Wednesday, June 5

Catching Up With Costas and the Paterno Lawsuit

After nearly 19 months of the media swallowing a false narrative - hook, line, and sinker - Bob Costas finally decides to give truth a chance.

Ray Blehar

Better late than never.

On May 29th, Bob Costas mediated representatives of the Paterno family on his show, Costas Tonight.  I was in the upper reaches of Pennsylvania and well "off the grid," so I missed the live showing.   And my first recap of the show was when I read John Ziegler's account on Friday afternoon.

While I won't go as far a John did to label it "vindication," it was a very well done show and definitely the most positive step from the media that the "truth" (not "truther") movement has seen to date.

Personally, I had long lost any hope that the media would change its view of the Sandusky scandal and am still quite convinced that the media will only come around when the Kane and other investigations conclude.  That said, the Costas Tonight show at least made an argument that there is another side of the story that needs to be heard.  At least, that's how Bob summarized his feelings on Morning Joe the following morning.

Highlighting Costas Tonight

Where's Mark and Louis?  One of the highlights of the first segment included Bob's announcement that NCAA President Mark Emmert and Louis Freeh were invited to participate in the discussion but declined.

Applying Today's Knowledge to 2001.  Bob Costas remains "guilty" of applying what we know about Sandusky today to the 2001 incident and implying that people should have reacted differently.   I believe Dan McGinn made the very strong case that former-FBI profiler Jim Clemente revealed that Sandusky was a sophisticated criminal who was able to fool not only Paterno, but the police and child protection caseworkers.  McGinn's statement that Sue Paterno stated she let their children and grand children play in the pool with Sandusky reinforced the idea that they had no idea about Sandusky's criminal behavior.

No Cover-Up.  Paterno family lawyer Wick Sollers made the case that a cover-up didn't make sense because Sandusky was not only retired from PSU in 2001, but was not even liked by Paterno.  Former Governor and Attorney General Dick Thornburg and Paterno family spokesperson Dan McGinn laid to rest any idea that Paterno and/or Penn State covered up Sandusky's crimes and the 2001 incident specifically.   Costas, McGinn, and Thornburg all stated that numerous individuals were told about the incident and no one even attempted to keep the incident from being spread.  Thornburg added that there was little evidence proving crimes were concealed.

The John Ziegler Moment:  At the beginning of the third segment, Bob Costas repeated one of John Ziegler's key points -- that McQueary did not say he was coerced or told to be quiet about the 2001 incident in his lawsuit against PSU.   One would think that being silenced about 2001 would be a key point in a "whistleblower" lawsuit. The fact is that Paterno and PSU did not ask or request that McQueary stay silent about the 2001 incident.

Doing the Minimum:  Costas  pushed the argument that Paterno and Penn State did the minimum possible in reacting to the 2001 incident and suggested that PSU should have cut all ties with Sandusky after that incident.  His point was not very well rebutted by the panel, who should have stated that it is a matter before the courts regarding whether PSU did enough and that the PSU intervention did stop assaults from occurring on campus after 2001.

The Paterno Legacy.   While Dan McGinn said that the legacy is important to the University, the former players, and its alumni, all that the Paterno wishes is that the truth and the facts will come out.   McGinn believes that in the end, a more "balanced view" of Paterno will be revealed.

The Paterno Lawsuit - Hits and Misses

Hit:  The lawsuit addresses the most obvious damages wrought by the NCAA, namely, defamation of Joe Paterno, pecuniary and emotional damages brought on by the false accusations in the report, and violations of due process rights of individuals damaged by the NCAA, including current and former PSU employees and football players.

Hit:  The lawsuit names Mark Emmert individually and as President of the NCAA as a defendant.  In addition, it names Edward Ray, Chairman of the NCAA Executive Committee as a defendant.  These two men ignored the NCAA's own procedures, then forced a member institution to not only violate its own rules of governance, but to forfeit its rights of due process.

Hit:  The lawsuit seeks a permanent injunction of the Consent Decree, as well as declaring the decree unlawful and void ab initio (from the beginning).  It also seeks compensatory and punitive damages.

Miss:  The lawsuit should have named PSU Trustee Kenneth Frazier as a defendant and co-conspirator.  Frazier should have been named as a co-conspirator in the civil conspiracy for his role as the co-leader of the Board of Trustees Special Investigations Task Force (SITF), who selected Louis Freeh and signed the contract.   Also, Frazier should be sued for his statements at the July 12, 2012 press conference that repeated the false allegations of the Freeh Report and placed guilt on Paterno and other PSU officials for concealing Sandusky's crimes.

