Sandusky scandal marked by deception, suppression, and manipulation (Part I)

In order to make the case against Sandusky and PSU football (but no one else), the Commonwealth and others suppressed and manipulated evidence

By
Ray Blehar

If things had gone according to the original plan in the Sandusky investigation, Jerry would be a free man, The Second Mile charity would be thriving, Joe Paterno would have retired as the winningest coach in Division I football, and life would have went on as it always did in Happy Valley.

Ironically, it was not Jerry Sandusky that changed life in Happy Valley as we know it, but rather, it was Governor Tom Corbett, whose political vendetta against Graham Spanier set everything in motion. 

The trail of evidence in this case will demonstrate how the actions of Corbett, Freeh, Erickson, the Patriot News, and others turned what should have been The Second Mile(TSM)/Department of Public Welfare (DPW)  scandal into what became known as the Penn State sex abuse scandal.   The evidence also indicates that activities occurring at PSU, TSM, and other places were not just a matter of coincidence.

By sensationalizing the 2001 incident at PSU, Corbett and his allies diverted the attention away from the people who enabled Sandusky’s access to children- DPW and The Second Mile - during his decades long period of abuse and shifted the blame on PSU's "football culture."

Each person or group was motivated by self-interest, which revolved around  just two things - money and power.

Initial Investigation -- December 2008 to October 2010

Sara Ganim, who won a Pulitzer Prize for local reporting, erroneously reported that the Sandusky investigation lagged because only one investigator was assigned to the case.  The truth was that two state policemen were initially assigned to the case, who were then replaced by one state trooper, and then another.  Essentially, a game of "musical investigators" was played early on – until the case ended up on then-Attorney General Tom Corbett’s desk.  Once there, a second investigator, narcotics agent Anthony Sassano was assigned to assist Trooper Scott Rossman to work the case.  The investigation was led by regional director Randy Feathers, who stated he made every resource decision in the case and that he didn’t want a whole lot of investigators on this case.  He remarked, "You want to keep it as small as possible." 

One of the key questions about the Sandusky case was why the child predator unit was not used.  Additionally, why were narcotics agents and state troopers investigating a child sex abuse investigation?   Feathers stated there was a shortage of manpower due to the "bonus-gate" investigation, however I suspect that answer is just part of the ruse.  History showed the investigation lagged even after eight additional troopers and four agents were added.

According to information on the public record, the troopers and agents assigned to the case could not find any other victims to corroborate the allegations of Aaron Fisher, the original complainant/victim in the case until November 2010.  

Fisher’s book, Silent No More, reported that the police relied exclusively on Fisher to identify possible victims and the only records subpoenaed in the early investigation were employment records starting with the letter “S” from The Second Mile (TSM). 

Amazingly, those records were said to be missing.  

The police did not obtain warrants or subpoenas for TSM participant records to find names of potential victims, nor did they obtain a warrant to search Sandusky’s home and office until two years into the investigation.  One certainly has to question the procedures and the thoroughness of the initial investigation.   As the investigation approached two years in duration – and even with a grand jury enpaneled, the case was going nowhere – right according to plan.

Meanwhile at PSU, the Board of Trustees decided to end their over half century relationship with the legal firm McQuaide-Blasko and hire their own in-house counsel.  It was no coincidence that the move to make that happen occurred in Spring 2009 - right after the Sandusky investigation hit Corbett's desk.  Cynthia Baldwin was hired and in place by February 2010 -- in plenty of time to ensure that nothing from the Sandusky case would roll onto the PSU BOT.

Changes were occurring at TSM, as well.  Sandusky resigned from TSM in the fall of 2009, but he continued to stay involved in fundraising and public events involving children.  The TSM board decided to keep Sandusky's abuse finding from the public.  

The charity established a new state level board in 2009.   A review of the state level board revealed that most individuals on the board were experts at development/fund raising or were in real estate development/construction. Only two people appeared to be child advocates or community volunteers.

In the restructuring, TSM added a few new heavy hitters - including former PSU football All-American, ESPN analyst, Matt Millen,  Senator Jake Corman and the Deloitte executive soon to be Buffalo Sabres chief development officer, Cliff Benson.       It appeared the TSM charity was ready for life after Sandusky and was going to use Millen, Corman, and Benson as their new front men for fundraising.  

In September 2010, Sandusky publicly announced his retirement from the charity.

October 2010 - Corbett's Not So Invisible Hand

Governor Tom Corbett

In October of 2010 Corbett, who became furious after seeing Spanier talking with his gubernatorial opponent Dan Onorato, was overheard by a number of people at a Penn State football game promising that he would eventually get Spanier fired.  Years later, at the January 2013 meeting between Corbett and the former PSU football players, Corbett admitted that his comment, "remember that little boy in the shower" was directed toward the vote on the firing of Spanier.   

Corbett’s anger toward Spanier caused him to consider using the Sandusky probe as a means of taking out his opponent.  Documents obtained in the course of this investigation indicate that Corbett’s Office of Attorney General (OAG) requested Spanier's e-mails on or about October 2010.   

Around the same time, Jan Murphy of the Patriot News sent an e-mail to Graham Spanier to ask about his knowledge of an investigation into former assistant football coach Jerry Sandusky.  Spanier replied that he had no knowledge of the investigation, sending blind courtesy copies to PSU's PR employees Bill Mahon and Lisa Powers.  Powers was told PSU didn't know anything about the investigation, although a McQuaide-Blasko lawyer received and discussed a January 2010 subpoena for Sandusky's employment records with newly hired counsel Baldwin. 

At that point, it appeared that Baldwin was keeping PSU's leaders in the dark about the ongoing investigation of Sandusky – and Corbett's AG office appeared to be leaking information to the press corps.  

