentioned the file to her in early January 2011 when Baldwin alleges she went to Schultz, Curley, and Paterno with Subpoena 1179 asking for any and all information regarding Jerry Sandusky, as well as with a subpoena for each man to testify before the Grand Jury. If Schultz and the others were in fact covering up for Sandusky, as alleged by Freeh and the OAG, then at this point in time, they would have been on heightened alert to deny any knowledge of Sandusky’s crimes and to make sure any evidence that could be used against them was suppressed.  Assuming there was a cover-up, it makes perfect sense that Schultz would never have informed Baldwin of this file in January 2011. 

It makes sense except for one pesky little fact.

As I mentioned earlier, in June 2009, Schultz retired as senior VP of Finance and Business after almost 40 years of service at PSU. However, in September 2011 he was temporarily rehired and named interim senior VP for Finance and Business while the University conducted a national search to fill the position.

So, eight months after Schultz was subpoenaed for information and testified at the Grand Jury hearing, he was back in his office at PSU: the very office that contained the Sandusky file.

Again, assuming Baldwin is telling the truth and Schultz never mentioned the file-for ‘obvious’ reasons, this would have been the most fortuitous break in the entire cover-up.  Schultz now had access to the ‘secret’ Sandusky file with the means and motive to destroy all incriminating evidence that could be used against him and the other PSU officials. 

The only problem is that during those two months back at PSU, with complete access to the ‘secret’ file, Schultz didn’t remove it and he didn’t destroy it. 

We know this because his assistant Kim Belcher testified at the July 2013 hearing that Schultz had called her in November 2011, after he had been charged, and asked her to get his ‘transitory file’ from his office.  She retrieved that file for him and on her own found the Sandusky file. She made a copy of the Sandusky file, accidentally gave the original to Schultz and kept the other copy for herself.  They both turned over their files to the OAG in April 2012. 

Belcher’s testimony, of course, blows holes in Freeh’s claim that his team ‘discovered’ Schultz’s Sandusky file.  Freeh said, “He (Schultz) actively sought to conceal those records. We found them in conjunction with the attorney general. They’re very critical notes, very critical records … it was an active case of trying to conceal evidence, you know. You don’t do that. It’s a dumb thing to do.”

At this point, it is clear, that Freeh did not ‘discover’ anything; the OAG (or Penn State) gave Freeh a copy of the file that Schultz turned over. And, the PSU IT department found and turned over the emails to the OAG who then handed them over to Freeh. The fact that Schultz had the opportunity to alter, remove, and/or destroy his Sandusky file when he was rehired in the fall of 2011 but didn’t, suggests very strongly that he was not protecting a ‘secret’ file, was not concerned about his grand jury testimony, and was not part of some elaborate cover-up.

Based on Schultz’s actions from January-November 2011, there is no evidence that he concealed or wanted to conceal the Sandusky file, just the opposite actually.  And therefore, there is no reason why he wouldn’t have mentioned it to Baldwin.

But, let’s dig deeper.

Vetting Schultz
Now let’s assume Schultz is telling the truth about the file.

In January 2011, Baldwin’s primary directive, ordered by the OAG, was to make sure the PSU officials turned over anything and everything related to Sandusky.

Schultz claims he told Baldwin there may be a file relating to Sandusky in his former office.  According to Schultz, she told him not to look for it.  But, it was her legal obligation to the courts to turn over any evidence disclosed to her.  As an officer of the court (and a former PA Supreme Court Justice) it is hard to imagine that she would shirk her legal duties and not check out every lead the PSU officials told her. Therefore, it is highly likely that she did indeed check for a Sandusky file in Schultz’s former PSU office, then occupied by Al Horvath. If she did, she would have found it, because we now know it was there.

A few days later on January 12, 2011, after meeting with Baldwin, Schultz testified under oath at the Grand Jury hearing.  He was asked:  ‘Do you believe that you may be in the possession of any notes regarding the 2002 incident that you may have written memorializing what occurred?’  

Schultz answered: ‘I have none in my possession.  I believe that there were probably notes taken at the time.  Given my retirement in 2009, if I even had them at the time, something that old would have probably been destroyed.  I had quite a number of files that I considered confidential matters that go back years that didn’t any longer seem pertinent.  I wouldn’t be surprised, in fact, I would guess if there were any notes, they were destroyed on or before 2009.’

In essence, he is saying that notes were probably taken and that he did keep confidential files, but by this point in time, in conjunction with his retirement, they probably were destroyed.

That sounds very similar to what he claims he told Baldwin just days earlier: that there might be a file relating to Sandusky in his former office.

In addition, the following email shows that on January 10, 2011, Baldwin called Wendell Courtney, PSU legal counsel in 2001, after she first spoke with Schultz regarding the subpoena. Courtney tells Schultz that Baldwin asked ‘what I remembered about JS issue I spoke with you and Tim about circa 8 years ago.’  It appears not only did Baldwin know to call Courtney but presumably knew for a fact that he spoke with Schultz back in 2001 regarding Sandusky.  In other words, Baldwin didn’t call Courtney asking if he ‘knew anything about 2001,’ but asked precisely what ‘he remembered’ about the 2001 Sandusky discussion.  



The email also reveals that Schultz and Courtney had recently ‘chatted about this’ 2001 issue.  That makes sense because Courtney was PSU legal counsel in 2001 and Schultz had conferred with him at that time. After being subpoenaed, it is understandable that Schultz would call him regarding the 2001 incident.
It certainly wouldn’t be out of the ordinary for Baldwin to call the former legal counsel from 2001 to ask him what he might have known.  But, the wording in the email comes across as if Baldwin knew for a fact that Schultz spoke with Courtney back in 2001 and she was calling him specifically to ask ‘what he remembered.’