Miss: The lawsuit should have named PSU President Rodney Erickson as a defendant.  In the time between the release of the Freeh Report and the NCAA's action, President Erickson could have and should have had the PSU legal counsel conduct a review of the Freeh Report and offer a rebuttal.   Erickson's failure to do so was deemed as tacit acceptance of the Freeh Report and "invited" the NCAA to levy sanctions.  While the Paterno team called the consent decree a "cram down," President Erickson was negligent in not referring the matter to the full Board of Trustees for a vote and violated PSU's own rules of governance.

That said, the lawsuit is a strong effort, although the Paterno team should have spared key members of PSU no quarter after their incomprehensible and irresponsible conduct in responding to the Sandusky scandal.  Had the Paterno team named Erickson and the Frazier in the suit, then it would have enabled discovery of evidence of negotiations and other communications between PSU, Freeh, and the NCAA.

However, I am also eager to see if the Paterno lawsuit plaintiffs will gain standing and then what transpires in the discovery process.

And perhaps we got a hint of what's coming in the discovery process from the current lawsuit.

The "Inside" Story of the Lawsuit

Point 54 of the lawsuit (page 15) indicates that the Paterno team was helped by a member of Freeh's investigation team or the NCAA because the facts presented in that passage reveal facts that only persons in those parties would know.   While you could make a case that the information came from a PSU person, such as a trustee, none of the trustee plaintiffs named in the lawsuit were part of the SITF, thus would not have been privy to those details.  Of course, there could be a "leaker" from within the SITF or someone closely associated with an SITF member.

Point 54 follows:

"54. Instead of demanding that Penn State provide answers to its questions, the NCAA 
waited for the Freeh firm to complete its investigation. Attorneys and investigators working for 
the Freeh firm collaborated with the NCAA and frequently provided information and briefings to the NCAA. During the course of the seven-and-a-half-month investigation, the Freeh firm 
periodically contacted representatives of the NCAA to discuss areas of inquiry and other 
strategies. The final report released by the Freeh firm states that as part of its investigative plan, 
the firm cooperated with “athletic program governing bodies,” i.e., the NCAA." 

In successful investigations and prosecutions of conspiracies and fraud, typically an "insider"provides the key evidence to break the case.  I suspect this passage of the lawsuit is particularly chilling to Mark Emmert, Kenneth Frazier, PSU BOT members, and, particularly Louis Freeh.

Freeh made his reputation at the FBI on the "pizza connection" case, which was broken open by getting FBI agent Joseph Pistone (alias Donnie Brasco) on the inside of the mafia.  Pistone was able to learn the command and control structure of the mafia and also was able to leverage Sicilian mafioso member Tommaso Buscetta into testifying against the mob.

I suspect that Louis Freeh understands that it is now just a matter of time before this whole charade is turned inside out.

The PSU-Miami Connection

Regardless of the success or failure of the lawsuit, it appears that key evidence showing collusion between Freeh and the NCAA has been found.  We also know, by virtue of the "Bagwell e-mails" that there was collusion between Freeh and the former officials in the PA Office of Attorney General.

Given that information, it is easy to connect the dots that indicate the NCAA may have used information obtained in the criminal investigation of Sandusky for its investigation of PSU.

In other words, the NCAA's use of the Freeh Report for the PSU investigation provides similar problems that surfaced in the NCAA's investigation of the University of Miami for using information from the criminal investigation of booster Nevin Shapiro.


  1. Great analysis as usual Ray. Incredible insight that seems to only be available to those who seek the truth. Thanks for your efforts!

  2. per the misses in the Paterno lawsuit; one step at a time, Ray, one step at a time. The Paternos need to be able to separate Erickson and Frazier from Penn State before giving them the business. That'll come during the discovery process.

    1. No need to wait. PSU is going to get burnt to the ground anyway, regardless of the attachment of Frazier and Erickson.

    2. yeah, but the Paternos don't want to be the torchbearers

    3. Joe made PSU what it is. The BOT torched it. The Paterno's need to scorch it -- then we'll help them rebuild it from the ground up.

  3. Keep it coming, stone unturned...

  4. Ray, I agree that the general tone of the program was frank and open, even helpful and hopeful. But not only did the group let stand - or Costas state it too late to rebut - Costas' continuing reliance in both shows on the 'hindsight' reference, but Costas also clearly implied that Coach Paterno had the ability to remove Sandusky's emeritus privileges by denying him access. The privileges of an office, parking, a phone number, etc. were granted as a part of the emeritus negotiation and therefore contractual. Coach Paterno had no influence or discretion on 'allowing' or disallowing Sandusky access to an office space, etc. provided in that contractual agreement with the university.