November 2010 - McQueary Interviewed

Corbett appeared to wait until after his election to play his next card, which was to release the information related to the 2001 incident witnessed by McQueary to the OAG investigators. I suspect the McQueary incident was known well before the anonymous e-mail tip found its way to Centre County DA, Stacy Parks Miller.  Interestingly, this e-mail has never been introduced as evidence nor has its exact contents ever been discussed at a judicial proceeding.  McQueary's interview in November 2010 and subsequent grand jury testimony in December didn't implicate Spanier, however it provided cause to call Curley and Schultz to the grand jury.

Before that could happen, more evidence (that was to supposed to have remained hidden)  leaked out.

Evidence Suppression - The 1998 Investigation

Jonelle Eshbach

As the book Silent No More revealed, Deputy Attorney General Jonelle Eshbach informed Mike Gillum that the OAG had knowledge of the 1998 incident in June 2009, thus it was some 17 months before investigators found out (via Sara Ganim) about the 1998 case. This is probably one of the more important facts of the case because it backs the theory that Corbett was purposely foot-dragging the investigation.

It is probable that the leaker was not Corbett or one of his associates, but someone else in the OAG who had enough of the foot dragging and wanted Sandusky arrested. I suspect that if not for the leaker, the 1998 investigation may have remained hidden from the public because it revealed the Commonwealth could have taken Sandusky off the streets a decade earlier.  As you will later see, the OAG tried to cover up this fact in the grand jury presentment as well.

It appears the 1998 information was leaked to Sara Ganim, who contacted the mother of the eventual Victim 6.  Ganim, according to a stipulation at the Sandusky trial, had provided the contact information of one of the Sandusky case investigators to the mother sometime in November or December 2010.  The mother contacted the investigator to inform him about her son's incident in 1998 and, by using the book Touched, identified other victims.

 According to the mother, the OAG didn't want to press charges in her son's case. She stated:

“The state cop fought for them,” she said. “I heard it got heated, but he stood his ground because he said my son was the cornerstone of the whole case and how they got the other football boys.”

It is highly probable that the mother told the cops and Ganim about her son's police interview at PSU, leading the Pennsylvania State Police (PSP) to obtain the 1998 University Park Police report of the Sandusky investigation.

However, the mother said something else that indicates evidence suppression may have occurred in the earliest days of the case:

“At one point police told me they’ve had less evidence in murder cases,” she said. “I kept being told, March, April, June, October. ... The AG kept asking for more evidence. The police told me they had enough for 400 counts, but the AG wanted only 40. This whole thing just stinks so much more than we all know.”

At the time the police interviewed the mother, the "official" record on the investigation alleged that there were only two victims in the case - Fisher and the purportedly unknown Victim 2.  If there were enough for 400 counts, and we know there were only five counts in the Victim 2 case, from where and from whom did the police come up with enough incidents for 400 counts? 

The best answer would be from the early investigation at CMHS and other individuals identified by Aaron Fisher.

What Really Happened At Central Mountain?

Dawn Daniels and Aaron Fisher

Most of the public first learned of Central Mountain High School (CMHS) when the Sandusky grand jury presentment and press releases lauded the school employees for their quick action in reporting Sandusky to the authorities.  However, in the weeks after the scandal broke, various news outlets reported that CMHS officials had tried to talk Dawn Daniels (the mother of Aaron Fisher) out of reporting Sandusky.  And almost two years after the scandal, it was found that CMHS principal Karen Probst attempted to undermine Daniel's report to Clinton County CYS.

Obviously, the OAG's presentment didn't tell the truth about what happened at CMHS.  There were numerous questionable incidents by Sandusky that went unreported by school officials, and its possible that the OAG was suppressing more than just those incidents.

Given Sandusky's penchant for being around groups of boys - and that offenders like Sandusky often utilize peer pressure among victims to keep from being discovered - it is highly likely that there were other victims at Central Mountain High School and Middle School.  

The grand jury presentment made mention of another boy, F.A., who was investigated and who claimed that Sandusky would put his hand on his knee and engage in behaviors that made him uncomfortable. The Commonwealth did not press charges in F.A.'s case but did so in the case of Victim 7, who alleged the same things as F.A.  Perhaps the OAG's reasoning not to charge in F.A's case was to make it appear that the "prompt response" of CMHS spared other children from abuse.  And obviously, not having additional victims at CMHS would keep the public's attention and outrage focused on PSU.

An April 2012 motion by defense counsel Joe Amendola requested information on Victims 11-17, then amended the request to include victims 18 through an unknown number.  It is entirely possible that some of these victims were found early in the investigation at CMHS.   In February 2013, former Deputy Attorney General Jonelle Eshbach asked "There are other victims, will there be more charges?"  Again, who were these victims and when were they found?

Finally, one of the other big questions in the Fisher investigation is why did two state troopers (Akers and Cavanaugh) get assigned to the case, rather than the sex crimes investigator Patterson.  After a short time, Akers and Cavanaugh were replaced by trooper Lear.  Then the case moved to Corbett's office and Lear was replaced by Rossman.  The OAG then added narcotics agent Sassano to the mix.

Again, why wasn't the child predator unit on the case, or at least a trained child sex abuse investigator?  This is part of the reason why we really don't know what happened at CMHS or in the Sandusky case, overall.

January 2011 - Corbett Sworn In, Investigation Lags

One of the many myths of the case (propagated by Sara Ganim and others) was that the Sandusky investigation picked up steam in January 2011, after more investigators were assigned to the case by PSP Commissioner Frank Noonan.

