Penn State's counter suit against Spanier provides opportunity to validate email evidence, however, given PSU's track record it will settle the case before allowing the truth to be known
Penn State University's (PSU) counter suit against former President Graham Spanier alleges that Spanier knew about and failed to make full and complete disclosure of his knowledge of the Sandusky grand jury investigation and of the information contained in “the 2012 Discovered Emails."
In response to this suit, Spanier's legal team should seek clarification regarding what is meant by “the 2012 Discovered Emails." More specifically, which emails were found in 2012, what exact date were they discovered, who discovered them, to whom were they provided, and in what format?
As of right now, the answers to those questions are unclear, based on the evidence in that was provided in the criminal cases of Spanier, former PSU Athletic Director Timothy Curley, and former Senior Vice-President-Finance and Business, Gary Schultz.
Freeh’s Email Discovery Statements
During Louis Freeh’s press conference, he claimed that the Special Investigative Council (SIC) discovered the emails from 1998 and 2001. Freeh alleged the emails were used to correct the date of the 2002 (sic) McQueary incident.
“Our investigative team made independent discovery of critical 1998 and 2001 emails – the most important evidence in this investigation. We also confirmed, through our separate forensic review, that the correct year of the Sandusky sexual assault witnessed by Michael McQueary was 2001, and not 2002 as set forth in the original Grand Jury presentment.”
Freeh’s press release of July 12, 2012 was more specific, stating that the SIC discovered the emails on March 20, 2012.
“In critical written correspondence that we uncovered on March 20th of this year…”
The Freeh Report (at 11) also made the same discovery claims. In addition, the report stated they were turned over to law enforcement.
“…the Special Investigative Council discovered the most important documents in this investigation – emails among former President Graham B. Spanier, former Senior Vice President-Finance and Business Gary C. Schultz and Athletic Director Timothy M. Curley from 1998 to 2001 – relating to Sandusky’s crimes. The Special Investigative Counsel immediately provided these documents to law enforcement when they were discovered.”
While the media, and therefore most of the public, never challenged Freeh’s statements about discovering the emails and providing them to law enforcement, common sense and the evidence made public during legal proceedings reveals these statements may not be true.
First, it is simply common sense that PSU legal officials would not allow Freeh’s team to hand over PSU emails to law enforcement without first conducting an attorney-client privilege review.
There could have been any number of sensitive matters in the (alleged) 3.5 million emails (allegedly) reviewed by Freeh’s team. This would be especially true for Schultz, who oversaw the campus police as well as the overall finances of PSU – to include various construction and business deals. Moreover, those 3.5 million emails may have implicated other PSU officials in the Sandusky matter. As such, there is little chance Freeh released these without a review of them by PSU's legal team.
The evidence from the legal proceedings in the Curley, Schultz, and Spanier cases revealed that neither Freeh nor the SIC were mentioned as having any role in the discovery of the critical emails or in providing them to the Pennsylvania Office of Attorney General (OAG).
OAG: No Mention of Freeh’s Role With Emails
Current Pennsylvania Attorney General (AG) Bruce Beemer stated (during the preliminary hearing) that the February 2001 email chain was the only evidence needed to prosecute the failure to report case against Spanier, Curley, and Schultz. However, AG Beemer has never established or otherwise stated that Freeh provided that email chain or any other email to OAG.
OAG forensic expert, Braden Cook, testified to a number of dates when he received email evidence, however he made no mention of Freeh or the SIC providing them.
In summary, the OAG did not establish an exact date when the emails were discovered, who discovered them, and when they were first obtained by the OAG's office.
Cook’s Confused Testimony
Interestingly, each time Cook testified about the emails, he stated they were in provided in 2011, before correcting the date to 2012. Screen shots of his July 30, 2013 testimony follow.
According to Cook, he received a disk (DVD) containing the emails of Gary Schultz in March of 2011 (at 66), on March 23, 2011(at 106), on March 23, 2012 (at 107) and a hard drive from a tape backup on July 2, 2012 (at 70). He also testified (at 68) that the emails from the disk were printed out and used for the legal proceedings.