    1. Agree, Warren. Also, in 1998, the athletic department did not control Sandusky's access to the campus for his Second Mile camps. That access was granted by the Outreach and Cooperative Extension Office.

  5. Ray, are we ever going to get the real truth on how the whole NCAA sanctions came about? Was it offered by Erickson or Emmert?
    Thanks again for staying on top of the real story of how JoePa was railroaded.

    1. Bob,
      I think we'll find out through the criminal grand jury process. Erickson and/or Emmert is going to be forced to talk.

  6. Some random thoughts. The NCAA, for many reasons, cannot afford to be involved in the PSU litigation and the discovery process. Their out is to use the Mitchell Report as cover to lift the sanctions. That gets rid of the Corbett lawsuit. But lifting the sanctions does not restore the vacated wins(which to me is a must) and many aspects of the Paterno Lawsuit. My guess is that the Paterno's and the players would drop their suit if the vacated wins are restored( the vacating of the wins was punitive and the rewriting of history;never trust the side that attempts to re-write/deny history). If the NCAA's challenge to standing is denied, it will cave.

    1. Your guess is wrong. The lawsuit is about legacy, not wins. There is a story yet to be told and it can only be told through this lawsuit. There wil be no settlements. The punitive damage demands will be such that the NCAA will not be able to settle and must go to court. Then all things will be settled.

    2. I hope not. That doesn't make the truth come out. I thought I saw someplace that Freeh was indemnified by the board. So suing him only takes money out of PSU. But if the Paterno's won, they could always donate the winnings back to the university. Freeh report needs to be discredited or at least the parts that are untruthful. Joe wanted the truth to come out and so do I. After that, then maybe Clemente can teach us how to protect our children. Right now there is just too much white noise from both sides.

    3. The whole truth will not come out even if the lawsuit is successful. The parties who need to be examined most are the Penn State BOT and Second Mile. Neither are named in the lawsuit.

      I agree with mhentz - the Paterno's and the players aren't interested in cutting a deal. They want the truth to come out - at least as far as defrocking the Freeh Report.

    4. I agree totally with Ray. I remain completely baffled that there has not been any mention of an investigation, nor has their been further scrutiny, of the Second Mile. I mean, this is the organization JS used to troll for victims. I am still perplexed at how PSU can be under so much scrutiny, but the Second Mile doesn't appear to be on anyone's radar. How is that even remotely possible?

    5. Based on information from a very well-placed source, Second Mile is being investigated by the Feds right now. Charlie Thompson's PN article the other day was nonsense. Thompson and the PN are propagandists for Corbett.

  7. Ah, the old "use a fraudulent presentation of the data to extort 60 megabucks from the people of Pennsylvania" trick! I guess fraud and extortion aren't criminal in PA. I ran the janitor hoax fabricated by Linda Kelly and Freeh past some of my NCIS and JAG friends at a recent museum fundraiser. They laughed their heads off that a judge actually allowed that in court. "It is the KEYSTONE(cops) State". A Federal magistrate who would do something like that would be doing pro bono work in Diego Garcia. Some state DAs (Texas is one) wanted to go after Frazier et al for negligent homicide after it was revealed in 2009 that Merck had submitted a fraudulent data package to FDA for approval of Vioxx. Frazier and Pepper Hamilton consistently denied that their researchers knew of any serious side effects. It turns out that they "cherry picked" the clinical data to include only positive results.(Familiar MO?)80,000 Americans died prematurely as a result. Frazier is an evil man.