This would suggest that when Schultz spoke with Baldwin and mentioned the possibility of a Sandusky file, that he also mentioned the 2001 discussion he had had with Courtney, especially since Schultz had just recently spoke to Courtney as per the email.

In any event, this email confirms that Baldwin was actively gathering information regarding Sandusky, either on her own or by following up on a lead that Schultz most likely disclosed to her. She also retrieved the 1998 police report around this same time period. If she retrieved the police report and made a call to Courtney, wouldn’t it be logical, as her duty to the court, to follow up on the Sandusky file lead as well?
At this point it appears the truth is in favor of Schultz.  But there is one more analysis I believe shows beyond all doubt that Schultz did indeed inform Baldwin of the file. 

GRAND JURY ANALYSIS

When you analyze the questions the OAG asked Paterno, Curley and Schultz, it seems to be clear that Schultz’s file was in the hands of the OAG, and they were using it as a guide (perjury trap) during questioning.  If the OAG did indeed have this file, it can only mean that Baldwin followed up on Schultz’s lead and retrieved the Sandusky file in his former office, made a copy for the OAG, and returned the original file back to the drawer.

OAG’S KNOWLEDGE AS OF 1-12-11
We need to go back in time and recount exactly what the OAG knew regarding the 2001 Sandusky incident at the time of the Grand Jury hearings of Paterno, Curley and Schultz on January 12, 2011.

At this point in time they had:
·         The 1998 Police Report regarding an investigation of Sandusky with boy(s) in a shower,
·         Mike McQueary’s testimony of the 2001 incident and what he allegedly told Paterno, Curley and Schultz, and
·         Police Interviews with each man.

It is vital to remember that the OAG supposedly does NOT have Schultz’s Sandusky file of notes/emails.
The following chart shows specific OAG questions asked or not asked of each man during the GJ hearing.

GJ QUESTIONS
PATERNO
CURLEY
SCHULTZ
RE: Notes, Memorialization
NONE
NONE
Q Do you believe that you may be in possession of any notes regarding the 2002 incident that you may have written memorializing what occurred?
A I have none of those in my possession. I believe that there were probably notes taken at
the time. Given my retirement in 2009, if I even had them at that time, something that old would have probably been destroyed. I had quite a number of files that I considered confidential matters that go back years that didn't any longer seem pertinent. I wouldn't be surprised. In fact, I would guess if there were any notes, they were destroyed on or before 2009.
Q Are you aware of any memorandums or any written documents, other than your own notes, that existed either at the time of this incident or after this incident about the 2002 events?
A No.
Q Would that be standard? Would that be the way the university operates when an allegation is made against a current employee or a very famous prior employee, that nothing be put in writing?
A The allegations came across as not that serious. It didn't appear at that time, based on what was reported, to be that serious, that a crime had occurred. We had no indication a crime had occurred.

(Paterno)
(Curley)
(Schultz)
RE: Knowledge of any other Sandusky incidents/1998 incident
Q Other than the incident that Mike McQueary reported to you, do you know in any way, through rumor, direct knowledge or any other fashion, of any other inappropriate sexual
conduct by Jerry Sandusky with young boys?
A I do not know of anything else that Jerry would be involved in of that nature, no. I do not know of it. You did mention -- I think you
said something about a rumor. It may have been
discussed in my presence, something else about
somebody. I don't know. I don't remember, and I could not honestly say I heard a rumor.
Q At the time of the incident in 2002, were you aware of any other incidents involving
alleged sexually inappropriate misconduct by Mr. Sandusky anywhere, on university property or otherwise?
A No, ma'am.
Q Since this has come to light, have you become aware of other allegations of inappropriate sexual conduct by Jerry Sandusky on university property or elsewhere?
A Other than what was mentioned this morning.
Q Specifically a 1998 report, did you know anything about that in 2002?
A No, ma'am.
Q But the 1998 incident was never brought to your attention?
A No, ma'am, not that I recall.
Q Have you ever heard -- anything other than what you heard from Mike McQueary, have you ever heard anything at all regarding inappropriate conduct between Jerry Sandusky and young men either on or off campus?
A No.
Q You knew the university police were involved in the 1998 investigation, right?
A Yes.
Q What did you understand the 1998 incident, in a general way, to allege?
A Again, I thought that it had some basis of inappropriate behavior, but without any specifics at all.

Schultz was asked many other questions regarding the 1998 incident.




(Paterno)
(Curley)
(Schultz)
RE: Law Enforcement
NONE
Q Was there a specific conversation about whether or not to go to law enforcement authorities about this?
A At the time I don't recall that because, again, I didn't feel -- at least I didn't feel personally that any criminal activity had occurred. So my thought was that because a young person was there, that I needed to take it to the Second Mile.
Many questions were asked whether or not PSU involved law enforcement in 2002(2001) and Schultz had indicated each time that he thought Child & Youth Services (CYS) was involved in 2001.






ANALYSIS

NOTES: From the chart you can see that the OAG only asked Schultz if he was in ‘possession of any notes memorializing the 2002 incident.’ Schultz said that he was not currently in possession of any notes, that he may have taken some, and if he did they were probably destroyed at this point. Later, they asked him again, ‘Are you aware of any memorandums or any written documents, other than your own notes, that existed either at the time of this incident or after this incident about the 2002 events?’ Schultz said, ‘No.’ They then asked, ‘Would this be standard, not to put something in writing?’

As you can see, only Schultz was asked about notes and he was asked several times. Paterno nor Curley were asked if they had taken notes or memorialized the incident.  That would suggest they had the ‘secret’ file with Schultz’s notes in hand, otherwise they would have asked the other two PSU officials the same standard question about notes.

It is interesting to point out in the second instance, they phrased it, ‘other than your own notes….’  That seems to confirm they indeed were aware of his notes.  Prior to that, Schultz had only stated that he ‘probably’ took notes and ‘if he did’ they were most likely destroyed.  Also, what ‘other documents’ were they asking about?  It must have been the emails that were also in the file in which they appeared to have had.

