A Primer for Wednesday's Settlement Discussion (Part 1): The Consent Decree

The PSU Board of Trustees has an opportunity to correct the record on Wednesday morning and the facts are in its favor to JUST SAY NO to anything less than complete obliteration of the Consent Decree and return of all monies.

By

Ray Blehar

April 9, 2014, the Pennsylvania Commonwealth Court of Appeals questioned the validity of the NCAA Consent Decree imposed on Penn State in July 2012.  

While Governor Tom Corbett, Senators Corman and Dent, and the NCAA seek to settle the lawsuit over keeping the fines levied by the NCAA against PSU within the state of Pennsylvania, that is putting the cart before the horse.   

The $60 million in fines were unwarranted because neither the NCAA nor Louis Freeh provided any legitimate evidence that Penn State University enabled the crimes of Jerry Sandusky.  The findings from the Freeh Report referenced in the NCAA Consent Decree simply do not hold water.  My analysis of the Freeh Report findings related to the NCAA Sanctions revealed only 12% were supported by evidence or met the standard of a finding.  Only one finding (Clery Act noncompliance) among the 12% made it into the Consent Decree.

Similar analyses conducted by former U.S. Attorney General Richard Thornburg, Dr. Fred Berlin, former FBI-profiler James Clemente, and Wick Sollers found the Freeh Report to be fatally flawed, incomplete, and viewed through the wrong "lens."

The following provides a summary analysis of the "findings" in the NCAA Consent Decree.

Consent Decree Key Finding One - Analysis  

Not Supported:  It is the role of the Pennsylvania Department of Public Welfare - not Penn State University administrators or its football coach -  to protect children from abuse. The DPW is paid with our tax dollars to perform this duty and have a staff of trained professionals who must act when the opportunity arises to stop the abuse of children.   

DPW: A history of failures

Unfortunately, the DPW's record on child protection - once they are notified of an abuse case - is rather abysmal.  According to a March 2009 evaluation of the DPW by the U.S. Department of Health and Human Services, in 42.8% of cases were DPW was called to intervene in abuse cases, the children continued to suffer abuse.  This was again demonstrated just a week ago in the death of nine year-old Jarrod Tutko, Jr.  The DPW (Dauphin County Children and Youth Services) had visited the Tutko home in December 2013 and determined that no abuse had occurred.  Less than nine months later, young Jarrod was found dead, and his body and bedroom were covered in his own feces.

1998 Sandusky Incident

The evidence in the Sandusky case also supports these statistics.  In 1998, PSU officials contacted the DPW to conduct an investigation into an incident where Sandusky had given naked bear hugs to two children in a campus shower.   Additional evidence contained within the 1998 PSU police report and from the file notes of Gary Schultz revealed over a dozen signs of possible sexual abuse were uncovered by UPP Detective Ronald Schreffler, DPW investigator Jerry Lauro and Centre County Children and Youth Services agent, John Miller.  Lauro and Miller determined no abuse had occurred and concluded the case was "unfounded."  Schreffler concluded otherwise, but stated the District Attorney could not make the case with "the state saying there wasn't any abuse."

The child abuse investigation is separately adjudicated from the criminal investigation, thus the decision to allow Sandusky's continued unlimited, access to children was made by the DPW. 

On June 1, 1998, former PSU police chief Tom Harmon notified Gary Schultz that the investigation concluded with no criminal charges.  In addition, the DPW notified Jerry Sandusky that he had been cleared.  Therefore, in the proper authorities determined that Sandusky did not commit an act of abuse thus there could be no "concealment" of abuse by PSU officials.

2001 Sandusky Incident

Much remains unknown about the 2001 Sandusky incident in terms of the actions of PSU officials.  The media, Louis Freeh, and unfortunately, the PSU Board of Trustees all aligned with the PA Attorney General's version of events, which simply assumed a report was not made to ChildLine because no records exist.  The fly in the ointment, however, is that records of unfounded investigations are expunged, thus a lack of a record does not equate to a lack of a report or a lack of an investigation.  As I noted above, it is entirely possible that a report was made to DPW and, just as in the 1998 case and the Tutko case, there was no intervention on the part of DPW.

