Frazier, Tomalis & OAG instrumental in authoring the Freeh Report

Email and other evidence indicates that the Special Investigations Task Force and the PA OAG had a key roles in crafting the so-called Freeh Report

By

Ray Blehar

As I wrote on September 1st of this year, former PSU President Erickson's five-point promise provided the outline or template for the Freeh Report and the NCAA Consent Decree.  It was released to the public on November 11th -- just days after PSU BOT Co-chair John Surma failed to provide any real answers to questions about the firing of Paterno and Spanier.   

John Surma: Short on the facts

Surma often stated that the Board didn't have all the facts or was waiting for additional facts to come out.  So, the question is: what was learned in just two days that provided Erickson with so much "wisdom" to write the five-point promise?  

The Special Investigations Task Force was established the same day as the five-point promise but had not yet identified its members (done on Nov. 17th) nor named Louis Freeh as the (phony) investigator (done on Nov. 21st).   

I ask again, how was it possible for Erickson to come to the conclusion that PSU needed to "reorient our culture?"  I suspect that gem was put into his ear by Kenneth Frazier.

Frazier, Tomalis, and Freeh

Certainly, as the best and brightest lawyer on the Board, Kenneth Frazier, knew and understood that a grand jury presentment was little more than a one-sided prosecutorial document that was not to be taken at face value.  However, his comments to the New York Times revealed that he either forgot all his legal training (and how a "corporate officer" should act) or he is a hypocrite and a rat who was in on the scapegoating of Paterno, the PSU Three, and PSU athletics. 

Frazier's hypocrisy about protecting
children was exposed in March 2013

“To me, it wasn’t about guilt or innocence in a legal sense, it was about these norms of society that I’m talking about: that every adult has a responsibility for every other child in our community. And that we have a responsibility not to do the minimum, the legal requirement. We have a responsibility for ensuring that we can take every effort that’s within our power not only to prevent further harm to that child, but to every other child.” 

The takeaway was the Paterno, and by extension Penn State, had somehow violated the norms of society by doing exactly as they should have done in 2001 (according to the latest ruling by the NCAA).  Moreover, his sentiments about the protection of children were exposed as hypocritical in March 2013, when in an emotional meeting of the Board of Trustees, he excused the failures of the Department of Public Welfare (DPW) in not identifying Sandusky as a child molester in 1998.  

The very people who are trained to prevent harm to children were given a pass by Frazier -- just as they were given a pass in the Sandusky grand jury presentment (see page 18), and by Louis Freeh.

If you're smelling a rat, then your olfactory senses are working just fine.

In order to take the heat off of DPW for the 1998 failure, the Commonwealth needed to sensationalize the 2001 incident at Penn State.  The Frazier and Tomalis-led Special Investigations Task Force (SITF) went right along with their sham story of a reporting failure (by PSU) in 2001 that enabled Sandusky's abuse and chartered Louis Freeh to find the reasons for the failure (not if a failure occurred).   

No doubt, Governor Corbett was also pleased that Frazier and Tomalis had set the stage for Freeh (with the help and blessing of the PA OAG) to scapegoat PSU  for the DPW's failures:

Corbett: Praised Frazier, Tomalis, and
Freeh's roles in PSU  investigation

"Ah, let me talk about the Penn State investigation first.

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.

The Kangaroo court had been set up.  The outline (five-point promise) was written. The Sandusky grand jury presentment provided the background. Now it was time for the SITF (i.e., Frazier and Tomalis) to work with Freeh to fill in the supporting details of the Freeh Report.

"Final" Draft of Freeh Report Completed in March

Nearly all of the contents of the Freeh Report were in the possession of Penn State and the PA OAG's office when Freeh was hired.  The only notable exceptions were the personal files of Joe Paterno regarding Sandusky's retirement, information gathered via interviews by Freeh, and, perhaps, the Schultz file.  

The Schultz file may have been known to PSU prior to it being turned over to the OAG, given that Schultz informed Baldwin about his Sandusky-related notes on January 5, 2011.  Baldwin could have retrieved the notes from the office of then Senior VP for Business and Finance, Albert Horvath.

UPDATE:  This excellent report by Eileen Morgan provides very strong evidence that the Schultz file was provided to the OAG in January 2011.

Evidence of the existence of a draft report (or at a minimum, draft findings) was revealed in heavily redacted email, dated March 13, 2012 from Omar McNeil of the Freeh Group to Frazier and Tomalis.  VP Tom Poole had written that he was ready to announce progress on Freeh's interim recommendations, but had reservations about the planned roll out.  

As a matter of procedure for investigative reports and other assessments, recommendations flow from findings.  Therefore, by March 2012, Freeh had "reasonably" concluded PSU officials had failed to report Sandusky's abuse based on the existence of recommendation #2 (below).

2. Prompt reporting of abuse and sexual misconduct. At regular intervals we will send the University community reminders, updates and notices to underscore the importance of reporting misconduct and identifying ways to report. This includes enhancing the visibility of the Office of Internal Audit's Ethics Hotline.