KNOWLEDGE OF OTHER/1998 INCIDENT: Each man was asked if he was aware of any other incident (besides 2001) that would have involved inappropriate sexual misconduct of Sandusky with young boys. Remember, the OAG had the 1998 police report detailing the 1998 investigation, but none of the PSU men are mentioned in the report so the OAG would not know whether these men knew about 1998 or not.  Schultz acknowledged he knew about 1998 but not the specifics.  Paterno said he was not aware but maybe heard a rumor but could not say for sure.  The OAG did not question Paterno any further on that. 

However, when Curley was asked whether he was ‘aware of any other incidents,’ he said, ‘No.’ He was again asked, ‘Since this has come to light, have you become aware of other incidents?’ Curley seemed confused and they further asked, ‘Specifically, a 1998 report. Did you know anything about that?’  Curley again answered, ‘No.’ Again, he was asked, ‘But the 1998 incident was never brought to your attention?’ he said, ‘No.’ And yet again, he was asked, ‘Have you ever heard anything, other than from Mike McQueary, about inappropriate conduct between Sandusky and young men?’ he answered, ‘No.’

The comparison of questions re the 1998 incident between Paterno and Curley is eye-opening.  Paterno was asked once, says he was not aware of anything else, and they moved on.  Curley was grilled over and over five times regarding this prior Sandusky incident.  The only information they supposedly had at the time would not lead them to believe Paterno or Curley were aware of 1998, so why was Curley grilled? 

Schultz’s notes indicate that Schultz reviewed the ‘1998 history’ with Curley on 2-12-01.  This is the only piece of information at the time that would indicate Curley possibly knew of the 1998 incident.  Again, this line of questioning suggests the OAG had Schultz’s notes during the January 12, 2011 hearing.

LAW ENFORCEMENT: From the chart you can see that Paterno was not asked about involvement of any law enforcement regarding the 2001 incident.  Schultz was asked many times and answered each time that he thought CYS/DPW was involved. 

Curley was asked, ‘Was there a specific conversation about whether or not to go to law enforcement authorities about this?’  He said that he ‘did not recall a conversation.’ This may be a standard question to ask, but why wasn’t Paterno asked?   Schultz’s notes/emails indicated that ONLY Schultz and Curley developed a plan to 1) Tell the Chair of the Second Mile, 2) Report to Dept. of Welfare (DPW), 3) Tell Sandusky to avoid bringing children into Lasch Building.  Therefore, if the OAG had these notes, then they knew that Paterno was not necessarily privy to this plan and hence no questions were asked.  The fact that only Curley and Schultz were asked about law enforcement strongly suggests they indeed had Schultz’s notes (i.e. the ‘secret’ file).

PERJURY CHARGES
However, what seems to be even more evidence that the OAG had this file (from Baldwin) in January 2011, came on March 30, 2012.  The Commonwealth (OAG) issued Statements of Perjury which outlined what they believed were perjurious statements by Curley and Schultz from their Grand Jury testimonies.

CURLEY PERJURY CHARGES
From the above chart, regarding the question to Curley re ‘Law Enforcement’, the OAG declared Curley’s answer to be perjurious.



Remember, Schultz’s file was not turned over to the OAG (by Schultz and Belcher) until April 2012, so how could this statement be determined perjurious on March 30, 2012?  

There was absolutely no other corroborating evidence that supported Curley knowing of a ‘specific conversation about going to law enforcement or not.’

The OAG by this time (3-30-12) did have the 1998 and 2001 emails from the IT department.  But, the only email from 2001 (from IT dept.) that mentions the steps taken regarding Sandusky was the following 2-28-01 email:



There are references to ‘the other one’, ‘the two groups’, and ‘the other organization.’  However, without the benefit of Schultz’s notes, these references have no specific meaning and, even so, do not corroborate ‘law enforcement.’

However, what is more telling comes from Ray Blehar’s disclosure of Rodney Erickson’s notes from January 31, 2012 in which then PSU President Erickson discussed getting copies of ‘notes- Curley + Schultz.’ 



Clearly, this January 31, 2012 entry proves Schultz’s notes were known well before they were turned over by Belcher and Schultz in April 2012.  The only other person with knowledge of such notes would have been Baldwin, who most likely, as proven now, gave a copy to the OAG and (likely) Freeh.

This perjury charge re Law Enforcement is a strong indication that Law Enforcement was actually part of the discussion/evidence between Curley and Schultz that we have not seen.  Was this charge based on another email or note from Curley or Schultz that has been suppressed?  If Baldwin did remove the file in January 2011, she could have excluded pieces of the file that she put back in the drawer -- but gave the full file of evidence to OAG/Freeh.

And, if such an email or note exists, it means that going to law enforcement was actually discussed since they charged Curley with perjury on this question. If so, it is likely the email/note mentioned that Schultz or Curley reported the incident to Tom Harmon, Director of University Police, i.e. law enforcement. 

Remember, Harmon had emailed Schultz the day after Paterno reported the 2001 incident to Curley and Schultz (to alert Schultz about the 1998 police report).




According to the testimony of Harmon, Schultz did NOT contact him about the 1998 file. However, Harmon also testified that Schultz never told him about the 2001 incident, so what caused Harmon to email Schultz about the 1998 police report?  And what is the truth?

According to another blog post from Blehar, he identified an end note from the Freeh Report of a still unknown, unseen communique between Schultz and Harmon:

End Note 304:  Schultz confidential file note (5-1-12).  This is a reference from the report: “On February 12, 2001, Schultz also asked Penn State Police Chief Tom Harmon if a police file still existed for the 1998 event.” 
If this request was simply for the 1998 file, why wasn't it included in the Freeh Report like the email above from Harmon?  What other information did it contain?  Perhaps Schultz did inform Harmon of the 2001 situation before asking about 1998.  That would be entirely logical - and would actually have resulted in a perjury charge for Harmon.

