Wednesday, September 3

BOT's Rejection of Freeh Report is Best Way to Fight the new D.F. Lawsuit

Ryan Bagwell's latest find of a lawsuit filed by D.F that reveals that the PSU BOT has set the University up for more payouts -- unless it rejects the Freeh Report

By
Ray Blehar


Bagwell:  Documents obtained thru
Sunshine Fund are exposing the BOT
Ryan Bagwell's latest cache of documents includes not only verification that a Federal investigation related to the Sandusky case is ongoing, but that another Sandusky victim has filed suit against PSU and The Second Mile.  According to a source close to the PA OAG, the number of Sandusky victims is now over 50. 

Translation -- more lawsuits.  

It now appears likely that the PSU BOT was mistaken in its belief that the settlements with 26 victims for $59.7 million would prevent costly litigation and future bad publicity.  

The latest case also could  mean an onslaught of litigation for the co-defendant, The Second Mile charity.  At last check of the charity's 2012 IRS 990 filing, the charity held nearly $4.9 million in assets just one year ago (on August 31, 2013). 


Latest Victim Is More Proof of Bungled Sandusky Investigation

The legal filing states that the latest victim was found by using The Second Mile lists found in Sandusky's home in June 2011.  As I reported in Report 3 (page 22), the investigators failed to follow up on those asterisked names, which included the name, phone number, and mother's first name for Victim 9.   Victim 9 was reported to police by his school's assistant principal after news of the Sandusky charges broke.

Victim D.F.'s family was contacted by police in April 2012 and he was subsequently interviewed at that time.  However, based on statements from AG Kathleen Kane, many of the children on these lists were not interviewed until the Spring of 2013.  Kane said. "I was concerned after I took office and found out that there may be more victims that no one talked to."

This does not bode well for PSU.

Eckel and BOT wrong about lawsuits

Eckel: Disconnected
from reality on lawsuits
At the August 13th, 2014, PSU BOT Conference Call regarding the Corman vs. NCAA lawsuit, trustee Keith Eckel's faulty arguments (starting at 26:30) against challenging the NCAA Consent Decree were based, in part, on the idea that the end was in sight on the NCAA sanctions (i.e., 2016).  Conversely, he saw no end in sight if PSU legally challenged it:

"..the timetable that the Consent Decree encompasses -- we can see the end of that. I do not see the end of that with legal battles."

While it is likely true that the Corman v. NCAA lawsuit could extend beyond 2016 if no settlement is reached, Eckel's rationale to not sue the NCAA in order to avoid legal battles certainly seems disconnected from reality. PSU will be fighting legal battles well past 2016, whether or not it decided to legally challenge the NCAA sanctions.


Lawsuits galore

As the D.F. lawsuit shows, there is no end to the legal battles for PSU regardless of the decision to not sue the NCAA.  As it stands today, PSU is engaged in the Victim 6, Victim 9, Paterno, Et Al v. NCAA, Jay Paterno, Graham Spanier, and Mike McQueary lawsuits as a defendant.  It is also paying for the defenses of Curley, Schultz, and Spanier in the criminal trial -- of which there is no "beginning" in sight.  It is also likely they are going to have to pick up the tab for Cynthia Baldwin in the Schultz vs. Baldwin professional liability case.  Finally, PSU is a plaintiff versus the Pennsylvania Manufacturer's Association (PMA) Insurance Company, who refused to pay for the victim settlements because abuse and molestation has not been covered in PSU's policy after March 2002.





The PMA lawsuit looks like a loser for PSU, who was already warned by the judge for using "nonprecedential memorandum decisions" in its failed attempt to keep the proceedings from moving to Philadelphia (from Centre County court).  Its argument for payment from PMA also appears to be without merit - citing its long history of paying PMA for insurance as justification. As Ken Frazier might say, the University's claims defy the "plain language" written in the insurance policy.


Mitchell:  Little effort needed
to "monitor" PSU Athletics.
While PSU will be a defendant in lawsuits for years to come, it's ironic that it won't enjoin on one in which it  would actually be a plaintiff with the possibility of avoiding the payment of $60 million in fines and avoiding future payments to the Maytag Man (i.e., Athletic Integrity Monitor, former Senator George Mitchell).  As Mitchell's last report revealed, very little of his "work" actually deals with athletics (i.e., 5 pages of the 32 page report) and has become focused on a host of other issues at PSU.  In short, he has exceeded the scope of his contract  in order to be able to bill PSU for his "work."

Mitchell's billing for work outside the scope of his contract could be considered fraud - as could Louis Freeh's fake investigation of PSU.