While Curley, Schultz, and Paterno were hauled in front of the grand jury that month, the prosecutors came away with nothing more than they already had from McQueary -- an unknown victim and a highly uncertain account of events.  The grand jury testimony and police interviews of these men also disproved the notion of any conspiracy or cover-up because none of the men agreed on even the year the McQueary incident took place or on what happened.  If there was a conspiracy or cover-up, wouldn't these individuals have taken the time to get their stories straight?

As my Report 3 timeline shows, the investigation kept dragging along with Victim 6 interviewed in January, Victim 7 interviewed in February, and then no other victims interviewed until April 2011 -- despite the fact that the mother of Victim 6 and her daughter had provided the police with information leading to five other victims.  Three of the five individuals (Victims 3, 4, and 5)  had traffic or criminal dockets in the system at the time the police got those leads, thus it is hard to explain how the police did not track these men down sooner.

Additionally, the police finally subpoenaed the participant records from TSM in January but there is nothing on the public record indicating those records led to the identification of a single victim.  These facts obviously indicate foot-dragging after Corbett was in office, thus the theory that the election caused the slow-walk appears to be negated.  Instead, the evidence indicates the Commonwealth was reluctant to pursue charges in the Sandusky case - until the March 2011 budget battle.

March 2011 - Budget Battle Strengthens Corbett's Resolve

As the OAG was sitting on a weak hand and with the investigation going nowhere, Governor Corbett announced his 2012 budget in March 2011 -- and with it massive cuts to the Penn State and education budget as a whole.  Graham Spanier fired back at Corbett with his now famous line "Abraham Lincoln is weeping" in reference to the Morrill Act that established land grant universities.  As the battle raged in the press, there was a precipitous drop in the approval polls for the newly elected governor.

Corbett redoubled his effort to get rid of Spanier by having the OAG prosecutors turn up the heat on Cynthia Baldwin to deliver the e-mail evidence in the case (subpoenaed in late 2010) and to get Spanier in front of the grand jury.   Baldwin worked out the March 22nd date for Spanier's interview with the OAG in State College.  Baldwin received the subpoena for Spanier to appear before the grand jury two days after the interview.

Just days later, on March 28th, Sara Ganim e-mailed Tim Curley to inquire about his knowledge of the Sandusky investigation.  Curley referred the matter to the PR staff, who told Ganim they were not aware of an investigation.  Powers subsequently asked  Baldwin about the investigation, to which the attorney replied it was a "fishing expedition."

On March 31st, the Patriot News released a series of articles about the Sandusky investigation.  The first reported that Sandusky was the subject of a grand jury investigation and the second, somewhat suspiciously, was the back story on the story. It stated Sara Ganim had been on the story since 2009 and that the AG's office "declined to speak" with them.  Why did the Patriot News feel the need to make those statements?  

The lady doth protest too much, methinks.

Over the next two weeks, a dozen more articles would be published about PSU and the Sandusky matter.  I dare say that there was little chance all of these articles and op-eds, including at least two from TSM Executive Director, Dr. Jack Raykovitz, escaped the eyes of the PSU BOT -- and particularly former TSM board member, Ira Lubert.  

April 2011 - Spanier Grand Jury and E-mail Evidence

Graham Spanier

During his grand jury appearance, Spanier denied any knowledge of the 1998 incident, but stated he recalled discussing the 2001 incident with Curley and Schultz.  The first part of his appearance went smoothly but in  the second half, prosecutors took on an accusatory tone.  Spanier stated he was "stunned" when prosecutors began using the term sodomy in connection with the 2001 incident and believed that they may have done it just "to get a rise out of me."  Spanier remained solid on the 2001 incident being described to him as "horseplay" and, as a result, the prosecutors came away with very little to implicate Spanier in any wrong doing.

Frank Fina spent considerable time in the Spanier colloquy making an argument for PSU to release all e-mail evidence prior to 1997.  Fina made no mention of any e-mails more recent than 1997 and his references to coded language revealed it was highly probable that the Commonwealth had already received the 1998 and 2001 emails which had those characteristics.   It is also highly probable the original e-mails were also more benign than those revealed in the Freeh Report.  If they had contained the same language as those publicized by Freeh, there would have been grounds to charge Spanier with failure to report child abuse.  However, there were no charges filed against Spanier in November 2011.

Regardless, the e-mails turned over in April 2011 established the date for the McQueary incident as 2001. As a result, the OAG knew that the incident was outside the statute of limitations to prosecute anyone for failure to report child abuse for that incident.  With McQueary's mistaken year testimony in hand, this evidence was suppressed - and the public was led to believe the incorrect 2002 date was the actual date of the crime.  But the OAG possessed very little evidence to implicate Spanier.

It was at this point that Corbett likely made the decision to use the Sandusky prosecution as the means to take out his political opponent.

April 2011 - Sandusky Investigation Finally Moves Forward

April 2011 marked when the investigation finally gathered momentum and the police and the OAG began to put the case together against Sandusky.  Police knocked on the door of Victim 4 and were immediately rebuffed, only to be contacted after the victim's father made contact with lawyer Ben Andreozzi to represent his son.  Andreozzi's name was found through advertisements, such as the one placed on the Dauphin County victim's assistance web-page.

According to public records, only one victim (Fisher) had testified to the grand jury about being abused at the time the police interviewed Victim 4 .The police interviewed Victim 4 several times, prompting him to disclose crimes against Sandusky by telling him stories about nine other alleged victims in the case.  An excerpt of their tape recorded conversation follows.

The Victim 4 interview was likely the big break in the case because prior to his disclosures, all the police had was Fisher's testimony, McQueary's testimony - that didn't have a known victim - and two police interviews of Victims 6 and 7 that didn't include allegations beyond endangerment and corruption.

