Henry Wray: Freeh Report Analysis Excerpts

At the Upon Further Review Event on Sunday, I met a gentleman who was retired from the Government Accountability Office who mentioned he had a friend who analyzed the Freeh Report.  His friend, Henry Wray, e-mailed me his analysis.  I found it to be well done, but since it is twelve pages long, I thought I'd post some of the highlights. A link to the full report is at the bottom of the page.

Mr. Wray is a semi-retired attorney with over 40 years experience who started his career in the late 60's with the Pennsylvania Justice Department as an Assistant Attorney General working on criminal and non-criminal investigations.  He eventually moved to Washington DC and spent most of his career as a government attorney, working with congressional committees on both the House and Senate.  He is well versed in conducting audits and investigations. 

Henry Wray's Analysis Excerpts 

(Report written in August 2012)

The public shock and outrage over Jerry Sandusky’s conduct is wholly justified. It is beyond question that Penn State’s handling of Sandusky incidents involved human and institutional failures that likely contributed to his harming more victims. For this, the University and persons involved deserve much blame. Undoubtedly, there will be further consequences and liability. Legitimate outrage, however, has morphed into a feeding frenzy, fueled by the media and abetted by the Freeh report, that discards any sense of objectivity or fundamental fairness to those accused of misconduct. Most recently, the NCAA invoked the Freeh report as the basis to ignore its own due process procedures and impose unprecedented punishments on Penn State and Joe Paterno personally.

The Washington Post has been an active participant in the feeding frenzy. A July 24 editorial praised the NCAA for punishing Penn State without the due process called for by its rules. The editorial began:

“The NCAA’s punishment of the Penn State football program, announced Monday, broke all the rules. That‘s good.”[1]

The editorial went on to assert that the Freeh report “delivered a devastating account of institutional corruption so entrenched that it held a football program as more precious than vulnerable children.”

Along the same lines, an August 3 Post editorial began:

“Of the many horrifying details unearthed in the Freeh investigation into Penn State’s sexual abuse scandal, among the worst was the deliberate refusal of adults up and down the power gradient to report Jerry Sandusky for the child rapes he committed. On some level, this reflects the deification of Penn State’s football program under Joe Paterno, its late and now-disgraced patron saint who protected his program at the expense of Mr. Sandusky’s victims.”

The demonization of Penn State, its football program, and Paterno began well before the Freeh report—actually starting with the initial Sandusky revelations. Once issued, however, the Freeh report became the centerpiece and catalyst for this effort. The report has been widely accepted as gospel, probably because its conclusions mirror themes many in the media already were promoting and that most were all too willing to embrace: Rather than representing only tragic human and institutional misjudgments, the Sandusky affair was a full-fledged and sensational “scandal” featuring a deliberate cover-up orchestrated by a former idol now exposed as a hypocritical liar and abetted by an insular, football-crazed “culture.”  

In the face of this rush to judgment, most of those accused of wrongdoing are unable to defend themselves— at least at the present time. Others who might push back run the risk of being portrayed as attempting to “defend the indefensible” or lacking sensitivity toward the child victims. The current Penn State leadership seems bent on accepting whatever it must in order to put the matter behind it and shows no interest in further exploring what actually happened, particularly if that might require critically examining a report that the University itself commissioned.          

Nevertheless, any fair-minded individual who actually reads the Freeh report and subjects it to critical analysis should have serious misgivings—to say the least. As detailed hereafter, the report is wholly lacking in evidence to support its key conclusions. Rather, its conclusions are essentially unproven speculation based on inferences drawn from limited and ambiguous sources, which it regards as “more reasonable” than the explanations offered by those directly involved. Even as speculation, however, the report’s theory of what happened is far from “reasonable.”  

Freeh Report’s Methodology and Overall Approach

Before turning to the specifics of the Freeh report, a few overall observations are in order. First, while the report appears to be based on an extensive investigative effort, it actually presents little new information that bears directly on the core issues. The report notes that the investigation consisted of over 430 interviews and analyzed over 3.5 million pieces of electronic data and documents.[1] Of the 430 witnesses interviewed, only one was in a position to have direct knowledge of whether some kind of cover-up occurred. That one person was Spanier, who strenuously denied the report’s accusations.  According to the report, Paterno was willing to be interviewed but died before his interview could be conducted. [2]  Schultz and Curley were (and are) under criminal indictment and, therefore, obviously in no position to submit to interviews. The report states that, at the request of the Pennsylvania Attorney General, Freeh investigators declined to interview two other potentially key witnesses: Michael McQueary, who initially reported the 2001 Sandusky incident, and Thomas Harmon, former Director of Public Safety at Penn State.[3] It does not explain why the Attorney General did not want to have them interviewed. The report downplays its inability or unwillingness to interview these individuals:

“Although the information these individuals could have provided would have been pertinent to the investigation, the findings contained in this report represent a fair, objective and comprehensive analysis of facts.”[4]

Contrary to this assertion, information Curley, Schultz, and McQueary (and perhaps Harmon as well) could provide is obviously crucial to any “fair, objective and comprehensive analysis” of the Sandusky matter. Thus, the absence of their testimony constitutes a major gap in the report. Moreover, it is a gap that could have been avoided. If their purpose was to arrive at a fair, objective, and comprehensive analysis of the facts, why would the Freeh investigators agree not to interview McQueary and Harmon? For that matter, why wouldn’t they wait for the outcome of the upcoming trials of Schultz and Curley, which should produce significant new insights into what actually transpired?  