However, one thing is certain about the 2001 incident -- PSU officials did not conceal this information from the public and also fulfilled their duties under the standing orders of the Board of Trustees.  In 2001, Gary Schultz consulted with then PSU General Counsel Wendell Courtney about how to respond to the incident.  According to an email from Courtney (see page 84 of Freeh Report), he recalled that someone from PSU contacted the local Children and Youth Services about the incident. Under the standing orders in effect in 2001, it was Wendell Courtney's duty as the General Counsel to advise the BOT on this matter (and all potential legal matters).  

Next, then-PSU Athletic Director Timothy Curley relayed what Mike McQueary had told him to Dr. Jack Raykovitz, the Executive Director of The Second Mile.  Sandusky had retired from PSU in 1998 and was working full time as a consultant and Board Member of the charity he founded.  Therefore, PSU reported Sandusky's behavior to his employer, who under the relevant Pennsylvania statute was required to make a report to ChildLine.  Again, there was no concealment of Sandusky's abuse from the public by PSU.

Post 2001

After the 2001 incident, PSU officials were not made aware of any other reports of inappropriate conduct by Sandusky, thus PSU officials were not concealing anything.

Consent Decree Key Finding Two - Analysis

Clemente:  Freeh viewed investigation
through the wrong lens.

Not Supported:  This particular finding exemplifies the conclusion of former FBI-profiler James Clemente that Louis Freeh viewed the Sandusky case through the wrong lens.   Sandusky's access to Penn State's facilities did not enable his abuse.  Penn State facilities were simply one of the "private" places that Sandusky found to abuse his victims.  Sandusky's abuse went on in hotels in State College, PA, Syracuse, NY, and other locations.  He abused Aaron Fisher in the wrestling room at Central Mountain High School.  He abused children in the basement of his home.  Where the abuse took place had nothing to do with enabling Sandusky's crimes - otherwise, the list of defendants would be rather long and include the State College Hilton Garden Hotel, Central Mountain High School, and the San Antonio Riverwalk Marriott.

To be clear, Sandusky's abuse was enabled by his ACCESS TO CHILDREN, and that was something that PSU had absolutely no control over.   Those who controlled Sandusky's access to children -- primarily The Second Mile - failed to restrict that critical access (after the report in 2001 and even after learning of Sandusky's abuse finding in 2008).

It is notable that the Sandusky trial verdicts revealed that his abuse moved off campus after 2001 and there were no convictions related to crimes on Penn State campus from 2002 to 2009.   Unfortunately, Louis Freeh didn't pay attention to such trivial matters as the trial verdicts and made the claim that Sandusky's inappropriate conduct continued on the PSU campus at sports camps up until 2009.  

Finally, PSU football program staff members are not professionally trained in recognizing the signs of child sexual abuse.  When the professionals were called in to investigate in 1998, they  (knowingly) ignored the red flags of abuse, yet no one in the media or on the PSU BOT (save Al Clemens) has raised this issue.  

When Clemons raised the issue, Special Investigations Task Force chair Ken Frazier informed Clemons that he wasn't concerned with DPW's failures.  In short, Frazier appeared to be letting PSU the fall for the colossal failures of the state agency who is chartered to protect children from abuse.  This approach has been consistent from the outset of the scandal by the PSU BOT and it has to stop.  Pennsylvania's children continue to be abused and are dying because the most necessary reforms to child protection DID NOT result from the Sandusky scandal.  

Consent Decree Key Finding Three - Analysis

Freeh: Used no investigation standards

Not Supported:  This particular finding exemplifies that Louis Freeh's investigation was conducted using no meaningful standards to make findings or conclusions.  While it is true that Spanier did not inform the BOT in 1998 or in 2001, it was not his role under the existing Standing Orders at the time to do so.  Those notifications were supposed to be made by the PSU General Counsel.  

