"Missing" documents from the Schultz file would exonerate PSU (Part 1)

The acknowledgement of the Schultz file and the publication of some of its contents was a risky move by Freeh.  This information not only outed DPW and CYS for their failures in 1998, but provided confirmation that the file contained more than was revealed to the public.

by
Ray Blehar

Any analyst can assess what is present, but seasoned analysts are able to consider evidence that is not present to deliver an assessment.

For many years, I examined companies who were pursuing award winning levels of quality.  More often than not, what was missing from discussions in the board room to what was missing on the factory floor provided indicators of the level of quality the company had achieved.

Similarly, in the analysis of evidence during investigations, often missing evidence, such as a missing page from a phone log, a missing expense report, or other missing information often provided valuable insights to discover fraud or malfeasance.

And so it is with the Sandusky Scandal.

From the first Patriot News report about the grand jury to the November 2011 grand jury presentment, to the Freeh Report, to the Sandusky trial, and to the Cleland ruling on the Sandusky appeal, missing information has been some of the most telling "evidence" in the scandal.

As I noted in my last blogpost, there are "chain of custody" issues with the delivery of the Schultz file to the OAG and it is certain that some of the documents in the Schultz file were not made public.

One additional piece of missing information is an interview with police Chief Tom Harmon.  Given that Harmon and Schultz were not interviewed, their exchanges were either memorialized by e-mail or by handwritten notes of Schultz.  These discussions occurred in 1998 and 2001.

Confirmed "Missing" Schultz Documents - 2001

The first set of documents that are "missing" were referenced in the Freeh Report, but not included as exhibits.

End Note 304:  Schultz confidential file note (5-1-12).  Schultz contacts Harmon to inquire allegedly about the 1998 file on 2/12/2001.  If this request was simply for the 1998 file, why wasn't it included?  What other information did it contain?  Perhaps Schultz informed Harmon of the situation before asking about 1998.  That would be entirely logical - and result in a perjury charge for Harmon.

End Note 303:  Schultz confidential file note (5-1-12).  Note memorializing Schultz's internet search for the chair of The Second Mile on 2/12/2001.  If Schultz searched for the Board members on 2/12/2001, why did he make a note asking "who's the chair?" on 2/25/2001?

End Note 318:  Control Number 00681288. Schultz e-mail to Spanier and Curley stating plan to meet with Curley on Sunday, February 25, 2001.  Freeh stated that all three men met on that Sunday.  This e-mail indicates the original plan was for Schultz and Curley to meet.

End Note 319:  Control Number 00681288. Spanier acknowledged the February 25, 2001 meeting. Note that Spanier sent no "acknowledgements" to the 1998 e-mails, which was unusual for Spanier who was known to answer e-mail until the early hours of the morning.

About the e-mail evidence and the 2004 system switch over

E-mail evidence obtained regarding 1998 and 2001 was definitely in digital form. This was confirmed by comparing the time/date stamps of e-mails printed from PSU systems, which are on Eastern Time, to the e-mail evidence in the Commonwealth's Answer to Defendent's Motion To Sever, which are on Greenwich Mean Time.   Also in keeping with the theme of missing information, the Commonwealth did not include Freeh Report Exhibit 2B - which document and computer forensic experts deemed suspicious - as evidence supporting the charges against Curley and Schultz.

Schultz's Behavior

One of the most important notes in the Schultz file is Exhibit 5E, dated 2/25/01, which is a handwitten note stating: "3) Tell Chair* of Board of Second Mile. 2) Report to Dept of Welfare.  1) Tell J.S. to avoid bringing children alone into Lasch Building.  *who's the chair?"   (Shown below)

The significance of this note is that it is an indication of Schultz's behavior.  More to the point, it is a note that Schultz has written to himself, memorializing the recommendations/agreements reached by he and Curley.   Interestingly, the next day, Schultz types essentially the same information in an e-mail to Curley, then retained the 2/25/2001 note in his file.   If he had typed the information into an e-mail, why didn't Schultz throw the other note away?   Schulltz also kept the results of an internet search and a request he made to Harmon in which he got an e-mail reply.  The retention of these files indicates Schultz may have been a "pack rat" of sorts and thus would have held onto most everything he wrote about the incident.

Exhibit 5C, dated 2/12/2001,  also appears to be a note from that Schultz has written to himself, memorializing his conversation with Curley regarding follow-up that should be taken.  This note was likely written late in the evening of 2/12/2001 -- after Harmon indicated the police file from 1998 was available for review at 4:57PM.  This note would not contain the advice of Wendell Courtney, who stated that he was not aware of the 1998 incident. 

Exhibits 2H and 2I are extensive notes (4 pages for each telephone conversation)  that Schultz had with Harmon during the first two days the 1998 incident.  

These notes establish that Schultz was a habitual note taker, who documented discussions from telephone and face-to-face meetings and held onto records involving police matters. 

Suspected Missing "Schultz" Documents 

Given Schultz's propensity for taking and retaining notes, one could conclude there are some very important notes missing from the Schultz file.  To wit:

1.  No handwritten notes or e-mail messages memorializing the Sunday, 2/11/2001 meeting with Paterno and Curley held at Paterno's home.  It is difficult to imagine that neither Gary Schultz nor Tim Curley took notes of the discussion with Paterno.

2.  No handwritten notes or e-mail messages memorialzing the meeting with Mike McQueary and Tim Curley on or about 2/19/2001.  Between Curley and/or Schultz, someone undoubtedly documented what was said at the meeting with McQueary.

3.  No handwritten notes or email messages memorializing instructions/advice provided by then PSU Legal Counsel, Wendell Courtney, on 2/11/2001.  Exhibit 5A, a timesheet from McQuaide-Blasko, indicates that Courtney twice conferenced with Gary Schultz about the 2001 incident.    It is difficult to believe that Courtney did not provide written instructions for Schultz or that Schultz did not write down any advice provided by Courtney.

4.  No handwritten notes or email messages memorializing actions taken as a result of the discussion with Courtney on 2/11/2001.  It is interesting that both Schultz and Courtney recalled that the local CYS was contacted about this incident, but no notes memorializing the contact have been made public by Freeh or the former-OAG officials.  However, Agent Anthony Sassano "slipped up" (for the sixth or seventh time) and testified that DPW had a record of a report of the 2002 (sic) incident (Preliminary Perjury Hearing page 170 - below). 

Who Made the 2001 Report?

Considering that Curley, Schultz, and Spanier did not contact DPW, this leaves two probable alternatives for how the report was made:

1)  CYS officials, who were contacted by PSU, filed the report with ChildLine/DPW - and the report was never expunged per the rules on unfounded reports.

2)  Police chief Harmon filed the report with either CYS or DPW after being informed of the incident by Schultz and the report was not expunged per the rules on unfounded reports.

In either case, there is no doubt, someone from PSU contacted someone at either CYS and/or DPW about the 2001 incident. 

The record at DPW did not materialize without someone calling it in.

There is also little doubt that the public has yet to find out the original contents of the Schultz file.

Next:  What's missing from 1998 (Part 2)