    1. Thanks for your post Greg. We are up against it, but I am confident we (and the truth) will prevail.

    2. It makes you wonder if Judge Cleland was in on "it," does it not?

    3. Thank you for connecting some very obvious dots for me Gregory. One question I’ve had since about 1 second after Freeh publicly announced his findings was...WHY DID THE IVESTIGATIVE COMMITTEE HIRE FREEH (bozo the clown)? I did not realize that Freeh was actually a member of the same law firm that Merck used to defend killing 80,000 patients. I agree with Ray, Frazier is the skunk in this entire mess. He handled the Sandusky scandal in the same mindset he handled the Vioxx scandal. Being a CEO of a fortune 500, he did what he knew best...cut your losses, hire a PR firm to cater to media, and move on as quick as possible regardless of the casualties. From the time Frazier has been appointed to lead the Investigative Committee he has lied, colluded with the NCAA (and the Freeh editorial), did his best Gordon Gee impersonation, has kept the board from being transparent, and most importantly treated the PENN STATE brand like it’s just one single brand in a "house of brands" portfolio where the company name (aka Merck) is separate from its individual components (aka Vioxx). This mess Frazier has created has been no accident in my opinion. From the moment he hired Freeh (a supposed independent investigator....YEAH FREAKING RIGHT!) to now he has had an agenda, and that is why he needs to be at the center of this lawsuit. I am willing to bet that after the facts come out and Erickson is forced to speak under oath, it will be revealed Ken Frazier was a central figure in signing the consent decree. Let’s be honest, who has been in control of this mess since day 1....Mr Vioxx himself. Erickson is a puppet, much like his equivalent Linda Kelly. As far as Erickson and Kelly are concerned...Don't hate the player, hate the game.

      The question that I keep asking myself is why did the NCAA bypass their entire procedural process and hand down unprecedented penalties? And the only answer I can come up with is....Penn State, aka FRAZIER forced them to. If the NCAA would have conducted their own investigation, much like Ray has done, it would reveal the skunk (aka Frazier and Freeh). In the mind of Frazier, the only thing in his way to prevent him from "moving forward" would be another investigation, especially an investigation that countered the editorial he paid $10,000,000 for.

      It just so happens Frazier's plan to "move forward" by taking a brief PR hit and blaming a few innocent ppl, has aligned very well with the Grand Jury's presentment. Coincidentally, before the announcement of the lawsuit, the best case scenario for Corbett and Frazier effective has happened. HOPEFULLY, Frazier becomes the centerpiece of this new lawsuit. And, HOPEFULLY Corbett will be brought to justice by Kane!


      On a side note...did you know Edward Ray was employed by Ohio State U from 1970 to 2003? What a treat it must have been for him to stick it to PSU. I hope he finds himself sharing a cell with the Sandusky in the near future.

    4. I do not disagree with what you say. But in the time- line Frazier et al come into play after the Grand Jury Presentation which unnecessarily put PSU and Joe P in the cross- hairs and commenced the media circus. That was orchestrated by Corbett, presumably to divert attention away from something. I agree that Corbett then enlisted his friends on the BOT, namely Frazier to carry the ball therefater, but Villian # 1 is Corbett

    5. From an overall standpoint I agree that Corbett is villian #2 (right behind Sandusky). However, as far as the Paterno lawsuit is concerned, I think Ray is correct in stating they should have included Frazier. I dont think the Paterno's would benefit by including Corbett due to the fact he is already under investigation by Kane. Lets be honest, its gonna take a political figure to prosecute a professional politician (aka Corbett). I think by including Corbett the Paternos would have "muddied" the otherwise clear lawsuit against the NCAA. However, as far as the NCAA is concerned, I think Frazier is much more involved then what has been made publicly available. The concent decree in my opion is the most pivotal point of the lawsuit. I do not think Erickson acted alone in signing the decree. I belive Frazier not only agreed to signing of the decree but also dictated the terms of the decree. At the end of the day Frazier hired Freeh, a professional aquaitance who was supposedly "independent". At the end of the day you dont need to be an expert on the Vioxx scandal to conclude that Frazier cares more about the bottom line then he does peoples lives. And if you can connect the dots, like we are all attempting to do, it is not far fetched to hypothesize Frazier drew from experience when handling Penn State's PR (and in turn their bottom line). If nothing else, one thing is certain, Frazier drew upon past experience in the hiring of Freeh. Maybe it was a coincidence, maybe not, but I smell skunk.

    6. HK,
      Frazier was involved in this long before the grand jury presentment was published. He became a trustee in July 2009, which is the summer after the Sandusky investigation started. I suspect that is one of the reasons the B&I trustees wanted the Vioxx lawyer on the BOT. Who do you think was telling Baldwin how to handle subpoenas and other legal matters? No doubt it was Frazier.

    7. Ray- A few questions:

      1. Corbett had to know(unless he is a complete idiot) that he was commiting political suicide by putting PSU- JP in the cross- hairs. So logic tells me that to him, the alternative(to not doing it) was worse than doing it. What was the alternative that Corbett so feared.

      2. While I do not disagree with you on Frazier(Villian #3) what was his motive for playing ball with Corbett(after all Corbett's gambit could never work unless the BOT fell into place). There is a big downside to Frazier(CEO of Merck). What was he trying to protect; what was his upside. Any thoughts

    8. 1. Corbett's best option was not to charge Sandusky, but he took the risk of doing so in order to take out Spanier. He let a personal grudge get the best of him. What he feared was the truth being uncovered about CYS/DPW blowing the 1998 investigation and his own slip shod investigation in 2008.