Victim 7, who was interviewed in February, also made his grand jury appearance in April.  But at this point, there was still not enough to charge because the Victim 4 testimony could have been thrown out due to its contamination.

In May, the grand jury subpoenaed the names of the PSU Physical Plant employees (i.e., janitors) dating back to 1990.  According to Agent Sassano, janitor Ronald Petrosky contacted him to discuss an incident he was told about in 2000.

According to Petrosky, he had read an article about the graduate assistant witnessing a similar crime, and that had jogged his memory of the prior incident.  Unfortunately, the story can't be true because nothing about the McQueary incident made it into the press until November 2011.  The incident would later be debunked, but it remains a mystery who was behind the janitor hoax.

From there, Victims 5, 6, and 3 were presented as witnesses before the grand jury and that rounded out the original set of charges.  Now all that was left to do was for newly appointed AG Linda Kelly to have her staff write the story of Sandusky's abuse that would cause public outrage toward PSU.

November 2011 - The Sandusky Grand Jury Presentment -- The Big Diversion

The November 2011 Sandusky grand jury presentment and press conference had to be a couple of the greatest cases of government deception in Pennsylvania history.  One of the purposes of the November 2011 Sandusky grand jury presentment was to use the 2002 (sic) incident and the janitor incident to inflame public opinion against Penn State officials.  This was done by putting the crimes in a non-chronological order which fooled the reader into believing that if PSU had done something about the 2002 (sic) incident, nearly all of the other crimes wouldn't have occurred.

The reality was that the 2002 (sic) incident was the last crime to occur on PSU's campus - according to the crimes listed in the presentment.

In addition, placing the janitor incident at the end of the presentment was likely done to leave the reader with the impression that no one at PSU would dare report Sandusky for fear of losing their jobs.   The presentment was summarized in a press release by the OAG media chief, Nils Fredericksen, and sent out nationwide over PRNewswire.   I have to hand it to the authors for doing a marvelous job at creating community madness/hysteria about child sex abuse.

Linda Kelly and Jonelle Eshbach at OAG Press Conference

But just to make sure the public "got it" - meaning that PSU enabled Sandusky's crimes - the OAG used a bit of theater at its press conference to hammer the point home.  It placed two large placards on the stage, one with Sandusky's picture and the other with photos of Curley and Schultz.  That was done to anchor the connection between Sandusky and PSU in the minds of the public.

The focus on PSU was also reinforced by the OAG's version of events in the 1998 investigation.  The presentment gave the readers the impression that only the University Park police investigated the case and that former DA Ray Gricar made the decision not to prosecute.  However, the 1998 police report proved that DPW and CYS were involved in the investigation and an analysis revealed that the decision to close the case was made by DPW, not Gricar.

The importance of the suppression of information about the Victim 6 case can't be understated.  It was essential for the OAG to do this to ensure the public didn't realize that the Commonwealth's own agencies could have taken Sandusky off the streets in 1998.

But it was the highly inflammatory language used in the 2002 (sic)  incident, stating "he saw a naked boy ...being subjected to anal intercourse by a naked Sandusky," that caused public furor at PSU and deflected attention away from all other parties involved in this case (i.e. The Second Mile, DPW, CYS, the Pennsylvania State Police, OAG investigators, and Central Mountain High School).

The resulting outrage appeared to cause the PSU BOT to place Curley on administrative leave, to  re-retire Schultz, and to fire Spanier and Paterno.  However, e-mails and other information uncovered in this investigation indicate the Board's actions were planned sometime in advance, but simply thrown off by the leak of the grand jury presentment one week earlier than expected.  Had things gone according to plan, Governor Corbett would have been on campus to run the Board meeting where Spanier was removed from power.  With the early leak of the presentment, Corbett was left to work the phones with then BOT co-chair John Surma to make the arrangements for Spanier's (and Paterno's) removal.  Surma had been pushing for  Paterno's ouster since 2007 and it appeared that Paterno's firing was part of a quid pro quo arrangement between Surma and the governor.

The other big "tell" in the absurdity of PSU's roll-over after receiving the grand jury report was that they had the former General Counsel of Merck, who made the strategic decision to fight each lawsuit individually in the Vioxx case, sitting on the Board.  According to Surma, no one at PSU had reviewed the law pertaining to the charges of failure to report child abuse.  A fair reading of the law revealed that neither Curley nor Schultz were mandated reporters.  But Surma and his cohorts expected the public to believe that a room full of CEOs and the former Vioxx lawyer didn't review the laws or seek advice of counsel in the five days from the leak of the presentment to the firing of Paterno and Spanier?   

People, particularly PSU alumni, are not that stupid.

Despite the best efforts of the OAG to absolve TSM of any blame, the charity received enough bad publicity to cause Executive Director, Dr. Jack Raykovitz to resign.  The new leader of the charity, David Woodle, was uncertain about the charities future, but said it would wait for the review by Lynne Abraham  to complete before determining the appropriate next steps.  

One other signficant and unexpected development that occurred in the aftermath of the presentment was the removal of Schultz "secret file."  After learning that Schultz had re-retired from PSU, his administrative assistant removed the Sandusky file and Schultz's transitory file from his office and delivered them to his home. The file would later force the revelation of the real date in the McQueary incident.

December 2011 - DPW and CYS Go Missing at Preliminary Hearing

Continuing right along with the theme of missing and suppressed evidence, few people have ever mentioned that representatives from Centre County Children and Youth Services (CYS) and the Pennsylvania Department of Public Welfare (DPW)  never showed up to testify at the preliminary hearing in December 2011 (or at the preliminary hearing in July of 2013).  One would think that if there was a failure to report child abuse, the prosecution would bring in witnesses from the child protection agencies to confirm that no report was made.  Perhaps these agencies kept written logs of the calls that could have been presented as evidence that no calls were made.  If those logs exist, they surely will tell the tale.