Given that the fulll Board did not vote on or officially accept the Freeh Report, the benefits of fighting the NCAA and rejecting the Freeh Report would be many -- but especially from the perspective of defending against the Victim 6, Victim 9,  D.F., and likely future lawsuits. 


Fact-Freeh Report/Victim Settlements Cited in Lawsuits

Freeh: Many erroneous findings
The lawsuit filed by D.F., as well as the previous lawsuits by Victims 6 and 9 utilized the erroneous findings in the Freeh Report to allege that PSU enabled Sandusky's abuse.  In addition, the lawsuit filed by Victim 9 alleged that Penn State was responsible for the abuse of over 20 victims which is very likely based on the fact that the Board of Trustees reached settlements with 26 victims.


D.F.
The D.F. lawsuit contains numerous allegations  which are quite similar to statements in the Freeh Report.  My analysis of the lawsuit determined that at least 13 allegations (i.e. 24, 27, 28, 29, 38,  47, 49. 50, 64,78, 81, 82, and 84)  that were tied to findings the Freeh Report.  A few examples follow:

 "24. Defendant-Sandusky abused his authority and positions under the guise of Defendant-The Second Mile and Defendant-Penn State to cause emotional and physical injuries to the Plaintiff.  



Freeh Report at 13: "Several of the offenses occurred between 1998 and 2002, during which time Sandusky was either the Defensive Coordinator for the Pennsylvania State University ("Penn State" or "University") football team or a Penn State professor emeritus with unrestricted access to the University's football facilities."

"27. Defendant-The Second Mile and Defendant-Penn State were negligent in failing to perform the necessary and required background checks on Defendant-Sandusky which may have revealed Defendant-Sandusky's sexual misconduct prior to hiring Defendant-Sandusky and/or placing him in such highly held positions.



Freeh Report at 120: "The policies for background checks on employees and volunteers was significantly inadequate"


28. Defendant-The Second Mile and Defendant Penn State were negligent in failing to manage the risk posed to minor children such as Plaintiff of Defendant-Sandusky, who had sexual interests in children, including Plaintiff, which management would have prevented Defendant-Sandusky from sexually assaulting Plaintiff.

Freeh Report at 16:  "A failure of the Board to exercise its oversight functions in 1998 and 2001 by not having regular reporting procedures or committee structures in place to ensure disclosure to the Board of major risks to the University."

29.  Had Defendant-The Second Mile and Defendant-Penn State 
acted responsibly in confronting Defendant-Sandusky as to the allegations of sexual molestation, Plaintiff may not have been sexually assaulted by Defendant-Sandusky.

Freeh Report at 39:  "Spanier, Schultz, Paterno and Curley did not even speak to Sandusky about his conduct on May 3, 1998 in the Lasch Building."



Nittany Lions Tips Card
47.  Defendant-Penn State has benefited from its affiliation with Defendant-The Second Mile by reaping the public relations rewards of close ties to and participation, such as internships for Penn State football players with a local charitable organization."


Freeh Report at 107:  "Each year The Second Mile distributed playing cards that displayed both the Penn State and Second Mile logos and contained images of Penn State football players, coaches, and other student athletes.  A number of the University's football players and student athletes volunteered for Second Mile youth programs."



49.   Defendant-The Second Mile provides activities for children in conjunction with Defendant-Penn State.

Freeh Report at 107:  In Sandusky's retirement agreement with the University, both parties agreed to "work collaboratively" in community outreach programs such as the Second Mile. 

81.  All defendants concealed from Plaintiff Defendant Sandusky's sexual interest in children, their unsafe environments, and/or their inadequate measures to protect children such as Plaintiff.

Freeh Report at 16:  "..the most powerful leaders at the University - Spanier, Schultz, Paterno and Curley - repeatedly concealed critical facts relating to Sandusky's child abuse from the authorities....and the public at large."

Victim 6

From the Centre Daily Times: “The inadequate oversight, deliberate indifference, failure to report, and intentional concealment of Sandusky’s actions by Penn State contributed substantially to Sandusky’s ability to commit his criminal outrageous and depraved acts,” the attorneys wrote in the lawsuit. 

“Both institutions fostered a culture and/or code of silence that unduly influenced those within their respective ranks from revealing conduct of the nature of that committed by Sandusky from being reported and acted upon.”

