PSU's Legal Dilemma in the Victim 6 Case

PSU's Board of Trustees finds itself between a rock and a hard place in its defense of Victim 6's lawsuit

By
Ray Blehar

When I first heard that Victim 6 was suing Penn State, I believed it was a lost cause.  Victim 6's (or more accurately, his mother's) claims of sexual abuse in 1998 were investigated by the Department of Public Welfare (DPW) and Centre County Children and Youth Services (CYS) with no finding of sexual abuse.  Moreover, the Sandusky trial found that the defendant was not guilty of indecent assault in the Victim 6 case, but was found guilty of lesser grooming type crimes.

The recent ruling by Judge Anita Brody was a bit of a head scratcher as well.   The judge ruled the trial should proceed, despite PSU's argument that it should wait until the trials of Curley, Schultz, and Spanier were concluded (to determine if the men were guilty of child endangerment and other crimes).   But as we've learned in the Sandusky case, the Pennsylvania judicial system works in mysterious ways.  A complex child sex abuse case speeds through the system, while a case of a summary offense and perjury is continuously put on hold.

Despite my disagreement with the judge's ruling in this case, the lawsuit by Howard Janet is a brilliant legal  move.

The PSU BOT has already given responsibility to the Subcommittee on Legal to provide settlements to Sandusky's victims.   In that resolution, PSU admitted they were "liable for injuries suffered by such persons relating to the actions of Gerald Sandusky."

Rather than settle for the chump change that PSU is willing to pay all comers with a halfway legitimate complaint, Howard Janet is going for the brass ring -- and he can demand the moon and get it.  Why?  Just take a look at his witness list....

First witness for the plaintiff: Kenneth Frazier

Kenneth Frazier, at the last BOT meeting in Hershey, stated that PSU was responsible for the crimes that occurred on the PSU campus.  As for 1998, Frazier stated:  "“The fact of the matter is, those documents say what they say, and no amount of hand-waving will ever change what those documents say.”

In effect, Frazier's support of the Freeh Report's findings that Paterno, Spanier, Curley, and Schultz should have known about Sandusky's behavior in 1998 and acted more earnestly strongly supports the case of Victim 6.   Frazier also pointed to the handwritten note of Gary Schultz as more evidence that PSU knew about the incident, as he emphasized that the note said "had to be genital contact."

Second witness for the plaintiff: Louis Freeh

Louis Freeh's team authored the report that stated PSU officials should have known about Sandusky's behavior in 1998 and because of their knowledge, should have changed Sandusky's retirement package and banned Sandusky from the facilities.  Freeh's team made the "independent discovery" of the e-mail evidence that demonstrated that PSU officials were fully aware of the 1998 investigation and concealed the information from the PSU BOT.  Freeh also noted that the PSU BOT did not execute proper oversight of senior officials and maintain an environment of accountability at PSU.

Third witness for the plaintiff:  Keith Eckel

Keith Eckel's testimony will be short and to the point.  He'll be asked to stand by his statement:  "The decision of the trustees was not based on the legality. It was based on what we believed was right for the university at that moment and moving forward."   As his statement applied to the firing of coach Paterno, shouldn't it also hold true for compensating Victim 6?

Penn State's Defense Dilemma

Penn State hoped to kick the can down the road - into 2014 - and the conclusion of the Spanier, Curley, and Schultz trials to avoid having to make a defense that would run counter to its current position of standing behind the Freeh Report that "reasonably concluded" that PSU was responsible for letting Sandusky abuse children for over a decade.   

Moreover, PSU would likely (grudgingly) point out the DPW and CYS had cleared Sandusky in 1998 and that the University had no reason to believe that Sandusky was abusing children.

The University likely would point out that its own police department investigated the case and found there was nothing there.  And, it would point out that the Centre County District Attorney also decided there was no abuse in the case.

PSU does not want to have to defend itself in this case - no way, no how.

Go for it, Howard.  

We'll get the popcorn ready.