But more to the original point, why did the Commonwealth rely on the rather uncertain testimony of Agent  Sassano to declare that these agencies didn't get a report in 2002, rather than call in officials from the agencies?  Sassano identified Jerry Lauro, who was retired from DPW during the time frame of the investigation, as the person he contacted to verify no report was made in 2002.  Thus, Sassano did not testify to talking with a current employee of DPW to verify the failure of PSU to make a report.

Why didn't Lauro testify?  I suspect that the Commonwealth kept him off the stand because his testimony would have been impeached.  When you compare what was written in the 1998 police report to his press statements, he was caught in a lie.  Lauro told the press that reports were hidden from him but it was on record that he had reviewed the initial reports with Schreffler and that DPW had received the psychology report from Dr. Chambers.

Similarly, Carol Smith was quoted in the Pittsburgh Post-Gazette denying that Centre County CYS had much interaction with The Second Mile, with the exception of some foster care support, which she characterized  as minimal. However, a check of the 2010 Second Mile Annual Report revealed that the charity had spent $241,295 on Foster Care services.  Sassano identified Smith as the person who told him she could not recall a report or investigation of Sandusky in 2002 (sic).

Rather than take the risk of calling these individuals as witnesses, the Commonwealth again gamed the system to avoid having its case weakened and, with it, weakening the possible leverage on Curley and Schultz.

January 2012 - Paterno Dies, Board Lies

Joe Paterno's death in January 2012 took away the Commonwealth's very slim chance of using him as a corroborating witness for the perjury charges against Curley and Schultz  Under the law, Paterno really could not be a corroborating witness because he was not present when McQueary talked to the PSU officials about the incident.  However, as evidenced by other actions in the case, the law really didn't seem to matter to the OAG.

Paterno's death, according to various legal experts, made his grand jury testimony inadmissible due to the Sixth Amendment's confrontation clause.  As a result, not only had they lost a corroborating witness for the perjury charges, but Paterno was the only other witness outside of a McQueary family member, who would back Mike's story for the Sandusky prosecution.  

However, the experts making the legal arguments for the press, like the press and the rest of the nation, were unaware that Paterno had clarified his grand jury testimony.

That statement came on November 6, 2011 and is excerpted below (my emphasis added):

"As my grand jury testimony stated, I was informed in 2002 by an assistant coach that he had witnessed an incident in the shower of our locker room facility. It was obvious that the witness was distraught over what he saw, but he at no time related to me the very specific actions contained in the Grand Jury report.  Regardless, it was clear that the witness saw something inappropriate involving Mr. Sandusky. As Coach Sandusky was retired from our coaching staff at that time, I referred the matter to university administrators.

By specific actions, Paterno was likely referring to were likely the terms "fondling" and "of a sexual nature" and the OAG's allegation of "anal intercourse."  

Without Paterno as a corroborating witness for the perjury charge and the non-existent evidence of a failure to report child abuse charge, the OAG had almost no leverage on Curley and Schultz at the end of January 2012.  

Meanwhile, the PSU BOT was in disarray and, a month earlier, had hired PR flack, Lanny Davis, to assist them in managing the crisis.  Davis advised the Board to take their message to the press, regarding being caught off guard about the Sandusky investigation and to justify their decision to fire Paterno.  

A number of BOT members met with the New York Times and the Patriot News and admitted that they had received a briefing from Spanier in May 2011, but they were told the investigation didn't involve PSU.  It would later be revealed that Baldwin also briefed them (and the President's Council) on the 1998 and 2002 incidents on campus and that PSU officials had testified before a grand jury.  The BOT had been caught lying about knowing nothing about the Sandusky case prior to November 2011.

As the month came to a close, the OAG hadn't provided an answer to the defendant's requests for the particulars, yet documents revealed that  Fina informed PSU officials that he still expected Curley and Schultz to "flip" on Spanier.

At first, I was puzzled by Fina's confidence, considering the lack of evidence, but then I realized his confidence was not based on his faith in the evidence he possessed, but rather in Penn State's hiring of Louis Freeh and everything that would go along with it.

The Freeh "Investigation"

Governor Tom Corbett boasted that he identified and recommended Freeh to conduct the investigation at Penn State.  While praising Freeh at the outset of his so-called "independent" investigation, Corbett remarked:

"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."

I have referred to Freeh's investigation as "fake" and "phony" -- and when you get right down to it, it was essentially a repackaging of the OAG's work, including evidence suppression.  To wit:

--  E-mails and documents from Gary Schultz's file, which are contained in court filings, were not included in the Freeh Report. 
-- The 1998 police report, Dr. Chambers psychology report, and Seasock's evaluation -- all which pointed to a failure of DPW to indicate Sandusky as a child abuser in 1998 - were omitted from the report.  
-- An interview with a Clery Act official, indicating that he had discussed the Act with PSU officials (rebutting one of Freeh's findings) wasn't mentioned.  
-- A copy of the May 2011 PSU BOT Standing Orders, which also refuted Freeh's finding that Spanier should have briefed the BOT about Sandusky, was not referenced or included.  

Freeh wasn't at PSU to conduct an "independent" investigation.  He was there as a quasi-government agent who would build the case, then help to "convict" PSU officials before they ever got to court.

May 2012 - Amendments to Bill of Particulars & EWOC

With their hand being forced by the turnover of the Schultz file a month earlier, the OAG amended the Bill of Particulars on May 18, 2012, citing defects in the original charges and/or the dates of the offenses.  The Bill of Particulars also stated that defense counsel was provided extensive discovery.  I would submit the latter statement is false, considering that the e-mail evidence to establish the McQueary date was suppressed by the OAG until Freeh released it in July 2012.