This document may be one of the pieces of information the BOT is trying so hard to protect -- or should I say "conceal?"

SCHULTZ PERJURY CHARGES


Also in that filing of Perjury Particulars on March 30, 2012, were Schultz’s alleged statements of perjury from the OAG.
 In this specific citation, the OAG is alleging that Schultz lied about ‘knowing specifics’ of the 1998 incident.  The only corroborating documents that detailed Schultz’s specific knowledge of the case were in his Sandusky file.  They were his handwritten notes that detailed the 1998 incident.  No other evidence they had at the time would support this perjury charge except for his notes-that supposedly weren’t turned over until April 2012.

(Again, the information from Schultz’s file does not necessarily support perjury, these men testified 10 years after the incident without any review or discussion to refresh their memory.)

REVIEW OF REPRESENTATION

Remember, Baldwin is the same lawyer who represented Schultz, Curley, and Spanier at their Grand Jury hearings.  She now claims she was only representing PSU and not the individual PSU officials.  However, according to a legal expert, her claims of only representing PSU don’t actually matter.

Jason Pelt, defense attorney and former Marine JAG prosecutor, told me, “When it comes to representation, it does not matter who Baldwin believed she was representing, it only matters if the individuals believed she was representing them.”

It is clear that Curley, Schultz and Spanier believed she was representing them.  We know this because only their attorney can be present during testimony and she was indeed present. In addition, each man verbally identified ‘Cynthia Baldwin’ to the court when the judge asked, ‘Are you represented by counsel?’
 
Although she now contends she was only representing PSU and not the individuals during their respective hearings, why wasn’t she representing PSU during Paterno’s testimony, when Paterno had his own legal counsel?  Simple answer: she was not allowed to be present with Paterno because only the witness’s attorney is allowed to be present during questioning.

Why the back peddling from Baldwin?  Perhaps because of her blatant conflict of interest and possible malpractice before the court regarding Schultz’s file.

Regardless of her legal spin, she was indeed representing Schultz, Curley, and Spanier, as evidenced by her actions with them before the hearings, her court appearance with them during the hearings, and their verbal identification of her as their attorney which she did not object to or correct. 

MOST PROBABLE SCENARIO

After vetting the statements of Baldwin and Schultz, it appears the most likely scenario is that Schultz did indeed tell Baldwin of a possible Sandusky file and that she retrieved it and gave a copy to the OAG.

So what does this mean?

First of all, if true, it means that Baldwin not only had an obvious conflict of interest regarding client-attorney privilege, but also has a liability issue.  Pelt explained that, “Baldwin would be liable if Schultz’s position was made worse or if the information was used against him toward his detriment.”  He said, if true, she is facing ethical issues and possible disbarment from the Pennsylvania Bar Association.

Secondly, if true, it means Baldwin committed perjury at her Grand Jury hearing on October 26, 2012.
Finally, if the OAG knew she was lying and allowed the perjured testimony, then more ethical issues come into question and produce major legal problems for the OAG and Baldwin.  Pelt added, “If the OAG used Baldwin to get information on her clients to be used against them, then that evidence could be suppressed at trial.”

CHARGES REVISITED

Remember, the initial charges filed in November 2011 were Perjury and Failure to Report, wherein:
1)  Perjury was based only on Curley and Schultz's testimony that they were not told of sexual abuse by McQueary; and,
2)  Failure to Report would have had to occur on or after November 5, 2001 to keep within the 10 year statute of limitations.

Based on the above analysis, it is likely that the initial perjury charges were not based on McQueary’s ‘credibility’ but rather on the notes and emails found in Schultz’s file.

Regarding the Failure to Report, if the OAG had Schultz’s Sandusky file in January 2011 then they clearly knew the McQueary incident happened in February 2001 and NOT March 2002. That would mean that the 10 year statute of limitations for Failure to Report (FTR) had expired in February 2011. By November 2011, this charge was no longer enforceable. 

It appears the OAG used the date of March 2002 as a ruse in order to keep FTR within the 10 year time frame in order to charge the men in November 2011, along with Sandusky.  After all, charging the PSU officials the same day as charging Sandusky helped give birth to the false narrative that Penn State was to blame for Sandusky’s crimes.

In essence, the ONLY way for the OAG to charge Curley and Schultz with perjury would have been with the benefit of Schultz’s notes and the ONLY way to charge them with Failure to Report in 2011 was to PRETEND they did not have his notes and then choose the 2002 date (over the correct 2001 date) provided by Mike McQueary.

PSU/BALDWIN/OAG/FREEH WIN, FOR NOW….

Imagine if Baldwin did indeed hand over Schultz’s Sandusky file to the OAG in January 2011. Imagine all the legal malpractice taking place at the hands of those entrusted to uphold the law. How could they possibly get away with it and cover it up? Answer: Hire a man to ‘discover the secret file,’ write a scathing report of a cover up, and hope that one or both men plead guilty or that one man flips on the other.  Under a guilty plea or flip scenario, NO EVIDENCE is really needed because the case can be decided on testimony alone. 

But what would cause such a scenario to occur?

Welcome to the Freeh Report.

The Freeh Report has been the gift that keeps on giving and appears to have protected everyone with an agenda.
1) The PSU Board of Trustees (BOT) paid Louis Freeh to write an ‘independent investigative report’ that justified their firing of Joe Paterno and Graham Spanier. (PSU scores)
2) Freeh received $8 million for writing this ‘report’ that was spoon fed to him from the OAG. (Freeh scores)
3) The PSU BOT in conjunction with the OAG, I believe, used Freeh to ‘discover’ Schultz’s ‘secret file’ to protect the OAG, Cynthia Baldwin, and Penn State from legal malpractice. (PSU, Baldwin, & OAG score)
4) Freeh returns favor to OAG and convicts Curley, Schultz, and Spanier in the court of public opinion. (OAG scores)

Yes, these entities may be winning for now, but it is only a matter of time before the celebration ends. And that time is drawing near.