For the record, the other recommendations were: 1. Strengthening policies and programs involving minors;  3. Compliance with Clery Act's training and reporting requirements;  4. Administrative reforms; and   5. Athletic Department Security Arrangements. 

The Board announced the acceptance and the University's implementation of the interim recommendations on March 16, 2012.  Rod Erickson provided a prepared statement to the BOT, updating them on the Freeh investigation. 

Frazier characterized Erickson's statement as "perfunctory" (i.e., superficial) in a March 15, 2012 email to Omar McNeil and Ron Tomalis.  

At this point, the draft report apparently did not contain the email evidence that was used to "reasonably conclude" PSU officials had concealed Sandusky's abuse, however that doesn't rule out the draft report had concluded a cover-up by PSU officials.  Again, it had already concluded a failure to report the 2001 incident and likely implicated Paterno in the alleged failure (based on the inaccurate grand jury presentment). 

A March 19th, 2012 email indicates that the report was considered a final draft and that plans were being made for its impending release. 

The key points of the email are that the SITF and Board would review the report prior to release and then there would be no edits after release.  It's clear that the BOT stuck to the second part,  however, Freeh had to issue an errata to edit some (but certainly not all) of the mistakes in his report.  

At that point in March, the SITF and Freeh may have thought that the heavy lifting was done and that there was little to do but wait for the Sandusky trial verdicts and finalize the report.  

Perjury Particulars Cause SITF and Freeh To Revise Report

Analysis of the emails uncovered by Bill Cluck and Ryan Bagwell via their RTK requests to the PA Department of Education revealed that a flurry of activity between the OAG, the Freeh group, Frazier, and Tomalis occurred right after the PA OAG filed (on 30 March) the perjury particulars for Curley and Schultz.

On April 1st, 2012, Greg Paw of the Freeh Group wrote (to Frank Fina):

Frank--

When you have a chance, can you please send us copies of the responses you filed on Friday to the motions filed by Curley and Schultz? Thanks! 

Regards, 

Greg

From April 2nd to April 9th, arrangements were made for a briefing call of the SITF to likely discuss the impact of the perjury details to the draft report.  Analysis of the perjury particulars reveal that a number were based on evidence from the Schultz e-mails.  While the perjury issues had little effect on the report contents, the e-mails became an integral part of the report's faulty substantiation of Freeh's "reasonable conclusions."  

 Also, on April 12, Freeh informed the SITF that he had touched base with federal prosecutors.

If Freeh had actually discovered and turned over the emails on March 20, 2012, as he claimed, why did it take him until April 12 to notify the feds about their possible outcome?  Why was Greg Paw asking for filings that were publicly available?  

The answers to these questions appear to be just as I concluded nearly a year ago, Freeh conducted a phony investigation where he was fed information from the OAG and/or PSU.  In short, little to no investigating took place.

My blog post regarding evidence suppression revealed that the OAG was hesitant to release information that damaged their existing narrative of the Sandusky case.  Additionally, evidence uncovered in my investigation reveals that either PSU officials (i.e., Erickson, et al) did not share their knowledge about who had contemporaneous knowledge about 2001 or they did share it with Freeh but decided to omit it (as was done with other evidence in the case).

On April 27th, an email revealed Frazier and Tomalis had decided to discuss (off-line) their direction to Freeh about his "ultimate work product."

Investigation Wrapping Up?

After the burst of activity in early April, the SITF's activities took a more leisurely pace, with discussions about the Edelman presentations and information concerning governance consultant Dr. David Roselle.  An email from Ken Frazier to Louis Freeh revealed that Frazier told Dan McGinn that the "investigative phase" was wrapping up.

Sent from my iPhone 

On May 5, 2012, at 9:52 AM, "Frazier, Kenneth C." <ken frazierra>.merck.com> wrote: 

I would recommend waiting a few days to see if Wick calls. If he doesn't, j'd call him 

saying that I suggested that you reach out to him based on my conversation with 

McGinn. I would also let him know ( as I told McGinn) that you guys are wrapping up 

the investigative phase. If they have something to say they should speak up now.

In response to a heavily redacted email from Freeh, Frazier responded about his conversation with Dan McGinn and what "fixes" (likely edits to the report) were required.

From: Frazier, Kenneth C. <ken_frazier@merck.com> 

Sent: Saturday, May 05,201210:30 AM 

To: Louis Freeh 

Cc: Omar Y. McNeill; Tomalis, Ronald 

Subject: RE: Meeting with Dan McGinn 

Thanks, Louie. I told McGinn that your investigation would spare no individual in its pursuit of what happened and what "fixes" are required going forward.

However, just a day earlier, Frazier and Tomalis were exchanging emails that appeared to be confirming leaks (i.e., "that didn't take long") to the press by other trustees.  Frazier had misled the Board about the expected completion date of the Freeh Report and the status of the investigation -- which made their way into a media report.

This email (and others) make it clear that Frazier and Tomalis were acting as the SITF and the others were on the investigative team in name only.

However, the plan for Freeh to wrap up his "investigation" and for the completion of the report would be thrown off again by another development in the case.

The Schultz File

The SITF and Freeh email exchanges activities picked up again in late May, likely due to Gary Schultz and Kimberly Belcher turning over the infamous Schultz "secret file."  