The statement that Spanier did not inform the PSU BOT about the grand jury investigation is patently false.  The Freeh Report (Exhibit 6A) contains an affidavit from Cynthia Baldwin that provides a summary of the meeting with the BOT on May 12, 2011 in which the grand jury investigation was discussed.

As for Freeh's statement regarding the Board's failure of oversight in 1998 and 2001 is misplaced, given that the BOT was not informed of either incident.  There was scant evidence to support Freeh's finding regarding an environment where senior University officials felt unaccountable to the Board.  The finding was based on the opinions of an untold number of trustees who stated that meetings felt scripted and that they were rubber stamping decisions.  Other former trustees who commented outside of the Freeh investigation stated that the Executive Committee of the BOT made most decisions with the expectation that other trustees would "rubber stamp" their decisions.  On November 9, 2011 and on July 23, 2012, that truly appeared to be the case.

Consent Decree Key Finding Four - Analysis

Freeh accepted TSM's
hearsay as evidence

Not Supported:  This finding is yet another example of Louis Freeh's investigation making a conclusion or determination based on scant evidence.  The only reference to avoiding bad publicity in this case was a hearsay statement by the general counsel of The Second Mile, who informed the Freeh team that Dr. Jack Raykovitz had informed him Curley suggested "to avoid publicity issues."  

The second deficiency in this finding is the statement that "Spanier, Schultz, Paterno, and Curley -- repeatedly concealed critical facts relating to Sandusky's child abuse from the" various parties.  There were only two known incidents of inappropriate conduct by Sandusky and the first, in 1998, was ruled to be an "unfounded" case of abuse.  Therefore, if there was no abuse in 1998, there was no concealment.  Next, in 2001, the PSU officials reported the incident outside the University, thus it was not concealed.  

Finally, Chapter 8 (pages 110, 111) of the Freeh Report is titled "Federal and State Child Sexual Abuse Reporting Requirements.  The report DID NOT make a finding that PSU officials (Curley and Schultz) violated the state law (23 Pa. Cons. Stat. § 6311) for which they have been charged.

Consent Decree Key Finding Five - Analysis

Not Supported:  This finding is based on the "strawman" that the University had sufficient knowledge the children were being victimized by Sandusky and the yet to be proven allegation of a failure to report the 2001 incident to the authorities. 

As noted earlier, the University reported the 1998 incident and assisted in the investigation of Sandusky. Moreover, the 1998 University Park police report confirmed that the University Park police and the State College Borough Police were diligent in carrying out the criminal investigation.  The same could not be said for the PA DPW, who appeared to put forth a minimal amount of effort based on the available evidence.  

Given that DPW did not make a finding of abuse, there was no legal basis for Penn State to subject Sandusky's retirement to penalty.  Also, as noted earlier, the use of PSU facilities did not enable Sandusky's abuse.  Sandusky's grooming began upon meeting the children at The Second Mile and through his "mentoring" role at the charity.  PSU facilities were merely one venue among many that Sandusky used to abuse children.

In 2001, University officials acted upon a vague report of an incident about one of its former employees (Sandusky ) and a youth showering together.  The response was to make a report outside the University to The Second Mile (who was Sandusky's current employer).  The Second Mile was legally responsible to make a report to the authorities and it admitted that they believed the issue was a "nonstarter."  They were aware that Sandusky was showering with children and apparently condoned his behavior.

The singling out of the football program in opting out of University programs was also not supported by the evidence in the Freeh Report. The report contained only University wide statistics. Overall, the University was not in compliance with the Clery Act.  The Freeh Report found that the University had no centralized office for policy and legal compliance, however, in most organizations the function is the responsibility of the General Counsel.

Finally, the allegations of a "culture of reverence for the football program" was primarily supported by the 2000 incident where the janitors did not report Sandusky's abuse of Victim 8 because they allegedly feared for their jobs.  Ironically, when Mike McQueary observed Sandusky's similar behavior just three months later, he did not hesitate to report the incident.  To conclude that the "culture" revered the football program based on a single incident is simply an exaggeration.

SUMMARY

The Freeh Report promised an independent, full, and complete investigation of PSU officials alleged failure to respond to the incidents involving Sandusky's conduct on campus and the circumstances under which his abuse of children could occur on University property.   

