Similar to the NCAA's case against the University of Miami (Fla.), evidence obtained to sanction PSU was improperly obtained through a criminal investigation, violating NCAA rules.
By
Ray Blehar
I've read most of the media reports on the latest Paterno legal filing and I'm not at all surprised that the media skipped one of its most significant passages. The passage is on page 16 and tells you everything you need to know about the rush to injustice by the PSU BOT, Freeh, and the NCAA.
As the passage states, the NCAA knew that the Freeh Report would be discredited rather quickly, but what the Paterno legal filing didn't address (as it was outside the scope of justifying legal standing) was the most fatal flaw of the Freeh Report -- which was recently revealed at the Preliminary Hearings of Curley, Schultz, and Spanier.
The Fatal Flaw
The fatal flaw of the Freeh Report and the NCAA Sanctions against Penn State is that the evidence used to condemn PSU officials by Louis Freeh was obtained through the criminal investigative process (via subpoena) and therefore was off limits (at that point) for use by the NCAA.
Former PSU employee Kimberly Belcher and PSU IT Department employee John Corro both testified that they provided the critical evidence used to sanction PSU - the "secret file" of Schultz and the e-mail evidence, respectively - to the Pennsylvania Office of Attorney General in response to subpoenas.
Belcher's and Corro's testimony contradict the statements of "independent" investigator Louis Freeh, who stated that his investigators had "made independent discovery of the e-mail evidence" and that their finding of the Schultz file was a matter of "skill and luck."
During his press conference, Freeh sheepishly alluded that the Schultz file was obtained in conjunction with the Attorney General's investigation. However, we now know that the Schultz file was first provided to the OAG by Schultz, then a copy of it by Belcher, in April 2012. All references to the Schultz file in the Freeh Report are marked 5-1-2012, indicating receipt from the OAG in May. This proves that Freeh lied about finding the file in conjunction with the OAG.
The bottom line is that the evidence used in the NCAA case against PSU was improperly obtained and should not have been used for the purposes of the NCAA sanctions. In effect, the PSU case has now become much like the NCAA case against the University of Miami (Fla.), in which the NCAA reported itself for violating its own procedures.
NCAA Missteps
In January 2013, the NCAA made this statement in its press release about the Miami (Fla.) case (my emphasis added):
The NCAA national office has uncovered an issue of improper conduct within its enforcement program that occurred during the University of Miami investigation. Former NCAA enforcement staff members worked with the criminal defense attorney for Nevin Shapiro to improperly obtain informationfor the purposes of the NCAA investigation through a bankruptcy proceeding that did not involve the NCAA.
As it does not have subpoena power, the NCAA does not have the authority to compel testimony through procedures outside of its enforcement program. Through bankruptcy proceedings, enforcement staff gained information for the investigation that would not have been accessible otherwise."I have been vocal in the past regarding the need for integrity by NCAA member schools, athletics administrators, coaches, and student-athletes," said Association President Mark Emmert. "That same commitment to integrity applies to all of us in the NCAA national office."
As it does not have subpoena power, the NCAA does not have the authority to compel testimony through procedures outside of its enforcement program. Through bankruptcy proceedings, enforcement staff gained information for the investigation that would not have been accessible otherwise."I have been vocal in the past regarding the need for integrity by NCAA member schools, athletics administrators, coaches, and student-athletes," said Association President Mark Emmert. "That same commitment to integrity applies to all of us in the NCAA national office."
Clearly, the OAG investigation and prosecution of Gerald A. (Jerry) Sandusky did not involve the NCAA, thus it was improper for the NCAA to access evidence from an ongoing criminal investigation. And as e-mails obtained by PSU alumnus, Ryan Bagwell, revealed that the Freeh group was working hand-in-hand with the investigators, who provided them with the access.
Ironically, Kimberly Belcher's refusal to cooperate with Freeh's group in turning over the Schultz file could be one of the more important developments of the case. Had Belcher turned the files over the Freeh voluntarily, the evidence would not have been tainted.
Ironically, Kimberly Belcher's refusal to cooperate with Freeh's group in turning over the Schultz file could be one of the more important developments of the case. Had Belcher turned the files over the Freeh voluntarily, the evidence would not have been tainted.
Similarly, had Freeh's group gone through the process of actually obtaining the e-mail evidence from PSU's systems, instead of having it handed to them by the OAG, it too could have been used "legally" by the NCAA. In addition, John Corro and Cook both testified to doing the key word searches to find the information related to the McQueary, Schultz, Curley, Spanier, Paterno, and Sandusky. Therefore, Freeh's statement of reviewing 3.5 million e-mails and documents to find the critical information is also likely false.
In summary, the phony/sham investigation done by Louis Freeh has done the opposite as it was intended. Instead of providing the evidence to support the dismissal of PSU officials and to support the NCAA sanctions, it has contaminated it.