In addition to the date change in the McQueary incident, several other changes were made to the Bill, including:
-- Changing the location of the Victim 5 crime from the East Area Locker Rooms to the Lasch Building;
-- Changing the date of the Victim 5 crime from a range of 1996 - 2002 down to August 2001;
-- Changing from "numerous" offenses against Victim 5 to a single incident;
-- Revising the dates of the Victim 3 crimes from 2000-2002 to July 1999-December 2001;
-- Revising the end date of the Victim 9 crime from 2009 to December 2008.

Some of the most suspicious changes were related to Victim 5, which went from numerous crimes over six years to a single crime in August 2001.  According to the grand jury presentment, Victim 5 testified to being abused in a single incident between 1996 and 1998.  It appeared that the change in Victim 5's story may have been related to enabling an Endangering the Welfare of Children (EWOC) charge against PSU officials, since the new date put the crime after the alleged failure to report the 2001 incident.  Is this a case of the victim simply remembering the incident more clearly a year after his grand jury testimony or is it a case of coaching the witness?

The other interesting change is the truncation of the Victim 9 end date from 2009 to December 2008.  December 2008 coincides with when The Second Mile was informed of Sandusky's abuse investigation and the point when they allegedly claimed to stop his access to children.  However, the latter claim has been debunked by numerous sources, including Victim 9 himself, who testified that Sandusky continued to abuse him past his sixteenth birthday in July 2009. This change appears to be an attempt by the OAG to eliminate EWOC charges against The Second Mile.  Meanwhile, the abuse of Victim 9, which occurred years after the last incident on PSU's campus would be used to support the eventual EWOC charges against Curley, Schultz, and Spanier.

A week after the filing of the amended Bill of Particulars, TSM announced it was shutting down and transferring its assets to Arrow Ministries.  The scandal caused donations to dry up and volunteers fled from the charity.  The review of TSM by Lynne Abraham was scuttled under the guise that the transfer to Arrow obviated the need to determine how children were put in danger at the charity.  

June 2012 - Sandusky Trial Was Mockery of Justice

The Sandusky trial also had its share of evidence suppression and manipulation.  While the Commonwealth had changed the date of the McQueary incident a month prior to the trial, it continued to hide that fact that it possessed the e-mail evidence from the PSU administrators.

It appeared that the OAG prosecutors devised a new story on how they arrived at the date of the incident.  OAG narcotics agent Anthony Sassano testified that he established the date of the crime by: looking up the movie Rudy (that McQueary was watching on the night he went to the locker room) in TV Guides; obtaining a diploma from Dr. Dranov; and triangulating the date using vacancies on the PSU football staff.

Curiously, Sassano didn't think to do this in November 2010 after interviewing McQueary and Dranov.  Nor had it dawned on him to do it before he testified a year later at the December 2011 preliminary perjury hearing, where he confirmed he checked for records of the 2002 incident.  Sassano never said what motivated him or what his curiosity was that made him establish the new date right before the trial.   Ironically, Sassano's testimony would keep the public in the dark about the e-mails until they were leaked in late June 2012.

In addition to keeping the source of the date change for the McQueary incident under wraps, the Commonwealth also managed to suppress a great deal of information related to the Victim 2 and Victim 8 incidents.

Victim 2 Incident
In September 2011, investigators interviewed a person who claimed to be Victim 2.  This person would later tell his story to a trained FBI investigator in November 2011, stating that no abuse occurred and adding the detail that he heard a locker door slam and that he never saw McQueary.  The significance of the detail of the locker door slamming was that McQueary had not mentioned that publicly until December 2011.  However, it is a locker room after all and a door slamming is hardly unusual.  Moreover, Tom Farrell, attorney for Gary Schultz stated that this same person was interviewed by OAG and Postal Inspection Service agents and gave four different versions of his story.  As a result, the Commonwealth refused to acknowledge this person as the victim and left Victim 2 as "unknown."

The "unknown" victim actually helped the prosecution's motivation of condemning PSU while sparing TSM because:  1) there was no chance of a rebuttal McQueary's story of abuse in the PSU locker room; and 2) if the victim is unknown, there is no proof he was a TSM participant, thus there were no grounds to charge TSM with failure to report child abuse.  

Victim 8 Incident
At the top of the list of unusual occurrences in the Victim 8 case was the fact that the eye-witness janitor, James Calhoun, was not able to testify because he suffered from dementia.

It appeared that prosecutor McGettigan played a little game to prove that Calhoun was not competent to take the stand.   On the last day of the Commonwealth's presentation - McGettigan offered a stipulation that Dr. Bharat Adroja, an internist from Lock Haven, had examined Calhoun and determined that he was not competent to testify.  McGettigan offered no letter from Adroja verifying the examination or any other proof that the examination took place. The court and the defense accepted the stipulation without argument.  The fact that Dr. Adroja was not listed on the Commonwealth's list of potential witnesses during jury selection indicates this was also a last minute switch by the prosecutors.

The other, more troubling, last minute switch occurred right before janitor Ronald Petrosky was to take the stand.  According to the February 21 and May 18, 2012 Bills of Particulars - as well as the grand jury testimony - the Victim 8 crime scene was allegedly the Assistant Coaches Locker Room.  However, as the counsels discussed the upcoming testimony to be offered, Karl Rominger, defense co-counsel, raised the issue that a curtain was blocking the janitor's view.  Chief prosecutor Fina responded that there was no curtains in the locker room based on the McQueary photos.

In effect, Fina had changed the crime scene from the Assistant Coaches Locker Room to the Staff Locker Room.  Judge Cleland accepted the change and the trial moved forward and Ronald Petrosky testified to the crime occurring in the new location.