      2. Frazier played ball for two reasons: 1) it's what the B&I trustees brought him onto the board to do and it was an ego thing for him to prove he could pull it off; 2) taking the $100M hit for the Sandusky scandal was a better financial move for PSU than having Corbett slice and dice the budget. Also, PSU makes $45M back in interest on the loan to the AD over the next 30 years. So, the hit might be $55M when all is said and done. That's far less money than Corbett could hit them with in one year.

    9. Frazier played ball because that’s what he knew best. Look at the bottom line, cut losses, and move on. Frazier has certainly took ownership of the decisions made by the Investigative Task Force and he has made it very clear they are not turning back. From the limited information available on the web, it does not appear that Corbett and Frazier had a longstanding relationship, which is why I believe Tomalis is an interesting piece of the puzzle.

      Looks like in the end Surma and Peetz realized they made a mistake and they cut ties because they valued their careers more then their egos. It also appears that Mr Freeh got it wrong again...It wasn’t Spanier/Paterno that had absolute control, it was Corbett/Frazier. Hopefully Kane will bring down Corbett and hopefully Paterno et al will bring down Frazier.

      I think its easy for the NCAA...Drop the sanctions and tell the truth. I actually have sympathy for Erickson at this point in the game. Anyone who believes Erickson acted on his own in signing the consent decree isn’t connecting the dots. And in my opinion, it wasn’t Emmert and the NCAA that forced Erickson's hand, it was Frazier.

  8. Please let up with the Vioxx references. You don't know what you are talking about.

    It is beyond all doubt that the charge of rape of victim #2 was just made up by perverted prosecutors. No rape implies Paterno could not know of rapes, which then implies Paterno acted correctly. Costas is talking through his hat if he says Paterno should have done more.

    The problem with Costas is that he cannot think through what is known without making emotional suppositions. He surly seems intelligent, like many, but is tripped up on a very simple syllogism.

    The next step is to realize that such a grotesque lie by prosecutors implies all evidence is tainted. Only one person told on Sandusky, Aaron Fisher, even after they aged only of the Second Mile Program. Sandusky is innocent and should have not been through under the bus by the Paterno family.

    1. If you took a reading class in college you got ripped off.

    2. And so? Are you saying that made up charges are OK with you if they are grammatically correct? Are you saying it is OK for a young man to put a man in prison for a jeep?

    3. This comment has been removed by the author.

    4. WBill,
      There are many "villians" in this case and Frazier is one of them. You are correct that the prosecutors actions were reprehensible, if not illegal.

      I will provide more details on the latter in my upcoming report, which has been delayed based on some other evidence that I am adding. Look for Report 3 to come out later this month.

  9. Just watched the link to the Costa interview on "Morning Joe".

    Costas claims that the Paterno faction deserves a voice. Then he spends a significant part of the interview doing his best Louis Freeh impersonation by stating assertively that Paterno did not do enough, using only speculation and undocumented assumptions.

    He continues to assume that Paterno knew the details of the 1998 investigation despite absolutely no evidence to that fact. Then says that all reasonable people would have connected the dots based on McQueary's day old, vague report of a 10 second shower observation.

    He also seems oblivious to the fact that no victims were abused on the campus of PSU after the McQueary allegation.

    Costaa is a coward trying to play both sides so that he can claim victory and pat himself on the back no matter how this plays out.

    1. Frank,
      I agree the Morning Joe appearance was Costas playing to the PC crowd.

      But the Paterno team should have been stronger all along about Joe not knowing about 1998....but they always leave a little wiggle room there because they didn't talk to him about the one BOGUS e-mail. Their story on 1998 should be, "Joe said he had no knowledge of the 1998 investigation and people need to take him at his word. There is no direct evidence that he was ever informed of that investigation."

      Also, the Paterno team should be hammering home the timeline of the crimes and stating NO ASSAULTS occurred on PSU's campus after PSU intervened.

      Both points are "game changers" and the Paterno team has been weak at bringing those points to the public's attention.

  10. Ray,

    Any idea on what is going on with NCAA in terms of a response to the Paterno lawsuit. I find it odd that when Corbett announced his anti-trust lawsuit on the 1/2/13, the NCAA quickly responed the same day. Unless I am missing something I havent seen a public response to the Paterno lawsuit.