BUT, THE FINAL VICTORY WILL BE OURS

Just recently, on July 20, 2015, the judge ordered the release of the Freeh documents.  Finally, the light will be shed on the truth.  This is a great victory for the Paternos, the alumni trustees, and the entire Penn State community.

I truly believe the Schultz file is one major reason why PSU and Freeh have been relentless in fighting the Paternos and the alumni trustees for the release of the Freeh documents.  I believe the truth about Schultz’s file will reveal the malpractice and total lack of integrity of Cynthia Baldwin, the OAG, Freeh, and Penn State’s own Board of Trustees─ or the, Not So Fab Four.

It’s hard to agree with anything Freeh has ever said, but in this case I think his own words will soon come back to haunt him and his Not So Fab Four cohorts:  

“It was an active case of trying to conceal evidence, you know. You don’t do that. It’s a dumb thing to do.”

Thursday, July 23

Mark Emmert: Unfit to Lead

Evidence revealing the level of Mark Emmert's corruption and lack of integrity in the Penn State case are grounds for his removal.

By

Ray Blehar


Dr. Ed Ray Provided The Initial Tip 
That Someone (Everyone) Was Lying
Today is the third anniversary of Penn State University's (PSU) and the NCAA's unprecedented agreement to punish the PSU football program and athletic department without cause. 

The evidence in the case proves that conduct of NCAA President Mark Emmert was so unethical, dishonest, and, at times delusional, that he is not fit to be the President of the NCAA.

At the time of the signing of the NCAA Consent Decree, the only evidence that something was amiss was Dr. Ed Ray's interview that contradicted that the death penalty was threatened.

Today we know a lot more than we did then, including that both parties knew there was no evidence to justify punishing PSU athletics and that Mark Emmert decided unilaterally to interject the NCAA in the matter. 

Also, contrary to popular belief -- and Senator Corman's summary -- the agreement (formally titled "BINDING CONSENT DECREE IMPOSED BY THE NATIONAL COLLEGIATE ATHLETIC ASSOCIATION AND ACCEPTED BY PENN STATE UNIVERSITY) was the result of an eight-month collaboration between the top leaders of the two organizations.   Those leaders used the opportunity provided by the Sandusky case as a means to rehabilitate their public images.

Emmert actions reflected his desire to change the NCAA's reputation as a weak enforcer who harshly penalized lesser NCAA members, while giving wrist slaps to big time athletics programs.  It was also true that the top leadership of PSU was under fire for its botching of the Sandusky matter and its rash decisions to remove former PSU President Graham Spanier and legendary coach, Joe Paterno.  They too desired to boost their reputations.


Their hyperbolic public relations strategy was to accuse former PSU officials of a lack of integrity and ethics, while putting themselves on the moral high ground and portraying themselves as reformers of PSU's governance and culture, respectively.

The irony in this case is overwhelming, as it was the top leaders of the NCAA and PSU - not Spanier, Paterno, Tim Curley, and Gary Schultz -- that displayed a lack of integrity and ethics. 



SUMMARY OF EVIDENCE

The evidence in this case reveals that NCAA President Mark Emmert and/or members of his top leadership team:

1.  Knew, on November 9, 2011, that the Charter and By-Laws did not authorize the NCAA's intervention in the Sandusky matter;

2.  Knew, on or about November 10, 2011, that they had to work around the enforcement process to interject the NCAA into the Sandusky matter


3.  Knew, in December 2011, that the NCAA's role in the Freeh investigation went beyond monitoring.

4.  Knew, by January 31, 2012, that the Freeh investigation found no major violations.

5.  Knew, by July 15, 2012, that the Freeh Report did not contain evidence of NCAA violations;

6.  Sidestepped the NCAA's responsibility to determine if a lack of institutional control (LOIC) existed at PSU;

7.  Began negotiating, on or about July 16, 2012, with Erickson to determine the specific sanctions on the PSU athletics department.

8.  Finalized, on or about July 21, 2012, the sanctions against PSU athletics.

9.  Lied, on July 23, 2012, to Graham Spanier about not naming him in the Consent Decree and about assigning individual culpability.

DISCUSSION

1. The NCAA Had No Role In Sandusky Matter 

"There is nothing for us to do. I think it is a dead issue."

-- Tom Hosty, NCAA Enforcement Official

When Mark Emmert identified a number of rules in its November 17th letter to Penn State, he did so knowing that none of them applied to the Sandusky matter.  In addition, Emmert conveniently omitted the articles in The NCAA By-Laws and Charter that clearly showed it had no jurisdiction in the case.  To wit:

1.3.1 Basic Purpose. [*] The competitive athletics programs of member institutions are designed to be a vital part of the educational system. A basic purpose of this Association is to maintain intercollegiate athletics as an integral part of the educational program and the athlete as an integral part of the student body and, by so doing, retain a clear line of demarcation between intercollegiate athletics and professional sports.

1.3.2 Obligations of Member Institutions. [*] Legislation governing the conduct of intercollegiate athletics programs of member institutions shall apply to basic athletics issues such as admissions, financial aid, eligibility and recruiting. Member institutions shall be obligated to apply and enforce this legislation, and the enforcement procedures of the Association shall be applied to an institution when it fails to fulfill this obligation.