The Schultz file required the SITF and Freeh to make significant changes to the report to add context about the 1998 investigation of Sandusky and to include additional items in the Appendices.  As the emails reveal, the incorporation of the new information took considerable time.  Freeh received the Schultz file on May 1st and it appears discussions of the changes took place approximately three weeks later.

The discussions about what  to include from the Schultz file were likely difficult, as the file contained information related to at least a dozen signs of possible child sexual abuse that were uncovered in an investigation that cleared Sandusky.  I suspect that the sensationalism associated with the "Pandora's Box" notation likely won the day in terms of reward outweighing the risk.  Just to make sure the risk was reduced, poor quality copies of the notes were placed on their sides in the appendix to make it more difficult for readers to readily see the details of the handwritten notes.

All of this appeared to go on without the knowledge of the BOT and Edelman. 

Edelman was still under the belief the release of the report was imminent and had prepared questions for Freeh regarding his press conference and Peetz prepared an agenda (for May 20th)  to hear from them.  She also put a Freeh Report status update on the agenda.  

Prior to the meeting, Frazier emailed Tomalis about information received from the Freeh team. Tomalis followed up after the BOT conference call and appeared to compliment Frazier for his handling of the Freeh Report status discussion.  This email again shows how Frazier and Tomalis were keeping others in the dark about the alleged Freeh investigation and its progress.

Finalizing the Report and Readying for Release

After updating the report to include the new information by early June, Frazier and Tomalis discussed the change to the review process prompted by a request from PS4RS that asked the report be released without review.  

This email preceded another flurry of emails on June 6 and 7 between the Freeh Group and the Core Team (i.e., Frazier, Tomalis), subjects "Core Team Questions Call" and "Checking In."  

These appear to be a final round of questions about the report prior to any updates resulting from the Sandusky trial.

On June 9th, Karen Peetz began crafting the agenda for a June 18th BOT meeting regarding 

the report's release.  

Leaks and a Lie by PSU

Two days later, it appeared Frazier was tipped to the leaks of the emails to the press.  His email of June 11th shows that he expected the leaks to be discussed on the Today Show, which came to fruition soon afterward.

The leaked emails prompted PSU to make a public statement, which resulted in the University publishing a known falsehood the Freeh had discovered the emails and turned them over to the OAG.  This was proven not to be the case by the Moulton investigation, which revealed the Pennsylvania State Police received the "Penn State emails" on 7 July 2011, long before Freeh showed up on campus.

"Concealing" Abuse and the "Paterno Hook"

The next day, June 12th, the Core Team exchanged emails about a philly.com article reporting on the leaks involving Paterno and potential charges for Spanier.  

In that exchange, Omar McNeil responded that the report was the first he'd seen in print or on TV.  That email appeared to prompt a response from OAG Supervisory Agent, Randy Feathers, who alerted Fina, then the Freeh group to a June 11th NBC video about the possible new charges.  NBC's Michael Isikoff cited "law enforcement" and "legal"sources informed the network of newly found (!?!) email evidence that indicated PSU officials "concealed" Sandusky's conduct and that the incident never got reported.  The report also mentioned he recovery of Courtney's billing record from 2001.

Concealed?  I wonder which "legal" source provided that information.

The emails regarding Paterno subject read: "today's philly inq has paterno hook."   The article stated:

 "the emails also indicated that the school's iconic football coach, Joe Paterno, had been consulted by one of the three men about the [2001] incident."

After BOT member Keith Masser made public statements that PSU officials were involved in a cover-up, received a call for his resignation from PS4RS, then apologized, Frazier's next move was to praise an ESPN article written by Howard Bryant regarding the excessive respect of icons.

Sandusky Trial "Surprise" Verdicts

On June 25th, Frazier and Tomalis conferenced with McNeil and Freeh, likely regaring the unexpected not guilty verdicts in the Sandusky case -- all related to incidents on the PSU campus.  It is likely the IDSI acquittal in the incident witnessed by McQueary resulted in significant changes to the Freeh Report.  The other two acquittals for Victims 5 and 6 were apparently ignored by Freeh, who continued to report both Victims were assaulted.

More Leaks

A July 3rd email from Frazier appeared to confirm that those involved with the OAG and the Freeh investigations were leaking information like a sieve.  The ESPN story referenced a PSU official who was briefed on the (Freeh) inquiry, who spoke on the condition of anonymity.

Meanwhile, PSU officials made no statements condemning the leak, as had occurred after the emails were leaked to the media in June.

Freeh Report Published, Task Force Disbands

If there is one piece of evidence that reveals that the Frazier and Tomalis were involved in the authorship of the Freeh Report and had no other goal but to publish a final report, Frazier's email and Peetz's response makes that very clear. 

There is absolutely no intention of those involved on the SITF to review the Freeh Report for errors or to make corrections -- as would normally be done by any legitimate corporate board who received a report such as Freeh's.

However, this was really not Freeh's report -- it was mostly the work of Frazier and Tomalis. 

And because the SITF chairs wrote it, they believed it had to be unquestioningly correct.

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