Read more here: http://www.centredaily.com/2013/01/23/3474338_victim-6-in-jerry-sandusky-case.html?rh=1#storylink=cpy

 Victim 9

From the AP via ESPN:  "Penn State provided Sandusky the tools with which to ply the craft of a pedophile long after Sandusky's formal ties with the university were supposed to have been severed," the lawsuit said.
Victim 9's lawyers wrote that "it was the inviolable culture of financial and sporting success of Penn State football that made possible the horrific sexual abuse that forms the basis of this lawsuit."
"It's now clear that Penn State enabled Sandusky to sexually abuse more than 20 other children before Sandusky preyed on this boy," wrote the plaintiff's lawyer, Stephen E. Raynes. "Each of those tragic assaults provided Penn State with the opportunity to stop Sandusky, opportunities which Penn State squandered. We will learn through this lawsuit why that happened and what additional lessons Penn State should learn from this tragic episode in its history."

September Freeh Report Discussion

At the July 2014 PSU BOT meeting, trustee Al Lord offered a resolution that stated the Freeh Report's use by the NCAA resulted in harsh penalties to PSU, that the investigation was reviewed by an number of parties and found to be inaccurate and incomplete, and that the Board should complete the investigation.

Prior discussion between Lord and PSU General Counsel, Steve Dunham resulted in an agreement to table the motion until the September public meeting, where Lord will ask for a roll call vote.  Dunham stated that a discussion should occur in the future (but not immediately) due to pending litigation.  

However, it is that pending litigation -- and the allegations based on the faulty Freeh Report --that makes the discussion of the Freeh Report an exigent matter.

In September, the Board needs to take up the matter, and ultimately decide to reject the Freeh Report.  Doing so would take much of the "starch" from the Victim 6, Victim 9, and D.F. lawsuits and could also give PSU a means to void or nullify its previous statements about liability for the injuries suffered by Sandusky's victims.

PSU and BOT Statements

As  I mentioned in Monday's blogpost, Erickson published a five-point promise in November 2011, which stated (as point 4)":

"We will be respectful and sensitive to the victims and their families. We will seek appropriate ways to foster healing and raise broader awareness of the issue of sexual abuse."

In October 2012  the PSU BOT's Legal Subcommittee's took that to the extreme when it crafted a resolution to provide victim settlements and admitted liability for Sandusky's criminal actions. 

"WHEREAS, claims have been and are expected to be made against the University by
persons alleging, among other things, that the University is liable for injuries suffered by such persons relating to the actions of Gerald Sandusky..."

If there is a saving grace or a way to wiggle out of this statement, it is that it was made in October 2012, before the publishing to the Paterno Report, which rebutted many of the Freeh Report conclusions.  The Clemente Report, in particular, would be especially useful in rebutting the victim claims against PSU.



The Clemente Report
Clemente:  Freeh "interpreted
facts through the wrong filter."
The Board should  fully embrace and cite the Clemente Report as its primary basis for rejection of the Freeh Report.  The Board should also state that the conclusions of the Freeh Report were erroneous, based on "common, yet erroneous, stereotypes of child sex offenders," (Clemente at 1). 

As a result of the Freeh Report "interpreting the facts through the wrong filter," (Clemente at 6) it unfairly --and wrongly -- blamed PSU officials for enabling Sandusky's abuse.  However, the even more tragic result of Freeh's report was it  kept the public in the dark about the threat posed by insidious "pillar of the community" offenders.  

PSU trustee Ryan McCombie recognized the value of the Clemente Report and penned an article which should be used to guide the BOT's discussion about why the Freeh Report should be rejected (my emphasis added):

"To me, Mr. Clemente’s report is not about defending Joe Paterno. It’s about recognizing the wolf among us, defending our children and avoiding these preconceptions and mistakes in the future. If we don’t learn and understand the category of preferential sex offenders called “nice guy acquaintance offenders” and “compliant victimization,” as described by Mr. Clemente, we all risk being the pedophile enablers we so despise."

If the Board decides to stand by the Freeh Report, and not recognize the Clemente Report as the more accurate evaluation of how Sandusky was able to commit his crimes, they will be doing a great disservice to the children of Pennsylvania and the public at-large.   

What is at stake in this matter isn't just lawsuits, fines, football scholarships, and bowl games.  



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24 comments:

  1. One of your best articles Ray. If only the BoT would act on your advice. Thanks for all you do. Be well.

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    Replies
    1. Thanks, Carol. I have to hope our elected trustees use this line of thinking to make its argument about the Freeh Report. And they should do it bluntly -- embracing the Freeh Report is enabling pedophiles like Sandusky.