19.01.1 Mission of NCAA Enforcement Program.  It shall be the mission of the NCAA enforcement program to eliminate violations of NCAA rules and impose appropriate penalties should violations occur. The program is committed to fairness of procedures and the timely and equitable resolution of infractions cases. The achievement of these objectives is essential to the conduct of a viable and effective enforcement program. Further, an important consideration in imposing penalties is to provide fairness to uninvolved student-athletes, coaches, administrators, competitors and other institutions." 

Article 32.6.3 Statute of Limitations imposes a four-year limit or statute of limitations on rules violations that can be adjudicated by the NCAA's enforcement arm.  

Ironically, in 2010, Mark Emmert proclaimed PSU football as exemplifying everything the NCAA stands for and called Paterno "the definitive role model of what it means to be a college coach."  Sandusky's crimes that surfaced one year later had no bearing on PSU's stellar record of combining athletics and academics, did not constitute NCAA violations, and occurred outside the statute of limitations for an enforcement action. 

Emmert's and the NCAA's dishonesty is confirmed by the email below, showing that they knew as early as November 9, 2011  that matters related to the Sandusky grand jury report were not applicable and outside of the statute of limitations. (Corman/Roe Lach, #1)





After the repeal of a number of sanctions in September 2014,  Emmert backpedaled on the process used to penalize PSU, sheepishly calling it an "experiment." 


2.  Emmert Knew The Sandusky Case Was Not An Enforcement Matter

"..use it to look at the athletic culture, but Mark wants more."

-- David Berst, NCAA Policy Expert

In a November 10th ESPN interview about the Sandusky scandal, Emmert stated  "that I would never say athletics was the cause of it." He further stated that "the NCAA would let the criminal justice process move forward and see what the facts say happened...then we'll do an inquiry to see what action should be determined." (Corman/Emmert #2)

The day after the interview, former PSU Vice President for Student Affairs, Vicky Triponey emailed Mark Emmert, sending him a "THANK YOU" for his comments on "the PSU situation." She also offered her assistance with "the Penn State mess" and stated she "knew too well what people were capable of doing when immersed in a toxic culture."  

That same day, former NCAA Vice President for Enforcement, David Price, emailed Julie Roe Lach to advise her to brainstorm ways to justify an enforcement action against Penn State that did not involve violations of NCAA rules. (Corman/Roe #2 shown below)




On November 15, 2011, Emmert invited the NCAA senior leadership team to a one hour meeting on November 16th to discuss "Penn State." (Corman/Berst #2)  


The following day, David Berst, an enforcement and policy expert for the NCAA, emailed a "heads up" to Big Ten Commissioner, Jim Delaney, stating he (Berst) "pushed back and have lost the argument so far" on an NCAA inquiry.  Berst informed Michigan State President Lou Anna Simon that an inquiry could be used "to look at the athletic culture, but Mark wants more." (Corman/Berst #4).


The NCAA's role in the matter was limited, but Emmert "wanted more."
On November 17, 2011, Emmert held a conference call with the Division-I Board of Directors (BoD) at 11:30 AM to discuss Penn State situation. At his deposition  (p. 73), Emmert didn't think he shared his subsequent letter to PSU with the BoD at that time.(Corman/Emmert #5Later that day, or about 3:10 PM, the NCAA sent a so-called "notice of inquiry" to PSU.  

The email memorializing the notice stated  "The plan is to send to the Board tomorrow, after Mark and President Erikson (sic) have spoken."  (Corman/Berst #3)

Despite the expert opinions of David Berst and the enforcement staff that there were no applicable violations in the Sandusky case - and that all of the criminal acts occurred outside the statute of limitations, Mark Emmert unilaterally decided that the NCAA would get involved in the incident.  The evidence also shows that  the Division-I BoD did not approve the letter to PSU and was not provided a copy of it after it was sent.  

Emmert's actions depict an environment in which the President could act unilaterally and was accountable to no one.   

Again, the irony in this case is overwhelming.

3.  Emmert Knew the NCAA's Role Exceeded Monitoring The Freeh Investigation


"The University has undertaken a commendable process by commissioning the independent FSS investigation."

-- Quote from NCAA Consent Decree


On November 21st, the NCAA VP for Legal Affairs, Donald Remy, arranged a November 23rd teleconference for Emmert, VP for Enforcement Julie Roe Lach, and newly selected PSU President Rodney Erickson and other PSU officials to discuss the Sandusky matter (Corman/Erickson #1).  Emmert recalled that Erickson asked for more time to respond to the four questions because PSU was waiting for the Freeh investigation to determine the facts (Emmert deposition page 92). 

 Erickson confirmed that not long after the receipt of the NCAA's November 17th letter, he was instructed by the Special Investigations Task Force -- led by Kenneth Frazier and Ronald Tomalis -- to stand down on the response to the letter and wait for the Freeh investigation to complete (Erickson deposition, page 19).  

A half-hour conference call for November 29th between Emmert and Tomalis was arranged by the NCAA.  The call included the NCAA's (redacted) "Penn State talking points" which were compiled by Donald Remy (Corman/Emmert #8).   


Frazier, Freeh, and Tomalis all had
vested interests in the investigation
Emmert had no recollection of what was discussed with Tomalis at that meeting, but just two days later, on December 1st, the NCAA set up a meeting at the Nittany Lion Inn and invited representatives from Freeh, Sporkin, and Sullivan (FSS), the Big Ten, and the NCAA (Corman/Roe Lach #6).  The Big Ten's Jon Barrett was approved to participate in the investigation by Kenneth Frazier on December 4th.  According to Barrett, Frazier wanted to give the Big Ten and NCAA equal treatment  (Corman/McNeill #3).

On December 16th, then PSU General Counsel Cynthia Baldwin provided a draft letter to the NCAA asking for an extension of time and suggesting that the Freeh Report be used as PSU's response (Corman/Berst #4).  The NCAA and FSS had gotten cozy enough that Remy and McNeill collaborated on suggestions for Baldwin's draft (Corman/McNeill #4)

During late December, the NCAA provided FSS with a list of proposed questions/avenues of investigation. (Corman/McNeill #7)  and computer search terms (Corman/McNeill #9). 