Petrosky ended the day's testimony, however when the court came back into session, the second janitor, Jay Witherite, wasn't presented as a witness.  McGettigan argued because there were two janitors as witnesses, it strengthened the case for the excited utterance to be admitted as hearsay.  However, Witherite never took the stand and the court never realized that an essential witness didn't testify (as evidence by Judge Cleland's ruling on the Sandusky appeal).

Cleland sentenced Sandusky to concurrent sentences for the crimes in the janitor incident, thus in his appeal ruling, he stated that if he had erred in the excited utterance ruling, that it was "harmless."  While that may have been the case for Sandusky, it was certainly not the case for Penn State.

Isn't it ironic that the Commonwealth could not identify the victims for the two "most horrific" crimes in this case?  Also, it must be merely a coincidence that the eye-witnesses were both "shaken" by what they saw, each of them failed to intervene and stop the molestation, and neither made a contemporaneous report to the proper authorities.  And it is also merely a coincidence that the crimes took place in the Lasch building, after Sandusky had retired, and at a time when his access was by virtue of his status as an emeritus faculty member.  

The Victim 2 and Victim 8 convictions were used by Louis Freeh to indict Penn State as a "football culture" that put a greater priority on football than on the welfare of children and to promote the completely preposterous narrative that Sandusky's access to PSU's football program was the "very currency" he used to attract his victims.

July 2012 - The Freeh Report and Press Conference

While the story going in was that Freeh was hired to conduct an independent investigation, Freeh's track record in the BP and Wynn cases makes it more likely that Freeh was hired to justify a predetermined outcome.  Freeh's team allegedly conducted over 400 interviews and allegedly examined over 3.5 million documents and e-mails during its investigation.  Yet after all of that "work," all Freeh's team could muster in the way of evidence were three vague e-mails that were hardly definitive in terms of proving who was aware of Sandusky's abuse and what their role was in reporting it.

Possible Tampered E-mail

Freeh was paid $6.5 million to provide the justification for the firing of Spanier and Paterno, and the removal of administrators Curley and Schultz.  

Based on the original charges filed in the case, it is highly probable that the e-mail evidence originally obtained in the OAG investigation did not implicate Paterno or Spanier. It is probable that Freeh's team (likely at the direction of Ken Frazier) made slight modifications to implicate them in the decision not to report the   2001 incident.  

As I pointed out in my Upon Further Review presentation, two of the 2001 e-mails have interspersed html code that may be a resulted in the course of editing.   The red underlined phrase may have been an edit to implicate Paterno.  Other phrases, such as "we become vulnerable for not reporting it" and "we are aware of the first situation" may have been added to enable charges against Spanier and Curley, respectively. 

Given that Freeh's computers were not connected to the University system and were operating in stand-alone status, the time and dates on them could be manipulated.  There would be no server logs to record any changes, thus edits to files could be done without leaving a trace. This scenario cannot be ruled out in the Penn State case until the original files are obtained from the servers and compared with the e-mails printed in the Freeh Report and in the various court filings.

One other piece of circumstantial, corroborating evidence was the statement made by Kenneth Frazier on April 15, 2013 regarding the e-mail and documentary evidence.  In a heated moment, Frazier exclaimed:

"The fact of the matter is, those documents say what they say, and no amount of hand waving can change what those documents say."

The guilty dog barks the loudest.

And Frazier was doing a lot of barking in defense of the "independent" investigation by Freeh and the (by then) discredited Freeh Report.

As the Bagwell e-mails would later reveal, the Freeh group worked hand-in-hand with the OAG investigators to assist in the prosecution of Sandusky. However, we didn't really find out the truth about how much cooperation was going on until Kimberly Belcher, John Corro, and Braden Cook testified about the e-mails and Schultz file at the July 2013 preliminary hearing

OAG forensics expert Cook testified that he joined the investigation in November 2011 -- six months after Corro turned the original e-mail files over to the OAG.  The individual who preceded Cook and accepted the e-mails from Corro remains a mystery, however Cook testified that the critical Schultz e-mails went missing from his inventory in March 2012.  He then testified that a DVD, with files dated in 2005, was supplied to him containing the missing e-mails.  However, he also testified to receiving Schultz's network file share on March 23, 2012.

Not so coincidentally, Louis Freeh stated that his team made independent discovery of the e-mails on  March 20, 2012 -- just a few days before Cook testified to receiving Schultz's network file share.  Coincidence? Hardly.
It appeared that the Commonwealth used the e-mail evidence to establish the perjury particulars for Curley and Schultz in March 2012, yet the Commonwealth was still suppressing the fact that the e-mails revealed the year of the McQueary incident to be 2001 up through May 2012.

History of Mishandled Evidence

Freeh's FBI had a history of utilizing questionable evidence analysis while under his watch, causing  Frederick Whitehurst to blow the whistle on tens of thousands of cases that were bolstered by faulty evidence.  Whitehurst called what happened at the FBI labs "a law enforcement holocaust."

However, none of this history was well known to the public nor to the defendants when the first leaks of the e-mails came about in July 2012 and when the Freeh Report, trumpeting the e-mails as the most critical evidence in the case was sent out world-wide.

Despite the fact there were only three e-mails that had information that could be construed as pertaining to the 1998 and 2001 cases, Freeh painted them as damning evidence to the public.  No one questioned him and some journalists, such as Sally Jenkins, went as far as to say:  "those emails are not just smoking guns, there are flames leaping from them."  