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  2. Ray I do not comment on each, and every article that you write, but do not think that means that I am not appreciative of all the hard work that you do. This is again a great article, and I just wish that the BOT would take the time to read it. In life God has made just the right men for certain jobs, and you are definitely the man for this job. Keep up the good work.

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    Replies
    1. Thanks, catalacjack,
      I won't stop until the truth is known and PA's kids get the protection they deserve.

      Delete
  3. I think the BoT has been very stupid and fiscally irresponsible in trying to buy off every one of Sandusky's victims. Based on the known evidence, I don't think PSU has any liability prior to 2001.

    PSU should sue Centre County CYS for everything after 1998. I don't think they could sue DPW, because that is a state agency. CYS apparently broke the law by not informing Second Mile that Sandusky had bear hugged boys in the shower in 1998.

    PSU should also sue Central Mountain High School for their share of the settlement for victim 1 since some of his grooming and abuse occurred on Central Mountain High School property.

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    Replies
    1. Tim,
      I didn't think CYS could be sued, since it is part of DPW, however there is a lawsuit in Lackawanna County right now.

      http://thetimes-tribune.com/news/lackawanna-county-to-investigate-cys-lawsuit-allegations-1.1738861

      CYS didn't technically "break the law" -- they violated the Public Welfare Code -- and I don't think there is a penalty for that transgression (as there is for violating confidentiality of the victim - as happened in the Singer case in Clearfield County).

      Central Mountain/Keystone School District ignored a lot of red flags AND they violated the school safety code by letting Sandusky roam the halls of schools. They are the entity that truly endangered Fisher and other children.

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    2. Ray,

      Thanks for all your hard work and the batch of recent articles. I certainly hope the Board finally does the right thing and that someone reminds Peetz that we're well into 2014 and this still isn't a distant memory.

      I have to say, though, I've lost all faith that the PSU Board will do the right thing in the near future unless forced to do so. An old friend of mine used to say sometimes you have to drag that horse to water, shove his head under it and take a suction from the rear to make him drink. Maybe with enough of us trying to apply suction we'll finally get the BOT drinking something other than their own kool aid.

      Delete
    3. Jeff,
      Thanks for the kind words.

      I don't have any faith in the BOT doing the right thing either. There are two roads for them....

      1. The Legislature will step in and reform PSU. PSU's change of its board structure in 2003 was an illegal act anyway.

      2. The fall-out from the Federal investigation may force some of the Old Guard and maybe one Governor appointed member off the Board.

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    4. The CYS lawsuits provide a pretty good explanation to why CYS wasn't mentioned in the grand jury presentment regarding the 1998 investigation.

      It also may explain why Freeh lied about CYS being taken off the case by DPW. As I wrote about in a previous blog, Freeh omitted emails that provided evidence that CYS was still involved in the 1998 investigation on May 27, 1998.

      Agree that Fisher and his mother would relish testifying against CMHS.

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    5. I do not see any of the "old guard" ever leaving the Board. They will never admit they made a mistake. They have done nothing to change the opinion of those of us who HAVE followed this tragedy.

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  4. A google.com search reveals numerous lawsuits against CYS. I don't think county agencies have sovereign immunity. Here's one where Luzerne County CYS paid a $775,000 settlement.

    http://www.timesleader.com/stories/Parents-and-CYS-settle-on-lawsuit,121125#.VAe1qhZTZOU

    As part of the PSU settlement Victim 1 reportedly assigned his rights to sue other parties to PSU. They should use that assignment to sue Central Mountain High School, and I suspect victim 1 and his mother would be glad to testify on PSU's behalf.

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  5. The DF lawsuit seems interesting in a several ways.

    It mentions sexual abuse took place in 2008 or 2009. Perhaps it is the second example Attorney General Kane referred to of abuse occurring after Corbett took the Sandusky case.

    Perhaps it is also one of the claims Penn State refused to settle because they didn't find it credible. The complaint seems very short on details of the abuse and has zero details on grooming other than to mention it.

    Unlike most of the other cases, the plaintiff has specific claims that might be independently proven or disproven such as Sandusky purchasing the boy expensive Nike clothes and shoes in 2008 and taking him to a football game on August 30, 2008.

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    1. Tim,
      You could be right that this is the Victim that Kane referred to at the press conference. However, I doubt that D.F. attempted to settle on the first round because he wasn't contacted until Spring of 2013. It's interesting that the police talked to his family in 2012 and not to him. Apparently, the family must have told the police they were not aware of any abuse and the police took that answer.

      At the Sandusky trial, the police also testified that they interviewed about 50-60 kids, but only one time. Typically, the first time a CSA victim is asked if he was abused, they will deny it. The police in this case were not experienced CSA investigators.