On January 6th, 2012, the NCAA prepared materials and conducted a briefing highlighting NCAA rules and examples of lack of institutional controls to FSS (Corman/McNeill #10).

Even though the NCAA attempted to influence the Freeh investigation, their efforts were unsuccessful simply because they didn't understand that Louis Freeh doesn't work for free.  Had the NCAA paid Freeh to find NCAA violations, he would have found them -- or fabricated them.


4.  The NCAA Knew the Investigation Found No Major Violations

"Curley....fastidious on rules violations e.g. giving donations...
But NCAA waiting for Freeh Report"

-- Passage, dated January 31, 2012, from Rodney Erickson's notebook

The end notes of the Freeh Report indicate that FSS investigators completed their investigation of the PSU football program and the athletic department by the end of January 2012.  

According to the notes of former President Rodney Erickson, on or about January 31st, 2012, PSU informed the NCAA that the FSS investigation had found only minor violations of NCAA rules.  

Specifically, PSU informed the NCAA that PSU Athletic Director (AD) Timothy Curley and another AD official were "fastidious about rules violations."   The notes also indicate that despite being informed of PSU's compliance with rules, the NCAA was "waiting for Freeh Report."


The NCAA was told PSU athletics was "fastidious on rules violations," but remained confident that the Freeh investigation would find reasons to punish PSU athletics.
I would be remiss not to mention the lack of integrity of former President Rodney Erickson, who, despite this evidence, advised the PSU lawyers to move forward with a settlement with the NCAA because "they hold all the cards.  We hold none."


5.  Emmert Knew The Freeh Report Did Not Justify A Finding of a LOIC

"I don't believe Judge Freeh will take any position other than what is noted in the report."

-- Omar McNeill, responding to NCAA's request for a statement on LOIC

On July 12, 2012, Mark Emmert (Corman/Emmert # 16) requested that James Isch, Donald Remy, Kevin Lennon, Julie Roe (Lach) and Crissy Schluep begin an immediate review of the Freeh Report.  

By July 14th, NCAA officials understood the Freeh Report lacked the evidence to legitimately punish Penn State Athletics.  In an email (Corman/Roe #17), Julie Roe Lach wrote: "if we make this an enforcement issue, we...will lose the war when the COI has to rule."  In the same email, Roe referred to NCAA's enforcement action as a "bluff" and stated that Mark (Emmert) agreed with her assessment.





















Earlier that day, Kevin Lennon wrote to Roe Lach about the NCAA's "idea to bring Judge Freeh in" expressing concerns that it would raise questions regarding why the matter was not given to its enforcement staff.  As noted earlier, Emmert and others knew it would be impossible to carry out punishments against PSU in an enforcement action.






















The deposition of Omar McNeil stated (pages 116-117) that on July 17, 2012, Donald Remy referred a question from Mark Emmert asking "why we did not have any specific mention of institutional or lack of institutional control in the report."  On page 120, McNeil stated that Remy also asked if Judge Freeh would have a view on whether there was a lack of institutional control if asked.  McNeil answered, "I don't believe that Judge Freeh will take any position other than what is noted in the report."

In summary, the NCAA knew the Freeh Report was devoid of specific information that could be used in an enforcement action and attempted to reach out to FSS to get them to make an additional statement regarding a lack of institutional control.  


6.  Emmert Sidestepped the NCAA's responsibility to determine if a LOIC existed at PSU


Emmert and the NCAA Weaseled Out of
the Responsibility to Determine a LOIC
"Penn State determined that yes, there were violations of the NCAA By-Laws."  
"We didn't have to."

-- Donald Remy, NCAA Legal Counsel

After being rebuffed by FSS, former PSU President Rodney Erickson stepped up to the plate and offered his unqualified opinion that the Freeh Report constituted a LOIC.   

Emmert's decision to accept Erickson's opinion on the matter was clearly an unethical act and a dodge of the NCAA's responsibilities in the matter.   

The NCAA Division I manual, Articles 32.7.1.1 and 32.7.1.2 state an institution can conduct its own investigation, however the investigation must be reviewed by Committee on Infractions (COI).  The COI's review must determine that "a thorough investigation of possible violations of NCAA legislation has been conducted."  After that has been determined, the enforcement staff and the institution "shall submit a written report" of the "proposed findings of facts," a summary of the information on which the findings are based;" and "a stipulation that the "findings are violations of NCAA legislation."  After that has been completed, the institution and the enforcement staff propose appropriate penalties based on the violations

NCAA counsel Donald Remy doubled down on Emmert's unethical and irresponsible maneuver, stating that Penn State determined that By-Law violations occurred based on its evaluation of the Freeh Report.

Remy at 256:  "I think that was Penn State's determination after the reading the Freeh Report. You read the Freeh Report, it comes back to the questions. Everything goes back to the questions. Were there violations of NCAA bylaws? Penn State determined that yes, there were violations of NCAA bylaws."

 "Q Did NCAA, as part of the overall process in which you engaged in, make a determination 
 that there was a lack of institutional control at Penn State such that these penalties were justified? 

Remy at 257: "Penn State did. I mean, that's what they said to us and so that's the basis upon which we moved forward. We didn't have to." 

The evidence proves the NCAA knew there were no violations found in the investigation or cited in the Freeh Report.   Emmert and the NCAA leadership's acceptance of Erickson's "guilty plea" was inexcusable.


7.  Emmert Negotiated With Erickson To Determine Penalties

Gene Marsh: Strictly "window dressing"
"It was absolutely not a negotiation. And I was finally glad to see that David Berst in his deposition, boom, say it was not a negotiation."