In addition to the lack of any new witness testimony to support the report’s conclusions, only a handful of the over 3.5 million documents examined are directly relevant. These are mainly emails among Curley, Schultz, Spanier and Harmon, which the report describes as “the most important documents in this investigation.”[5] The emails do bear on the actions of the four former officials and raise questions about who knew what and when. As discussed below, however, they are often vague and ambiguous. As such, they are subject to different interpretations—some of which fail to support or even contradict the inferences the investigators apparently drew from them.   

In sum, the Freeh report’s key conclusions rest on no new testimonial evidence and documentary evidence consisting primarily of ambiguous emails.

The second overall problem with the report is that it is hard to pin down the specific reasoning and analysis that led the Freeh investigators to their conclusions—and, as a result, to hold them accountable for those conclusions. The report begins by summarily rejecting the explanations of the four officials in favor of a set of sweeping conclusions that it says are “more reasonable.” The succeeding chapters contain a lot of information addressing various subjects. The chapters start with a list of “key findings,” which generally summarize the information in that chapter. However, the report contains virtually no explicit analysis or explanation of what specific facts or interpretations of facts it relies on for its conclusions. Instead, the conclusions appear to be based largely on unstated and implicit inferences.   

The third overall problem is that the Freeh report’s conclusions lump the four officials together and treat them collectively as if they were jointly engaged in a common enterprise. This is both unjustified by the facts and grossly unfair since, as the facts presented in the report demonstrate, the four officials had quite different roles and levels of involvement. Curley and Schultz clearly were the central participants in Penn State’s actions regarding both the 1998 and 2001 Sandusky incidents. They are the only ones charged with wrongdoing. Also, they are the subjects of the one major conflict in the evidence developed to date: McQueary’s grand jury testimony on what he told them about the 2001 incident versus their characterization of what he told them. By contrast, neither Spanier nor Paterno was charged with wrongdoing and whatever roles they had were less direct than those of Curley and Schultz. Also, there is no direct conflict in the evidence concerning their roles.

An Alternate Hypothesis

For the above reasons, the theory proposed by the Freeh report is not only far from “reasonable” but not seriously plausible. If one is to speculate about why the former officials did not report Sandusky to the state welfare department but instead tried to deal with him themselves, there is a more “reasonable” hypothesis. This alternate hypothesis is essentially consistent with the statements the four individuals have made and, more importantly, is far more consistent with the actions they took. It is also consistent with a frequent pattern in cases of child sexual predators.[1] This hypothesis is that the four individuals honestly did not understand or appreciate what they were dealing with in Sandusky. According to experts, a child molester typically comes across as someone the community believes has a good character and “would never do such a thing.” The following description by one expert fits Sandusky to a tee:

“[M]any seek responsible positions that place them in close proximity with children. They also tend to adopt a pattern of socially responsible and caring behavior in public. Many have practiced and perfected their ability to charm, to be likable and to radiate a façade of sincerity and truthfulness. This causes parents and others to drop their guard, allowing the sex offender easy and recurring access to children.”[2]

As a result of this, and since it is hard for most people to imagine how any person could sexually abuse a child, normal and honest people of goodwill often are reluctant to believe such an individual is a child molester even in the face of warning signs that seem clear in retrospect.

In sum, the Sandusky tragedy more likely was the result of all too common human and institutional failures that can occur in any setting. It was not the product of a deliberate and malicious cover-up and it had nothing specifically to do with the Penn State football program or its “culture.” Instead, it could have occurred in any number of settings. Indeed, the situation here may bear some similarity to other recent national tragedies involving deranged individuals who gave off warning signals that were recognized only after the fact. Examples include the shooters at Fort Hood, Virginia Tech, Tucson, and possibly the Aurora shooter.      

Again, none of this is meant to excuse the misjudgments of the Penn State officials or downplay their likely (if unintended) consequences. The point is that this hypothesis is considerably more plausible under the facts as now known than the Freeh report’s unsubstantiated and, for this reason, outrageous conclusion that the four officials deliberately engaged in a cover-up in which they elevated the reputation of the football program over any concern for the safety and welfare of children.