      The prosecution included a photograph of the gifts given to Victim 4 -- included golf clubs, a snow board, and numerous other items. They also confirmed he was on the flight for the Alamo Bowl. I'd have to go back and check to see if that was done for Aaron Fisher (he got a computer and golf clubs as well).

      In case you were not aware, the golf clubs were typically used clubs that were donated at The Second Mile golf tournaments. Also, The Second Mile used the leftover stuff from the golf outings as prizes for the kids who attended the Summer Challenge camp.

      "Here you go, kid. You won a six-pack of Miller Lite! Don't drink it all in one place."

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  6. I know this maybe late but, "How do thet reject what they have not read?"

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    1. Does that mean a PhD is really "Piled higher & Deaper"?

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  7. Well Charlie Thompson and the PN are at it again. He takes the leap in his summation that the witness was not credible which led to no charges being filed, when his quote from FINA amounted to the allegation not being corroborated and therefor too problematic to file criminal charges. The same excuse as for the Fisher delays. Still unbelievably no one takes the OAG and PSP to task for not putting in place a strategy to protect the children while the investigation continued.

    Even if the pace of the investigation was 100% validated, the lack of a protective strategy is inexcusable, especially to any victim that is validated. Same old tunnel vision of prosecutors caught in focusing on a conviction and forgetting the scope of consequences outside the prosecution. That is what once again the OAG Investigations Director and PSP Command failed to recognize and step up to address with the prosecutors. The line Troopers recognized but command staff failed to.

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    1. Yes, that's quite a leap.

      The AG prosecuted two cases with unknown victims and one of the cases didn't have an eyewitness or any credible evidence to support it (i.e., the janitor incident). The hearsay witness gave two dates for the crimes among myriad errors in his testimony. Yet, Fina prosecuted those incidents and not several others, including this case, that had living, breathing victims.

      Fina's not telling the whole story on which victims went to court and which didn't -- and why?

      The bottom line was that if they could tie the crimes to PSU (and D.F.'s lawsuit really doesn't do that), they got to go trial. The exceptions were Victims 1 (the first) and Victim 9, who came forward later, but was the only one to actually accuse Sandusky of anal rape.

      Delete
    2. Prosecutorial discretion gives him the chance to pick and chose, and they chose less credible testimony when it helped inflate their case but reject it when it makes them look bad.

      Delete
    3. Mike,
      As I mentioned to Tim (below), I also think that the fact that D.F. said his abuse happened during the investigation had much to do with the prosecutorial discretion exercised by Fina.....and the decision not to settle by the PSU BOT.

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  8. Given Penn State's well-publicized position that they were eager to settle with Sandusky victims, it seems surprising that the lawyer would file a lawsuit first before trying to negotiate a settlement. Then again, the lawyer may have been ignorant of Penn State's eagerness to negotiate given that he got the year wrong for the 2001 shower incident witnessed by McQueary.

    DF specifically said Sandusky took him on a shopping spree to a store and purchased Nike clothes and shoes. They were not leftover items from his golf tournament unless Sandusky bought them with a donated gift card. If the shopping spree did occur after Corbett took the case, there may be store records or credit card records to verify the date.

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    1. According to the PN article referenced by Mike For Justice, this victim did engage in settlement discussions with PSU and, according to Rozen, wasn't deemed credible. I find that hard to believe, given that they paid out to the person posing to be Victim 2 and some other claimants with credibility issues.

      It is more likely that the BOT/Settlement attorneys rejected his claim to protect Corbett....and that's the same reason why Fina didn't prosecute the case. It would have proven victims were abused while the investigation was ongoing.

      Shopping sprees were noted by Victims 4 and Victim 10. Victim 9 also said Sandusky purchased sneakers and things for him. Aaron Fisher mentioned that Sandusky bought him "church clothes."

      I agree that if it happened in 2009, there might be a chance to find the receipts.

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  9. Ray - I don't understand why the BoT not settling with DF would protect Corbett. It seems like just the opposite. Had they settled, we never would have found out about the 2008 or 2009 shopping spree and sexual assault.

    I agree it seems very odd that PSU settled other weak claims but wouldn't settle this one. PSU said the other two trial victims who refused to settle were asking far too much. That didn't seem to be the case for DF.

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    1. Tim,
      See the blog I just posted. The collaboration among AG, BOT, and Freeh probably drove the decision to find that D.F. wasn't "credible."

      It will be interesting to see how PSU will argue this victim's lack of credibility.

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