-- Gene Marsh, Attorney for PSU

Senator Corman's summary of the case was correct in that there were two parallel conversations occurring in the case.  The "real" discussion of penalties took place between Emmert and Erickson.  Conversely, Gene Marsh was brought in by PSU to serve as "window dressing" for the fake negotiations between him, Donald Remy, and David Berst.   

Evidence indicates that Marsh was likely selected because he was incompetent and easily intimidated.  His track record showed he had blown his previous two gigs representing the Ohio State and Alabama football programs, with each case resulting in probation, losses of scholarships, and vacating of wins.  In other words, he was Erickson's and Emmert's ideal man for the job.

Marsh was used by the NCAA and PSU to provide disinformation, such as constant reminders of the position of the NCAA Executive Committee on the death penalty, to PSU attorneys Frank Guadagnino and Stephen Dunham.  Erickson then pretended to consult them for advice on "negotiating" with the NCAA.

In spite of the charade, the depositions Rodney Erickson, current BOT Chairman Keith Masser and Gene Marsh all confirm that negotiations began on Monday, July 16th and a list of proposed penalties was crafted by July 17th.

Rodney Erickson's Deposition 
By Erickson's own admission he and Emmert discussed potential NCAA sanctions  "On that Friday" (July 13th) as he was leaving the Scranton campus (Erickson deposition, page 30). 

Q. Shortly thereafter, am I right, is the time you had your first contact with President Emmert about potential NCAA sanctions?
A. On that Friday, yes.


Erickson went on to state that he did not talk to Emmert over the weekend and that the first substantive conversation took place with Emmert on Monday, July 16th and that negotiations started the same day (p. 229).  The post-season bowl ban was part of the negotiations (p. 227):




Q. Am I accurate that Penn State actually negotiated a reduction in the proposal length of the post-season ban?
A. Five to four years.

Erickson's recollection of Monday's discussion was that Emmert "said this  is not a normal situation where we go through the -- and he also said that the Freeh Group has already done an investigation that's more thorough...And that was one of the reasons...we may be able to move things in this direction of some sort of a package of sanctions (p. 43). 

Keith Masser's Deposition
The NCAA wasn't on my radar, but Rod Erickson  informed Karen and I that there were -- that the NCAA was interested in providing some kind of sanctions to Penn State. And that's -- and that --and then we were having periodic updates through that week. After that initial call with Rod Erickson, we had a short, maybe a day or so after that, an Executive Committee briefing by Rod Erickson. And then we were briefed periodically during that week prior to the consent decree being offered. (Masser Deposition, page 26).

According to the meeting invitation below, the Executive Committee briefing Masser mentioned was held on Tuesday, July 17th (Corman/Guadagnino #3).  That confirms Masser was informed on Monday, July 16th.



Gene Marsh Deposition
Marsh was much more definitive about the days the NCAA Consent Decree and penalties were proposed, stating that the settlement option originated Monday, July 16th and the penalties were laid out on Tuesday the 17th.


"So Monday was Remy and then Tuesday was when Remy and Dave gave me their first list of what -- what penalties that people had in mind." (Marsh Deposition, page 40)


The email below shows the first round of penalties proposed (Corman/Guadagnino #5).  





On Wednesday, July 18th, PSU legal staff member Frank Guadagnino checked with the NCAA regarding PSU initiating the draft of the NCAA Consent Decree (Corman/Guadagnino #6). 

This evidence proves that the sanctions and Consent Decree did not originate as a result of a death penalty threat and were a collaboration/negotiation between PSU and the NCAA.

8.  Sanctions Finalized and Rubber Stamped


"We have to make the best judgment at the time the issue is in front of us, with the information in front of us, and the executive committee, I think, did that well."

-- Mark Emmert


Shortly after midnight on Saturday, July 21st, emails from the NCAA arrived in the mailboxes of Gene Marsh, the PSU legal counsel, and - interestingly enough - a PSU campus "help desk" that was manned by an international student.   

So much for that confidentiality thing.

The negotiations on penalties were complete and the remaining issues were to clean up the language of the eventual consent decree, finalize the media campaign, and -- lastly -- get the approval of the NCAA Executive Committee.

On the afternoon of July 21st, the NCAA Executive Committee met to discuss the Penn State situation.  

According to Ed Ray, who admitted to neither reading the Freeh Report or the Consent Decree before he voted, the vote against the death penalty might have been 19-2 (with Ray and Pastides voting for).  It's a good bet Pastides didn't read the Freeh Report.

The unanimous decision that emanated from that meeting was that Mark Emmert could enter into a consent decree with PSU and noted a list of penalties that could be levied.  The proposal also dishonestly had a provision that the NCAA would take action unilaterally if PSU didn't agree to the sanctions. (Corman/Emmert #23)  




In summary, the Executive Committee simply rubber stamped what had already been negotiated by Emmert and Erickson without knowing they were bluffed.

9.  Lied to Graham Spanier and About Individual Culpability

It is one thing to lie to the public and to think that you won't get caught (e.g., Erickson and the death penalty), but it is quite another to tell a bald-faced lie when you know you'll get caught.

The latter is exactly what Mark Emmert did when former President Graham Spanier requested that the NCAA not name him or other PSU officials based on the evidence in the Freeh Report.

Emmert provided a weaselly answer that he didn't "intend" to single out individuals, all the while knowing that the NCAA Consent Decree language singled out Spanier.  (Corman/Emmert 27 and 28).






























What is truly amazing about Emmert's answer to Spanier, however, is that after the NCAA Consent Decree was issued he continued to insist that individual culpability was not established -- even though it clearly was stated in the language of the document.  

In conclusion, the evidence in this case (and others) shows that Mark Emmert not only lacks integrity and ethics, but appears to be a leader who is completely detached from reality.

He remains unfit to be the President of the NCAA.