Jenkins and others believed every word that Freeh said in his press conference, which turned public opinion completely against Penn State -- and the University did nothing in its own defense.  Even worse, the University more or less admitted liability for Sandusky's abuse and informed the public it would provide financial settlements and lifetime counseling to the victims.  The public's assumption of PSU officials' guilt was at an all-time high and the pundits were calling for the Penn State football program to be terminated. 

Karen Peetz and Ken Frazier Praised the Freeh Report

Meanwhile, Freeh was riding high and receiving praise for his comprehensive and thorough report. Little did the public know that Freeh had lied about finding the critical evidence in the case, nor had anyone thoroughly analyzed the legitimacy of the Freeh Report findings.  Everyone - save Penn Staters - simply assumed because he was a former FBI Director that the investigation was legitimate.  Even after negative articles surfaced about the rejection of his recommendations to FIFA, the press ignored it and focused on the next big whack that would come down on PSU - the NCAA sanctions.

Erickson Sells PSU Down The River, Marsh Was Window Dressing

Information uncovered in my investigation revealed that OAG officials found evidence of possible minor NCAA violations as early as January 2012 and subsequently informed the PSU and the NCAA.  The NCAA, which at the time was violating its own enforcement and investigation rules by utilizing information obtained in a bankruptcy proceeding for its Miami (Fla) investigation, stated it would "wait for the Freeh Report" rather than act on the OAG's information.   After the release of the Freeh Report, the NCAA decided to use it in place of their own investigation.  It is also notable that the NCAA never provided Penn State with a formal Notice of Allegations -- and instead proceeded directly to punishment.

The PSU BOT hired Gene Marsh at the last minute -- on July 11th -  to help them with the NCAA negotiations.  According to experts, PSU should have hired Marsh or another negotiator with NCAA experience upon receipt of Emmert's letter in November 2011.  Instead, newly appointed Athletic Director Dave Joyner believed the NCAA would "steer clear" of the Sandusky matter and didn't hire anyone.   The delay in hiring a negotiator was a colossal blunder, but as you will see, it appears that the hiring of Marsh was all for show.

PSU President Rodney Erickson allegedly signed the Consent Decree under the threat of a four-year Death Penalty and to avoid an investigation by the NCAA.   The latter point is quite interesting because there was nothing for Erickson to fear if the NCAA investigated. Information obtained in the course of this investigation revealed that Erickson had been informed about the possible minor violations, but more importantly, he was also told that Athletic Director Tim Curley and compliance director John Bove were "fastidious on rules violations, e.g., giving donations."   Rather than stand firm and insist the NCAA follow its own rules, Erickson allegedly went along.  

But where was Gene Marsh?

According to ESPN's Don Van Natta, Marsh had taken a vacation to a one room cabin with no electricity and no running water shortly after being hired by PSU.  Marsh was hired on July 11th.  The Freeh Report and press conference happened on July 12th -- and Marsh, who was hired to negotiate with the NCAA was on vacation??   In Maine.   

At some point, Marsh stopped his vacation and flew back to his office -- in Alabama -- and conducted his  negotiating from there.  Marsh carried a list of potential punishments around with him in the event he actually had to negotiate with the NCAA and sat watching his computer, waiting for an e-mail to arrive with the Consent Decree.

You can't make this stuff up.

As I suggested in this blogpost, it appeared that Erickson was in dialog with the NCAA about punishment at least from July 17th forward.  According to Erickson, the negotiations took place over five intense days. However, I think it is probable that Erickson and other PSU officials were pushing for the NCAA to inflict strong punishments on PSU from the very early stages of the scandal.  One of the first statements Erickson and administrators made in December 2011 was that there should be less emphasis put on football and that academics and research should be the face of the University.

Quite frankly, PSU's actions and inactions during the entire scandal suggested the fix was in from the start. PSU never protested when it was being slammed in the media for its failures, yet ample evidence existed that TSM and the state agencies also failed to put a stop to Sandusky.

The PSU BOT immediately threw its officials under the bus and claimed total ignorance of the pending scandal.  It was later revealed the Board and the President's Council - approximately 50 people - were briefed on the scandal in May 2011.   

When portions of the 2001 e-mail were leaked to the press in early July, PSU declined to comment rather than decry release of information that was allegedly subject to attorney-client privilege.  

Finally, after the Freeh Report was released, the Board never reviewed it, never accepted it, then accepted punishment and told everyone to "move forward."

The NCAA's Ameen Najjar was one of the first to publicly suggest that Erickson had offered up the punishments to the NCAA and that there was no threat of the death penalty by the NCAA.  Najjar, the former investigator, wrote:

"The Penn State deal is a travesty.  The NCAA did not impose anything. Penn State agreed to and self-imposed the penalties, waved all due process and waived any right to appeal. The NCAA had/has NO authority to impose any penalties in that situation and PSU's president sold the school down the river!"

Oregon State President and NCAA Executive Committee member, Ed Ray, backs part of Najjar's story regarding that there was no threat of the death penalty.  On July 23, 2012, Ray said:

"...the overwhelming vote – we took a vote – in both the executive committee and the Division I board was not to include a suspension of play or death penalty, and then we quickly moved to the menu of actions that you heard about today."

Given all of the above, one seriously has to question if Marsh was truly engaged in negotiations.  It is more likely that Marsh,  like Sen. George Mitchell,  was simply window dressing to provide the appearance that we was performing a needed task, when there was really nothing to do.

With the publicity surrounding the Freeh Report and the NCAA Consent Decree, the public was convinced that the Sandusky incidents at PSU were investigated and that all involved were guilty.   

When Governor Corbett held a press conference after the release of the Freeh Report, he was asked about if there would be charges filed against Spanier.  Corbett's reply seems to shed light on his motives in the Sandusky case:

“He wasn’t exactly pleased with my first budget and he let the world know about that.” 


To be continued...