A Must Read: Bringing Down A Legend

Excerpts from Brian Gallini's paper 

This Article argues that the Pennsylvania grand jury system and its use of a presentment needlessly and unfairly included Paterno, practically accusing him of a crime. An important job of the grand jury is to investigate crimes, but by naming Paterno in the Sandusky presentment it implicitly said that Paterno committed a crime without having gone through the appropriate steps to establish probable cause that he did commit a crime. Doing so abuses the grand jury system and would not happen in the federal system or in most other states.

Paterno’s downfall began with the investigative grand jury naming Paterno in the presentment targeted toward Sandusky. But Paterno was denied the opportunity to legally respond—there existed no venue for him to file any kind of response or seek to strike portions of the Sandusky presentment. In federal court and many state courts, strict secrecy rules governing grand jury activity would likely have ensured that Paterno would never have had to respond —publically or legally—to a presentment issued by an investigating grand jury that investigated someone else.

Paterno’s downfall illustrates the importance of grand jury secrecy—both during and after its investigation. That secrecy, present in all federal grand jury proceedings, prevents collateral damage—like job loss—to unindicted criminally innocent third parties. The absence of that secrecy in Pennsylvania’s investigative grand jury proceedings took Paterno’s job, tarnished his legacy, and perhaps even shortened his life.
But why would the presentment name Paterno? Let’s be honest: who outside of Pennsylvania had heard of Sandusky before Paterno’s name was mentioned? Perhaps the inclusion of Paterno’s name in the Sandusky investigation explains why an army surrounded Pennsylvania Attorney General Linda Kelly at the news conference announcing the charges against Sandusky. Moreover, it’s not simply naming Paterno in the presentment (drafted by the Commonwealth by the way); it’s also releasing that document to the public—something the Attorney General’s office was not required to do. At a minimum, that office could have redacted Paterno’s name, which it likewise elected not to do.

...at least Sandusky had his day in court. Paterno will not. Paterno is a private third party who was not under investigation and is thus historically not properly included in either the presentment of someone else, or the subject of a separate grand jury report. The Pennsylvania Attorney General’s decision to make the Sandusky presentment public ignores that history and, in doing so, denies to Paterno the opportunity to defend his name, his reputation, or what he did—or did not do. Even assuming that Paterno had not died from lung cancer, there exists no meaningful legal proceeding in Pennsylvania that would allow him to distance himself from the grand jury’s investigation into Sandusky. Even if such a proceeding existed, it’s unlikely the public would forget about his inclusion in Sandusky’s investigation.

Part of the collective problem, of course, stems from the manner in which the Sandusky presentment was written. Emblazoned with Findings of Fact at the top of the page, the media at large took it as precisely as that—some members of the media even went so far as to assume the document constituted an indictment against Sandusky. Thus, the average reader of the media’s subsequent stories about Sandusky, let alone the average lawyer, likely had no idea about the difference between a “presentment” and an “indictment.” And why would they—the Sandusky presentment was not even labeled as such; the document omitted a title page and announced itself immediately with its “findings of fact” label. The public likely has no idea that those findings were not the product of an adversary proceeding.

...the point of this Article remains the same: all of this started with the Sandusky investigative grand jury presentment’s unnecessary naming of Paterno. Doing so was gratuitous, superfluous, and denied to Paterno the opportunity to explain what he did, or did not do, about Sandusky’s criminal behavior. Importantly, we might never have known about Paterno’s involvement, or lack thereof, had Sandusky been the subject of a federal investigation. But, Pennsylvania allows the investigative grand jury to issue a presentment, a document long ago described by a New York appellate court as follows:

"A presentment is a foul blow. It wins the importance of a judicial document, yet it lacks its principal attributes—the right to answer and to appeal. It accuses but furnishes no forum for a denial. No one knows upon what evidence the findings are based. An indictment may be challenged—even defeated. The presentment is immune. It is like the “hit and run” motorist. Before application can be made to suppress it, it is the subject of public gossip. The damage is done. The injury it may unjustly inflict may never be healed."

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Hat tips to Carole Vail for the excerpts and Scott Paterno who alerted us to this article.