 Examples of Freeh Grasping At Straws

The following examples from the Freeh report further illustrate its use of innuendo or grasping at straws to cast Paterno in a suspicious light:

The report notes that for many years, Sandusky’s office in the Lasch Building was the closest to Paterno’s.[3]

The report states that witnesses consistently told investigators Paterno was in control of the football facilities and knew “everything that was going on.”[4]   

The report quotes an unnamed Penn State official who described Curley as Paterno’s “errand boy.”[5]

The report emphasizes several times and includes as one of its “key findings” that “Paterno did not immediately report what McQueary told him, explaining that he did not want to interfere with anyone’s weekend.”[6] This is a misleading characterization of a statement by Paterno that the investigators knew to be incorrect. In his grand jury testimony, Paterno mistakenly recalled that he had not conveyed McQueary’s report to Curley and Schultz until some time during the week following the Saturday on which he met with McQueary. In fact, as the investigators were well aware, Paterno conveyed the report to Curley and Schultz the day after he received it—Sunday of the same weekend.

The report includes as a key finding that janitors who witnessed Sandusky abusing a child in 2000 failed to report the incident “[f]earing that they would be fired for disclosing what they saw . . .”[7] The report quotes from the janitors’ account at length, including the following:

                “Janitor B explained to the Special Investigative Counsel that reporting the incident ‘would be like going against the President of the United States in my eyes.’ ‘I know Paterno has so much power, if he wanted to get rid of someone, I would have been gone.’ He explained ‘football runs this University,’ and said the University would have closed ranks to protect the football program at all costs.”[8]

The report treats these conjectural and wholly self-serving statements as fact. Notably, it fails to contrast this speculation with what actually happened (or did not happen) when McQueary reported the 2001 incident to Paterno. There is no indication that Paterno (or anyone else) reacted negatively toward McQueary or retaliated against him in any way. To the contrary, Paterno said he told McQueary “he did what he had to do.”[9] McQueary, a graduate assistant in 2001, not only kept his job but was later promoted to a permanent assistant coaching position.[10]          

            

A final example of the report’s grasping at straws relates to the Clery Act, a federal law that requires universities to report certain crimes (including sex offenses) for statistical purposes as well as potential warnings to students. Chapter 8 of the report notes that Clery Act reporting responsibilities apply to “campus security authorities” (CSAs), which the U.S. Department of Education regards as including a director of athletics and a team coach. The report treats Paterno as well as McQueary[11] and Curley as CSAs and criticizes them for failing to meet their Clery Act reporting obligations with respect to the 2001 Sandusky incident.[12]

There are two problems with this as applied to Paterno. First, as the report itself demonstrates, it is highly unlikely that Paterno was aware of any obligations the Clery Act might impose on him. In this regard, the report criticizes Penn State’s implementation of the law and states:

“Like the rest of the University, the football program staff had not been trained in their Clery Act responsibilities and most had never heard of the Clery Act.”[13]

Second and more significant, it appears that by reporting what McQueary told him to Curley and Schultz Paterno actually did comply with the intent and substance of the Clery Act. The Education Department guidance, referenced in the report, states:

                “Under Clery, a crime is ‘reported’ when it is brought to the attention of a campus security authority [CSA] or local law enforcement personnel by a victim, witness, other third party or even the offender.” [14]

As athletic director, Curley was a CSA. The report acknowledges that Schultz was ultimately in charge of the University police department, but asserts that he was not technically a law enforcement officer or a person designated to receive Clery reports.[15] In other words, while reporting to Schultz was insufficient for Clery Act purposes, Paterno could have complied by reporting to one of Schultz’s underlings.  

Go to the full report

---

[1] This statement is remarkable in itself. Does the Post generally oppose due process for those accused of wrongdoing?

Freeh Report Methodology Footnotes

---

[1] Page 9.

[2] Page 53.

[3] Page 12.

[4] Id.

[5] Page 11.

Alternative Hypothesis Footnotes

---

[1] The descriptions here are taken from an article by the Leadership Council on Child Abuse & Interpersonal Violence titled Eight Common Myths About Child Sexual Abuse, http://www.leadershipcouncil.org/1/res/csa_myths.html.

[2] Id. This quote from the article refers to the work of Dr. Anna Salter, Ph.D., described as one of the foremost experts on sex offenders.

[3] Page 41.

[4] Page 51.

[5] Page 75.

[6] Pages 23, 62, and 68.

[7] Page 62.

[8] Page 65.

[9] Page 67.

[10] The investigators found no information to suggest that McQueary’s promotion was related to his reporting of the 2001 incident. See footnote y, page 67.

[11] It is unclear why the report includes McQueary since he was only a graduate assistant rather than a football coach at the time.

[12] Pages 110, 118.

[13] Page 17.

[14] http://www2.ed.gov/admins/lead/safety/handbook.pdf at page 73.

[15] Page 118. 

omething unique about the Penn State situation?