In short, the Freeh Report was an abject failure with regard to all of its objectives.

First, everyone who has conducted a full review of the Freeh Report found it to be incomplete on a number of levels.  Only one PSU official involved in the Sandusky incidents (Spanier) was interviewed by the Freeh team. Significant participants not interviewed included Wendell Courtney, Tim Curley, Gary Schultz, police Chief Tom Harmon, and Mike McQueary.  As a result, the report can hardly be considered "full."

Next, Court proceedings in July 2013 revealed the Freeh withheld critical email evidence from the report which biased the report in favor of the government agencies who did not indicate Sandusky for abuse in 1998.  The Freeh Report implied that DPW had taken over the case from Centre County CYS in early May, however, emails introduced at the preliminary hearing showed that CYS was engaged in the investigation until at least May 27, 1998.  This is significant because one of the underlying premises of DPW's failure to indicate Sandusky was that it was unaware of the psychology report of Dr. Alycia Chambers.  According to Chambers, she provided an oral report to DPW and written reports to the University Park Police and Centre County CYS stating that Sandusky was exhibiting grooming behaviors typically associated with pedophiles.  Given the ongoing cooperation between DPW and CYS up until the end of the investigation, it strains credulity that the DPW was unaware of the Chambers report.  The Freeh Report failed to fully investigate the 1998 incident and identify its failures.

The independence of the investigation was compromised very early in the process.  Shortly after it was announced that Louis Freeh had been hired by the University.  Governor Tom Corbett stated:

Corbett compromised the
independence
of the investigation

I'm very pleased with Ken Frazier leading that. Ken – I've only known him a short time – but I'm very impressed with his leadership. I'm very impressed that he has put together some people, including Ron Tomalis, on behalf of the administration and also as [state] secretary of education, on that team, and the selection of Louis Freeh is I think a very good one. I'm sure most of you by now know the former director of the FBI and former federal judge Louis Freeh was appointed.

And I think one of the reasons that someone like Mr. Freeh was appointed is because he understands the role of a grand jury investigation, the role of the prosecutors and will work well with the attorney general's office and Attorney General Linda Kelly so that [obstruction of the attorney
general's investigation] does not happen.

In short, Freeh was not independent and, as the evidence from court proceedings revealed, was receiving evidence and information obtained by law enforcement during the Sandusky investigation.  Examples of evidence turned over to Freeh included the Schultz "secret file" and the email evidence.   

Freeh made many false statements

Even more egregious was that Louis Freeh made false statements during his press conference that it was his team who made the discovery of the evidence.  His reports of email discovery were refuted by witnesses John Corro of the PSU IT Department and Braden Cook, of the AG computer forensics unit. 

His statement of finding the Schultz file was refuted Kimberly Belcher (who admitted to turning he copies of the Schultz file over to the AG).

It is also well documented the PSU officials (Spanier, Curley, Schultz, and Paterno)  responded to both incidents and there should be little debate over the 1998 investigation involving law enforcement and child welfare investigators.  At the end of the 1998 investigation, the University had no reason to believe Sandusky was abusing children because that was the conclusion drawn by the trained professionals.  In 2001, it is an indisputable fact that PSU officials reported Sandusky to his employer, who was ultimately responsible for ensuring the welfare of the children who were participants of The Second Mile.  As the evidence in this case revealed, The Second Mile did not act to protect children in 2001 nor did they do so in 2008, after they were told of Sandusky's abuse finding.  As a result the charity's inaction, Sandusky was able to access children and take them to various locations for abuse.  

Based on the trial verdicts, it appeared that the actions of Curley, Schultz, Spanier, and Paterno prevented future acts of abuse from occurring on the PSU campus after 2001.  All crimes committed after 2001 occurred elsewhere.

In conclusion, the Freeh Report findings provided an insufficient basis for the NCAA Consent Decree and should have never been used as a proxy or substitute for an official NCAA investigation.

The NCAA Consent Decree and its associated sanctions should be rescinded.