Certainly it is possible that Cook actually knew the emails were turned over by PSU in 2011 -- and that the most important emails (from Schultz) were recovered in March of that year -- in response to Grand Jury Subpoena 109 (issued on March 24th). Subpoena 109 requested the emails of Curley, Schultz, Spanier, Joe Paterno, Tom Harmon, and others dating back to 1997.
However, the confusion by Cook on the year of receipt may have been more significant than the legal defense team of Spanier believed, who was working under the assumption that Freeh told the truth about his discovery of the emails in 2012.
Corro Stated Emails Turned Over in 2011
On July 29, 2013, PSU Information Technology (IT) forensics expert John Corro testified that former PSU General Counsel Cynthia Baldwin approached him in March 2011 and instructed him to search the email accounts of Curley, Schultz, Spanier, Joe Paterno, and Mike McQueary. This information is consistent with the requirements of Subpoena 109.
Corro testified (at 89) that he was able to obtain the the relevant emails (back to 1997) and provided them to Baldwin on three USB keys in March or April 2011. One USB drive contained all the emails from the men’s accounts. Two other USB drives contained copies of the specific searches requested by Baldwin (Corro at 90, 91).
Baldwin, at Spanier’s colloquy on April 13, 2011, told then Supervisory Grand Jury Judge Barry Feudale that she would provide the emails on USB drives, giving one copy to the OAG and one to Judge Feudale. Baldwin stated the emails would be turned over by Friday, April 15, 2011.
Cook had no involvement with the collection of the emails and IT information related to Subpoena 109 because he didn't participate in the investigation until November 2011. At this point in time, the OAG has not brought forth a witness that was involved in the actual receipt of the USB drives. Based on Baldwin's testimony, the persons who received the USB drives were Judge Feudale and either Deputy AG Jonelle Eshbach, Frank Fina, or Agent Anthony Sassano.
Feudale, Fina, Sassano, and Eshbach should have to testify about the emails and other evidence they received from PSU during the Sandusky investigation. Sassano previously testified that Duane Morris, hired by PSU to assist Baldwin, provided him with a copy of the so called secret file of Gary Schultz. This file contained printouts of some of the emails and information related to Sandusky's retirement.
Like Cook, Sassano never established a date for when the Schultz file was discovered. In addition, Sassano did not establish the date he received the file from Duane Morris, however one of the pages within the file (see Freeh Exhibit 3H) states it was received on February 28, 2011.
If that is the date that Sassano received the Schultz file, then Freeh's statement that his discovery of the emails corrected the date of the McQueary incident is obviously false.
Given all of this evidence, it is highly probable that the OAG had received the emails related to 2001 in some shape or form long before Freeh's claimed discovery in March 2012.
Moulton Report Stated Emails Turned Over in 2011
According to the Moulton Report (at 158), the Pennsylvania State Police (PSP) received a thumb drive containing the Penn State emails on July 7, 2011.
The report did not specify who provided the emails to the PSP, however it is likely that the OAG provided the thumb drive to Rossman. It is also quite obvious that the SIC and Freeh didn't, because they weren't hired until November 2011.
The Graham Spanier v. Penn State case and counter suit is in its early stages. No evidence has been admitted and many questions remain about the discovery and authenticity of the email evidence in this case.
If PSU stands by the story that the "2012 Discovered Emails" were indeed discovered by Freeh and turned over to law enforcement, then whatever law enforcement agency that has the electronic files should have to produce them. On the other hand, if Freeh contends he only provided printed copies, then that evidence should be dismissed out of hand because printouts cannot be authenticated.
While Cook testified that the emails in the case were authenticated, the procedures he described did not involve checking the "invisible" header information to ensure the emails were not subjected to tampering.
Given the importance of the email evidence to Spanier’s criminal and civil cases, the legal team of Spanier should immediately make discovery requests of all the electronic media (i.e., USB drives, hard drive, thumb drive, and disk/DVD) containing emails recovered during the Sandusky investigation and have the relevant files authenticated by checking the "invisible" headers.
If this case goes as did the lawsuits filed by the victims, a judge’s award of discovery of this information to Spanier's legal team will likely result in PSU moving to drop or settle the case.
Hiding the truth has always been the most important thing for PSU in the Sandusky scandal and history shows that the University will pay hundreds of millions of dollars to make sure the truth is never known.