Wednesday, November 12

Governor Corbett Doth Protests Too Much, Me Thinks

Note:  While I continue to analyze the latest filing, I provide this post for your reading pleasure.

Much like Keith Eckel's protest about being compromised, Tom Corbett denies "conspiracy" between his administration, law enforcement, and PSU in firing Paterno.  

Ray Blehar

Corbett:  Protest of conspiracy
between his administration,
the OAG, and PSU was most
interesting part of his latest denial.
Last Thursday, November 6th, recently defeated Governor Tom Corbett once again  downplayed his role in the firing of Joe Paterno.

"They probably shouldn't have fired him. They probably should have suspended him..."

What's this "they" stuff, Governor?  

You interjected yourself into the meeting to dissuade trustees from speaking out in support of Paterno.  

While the controversy over the firing has been discussed many times, I found the last two paragraphs most interesting.

In the interview, Corbett said the board of trustees - on which he sits as governor - never recovered from the decision to fire the 85-year-old coach, because it caused its focus to shift from where it should have been: Sandusky's crimes against children.

"There was no conspiracy from law enforcement or from the administration or from Penn State to do anything to Joe Paterno."

Corbett's voluntary denial of his administration's, law enforcement's and Old Main's "conspiracy" to railroad Paterno (and Spanier) was even more of a "tell" than his campaign supporter and colleague, Keith Eckel's recent protest about being compromised.

There is little doubt the AG and Law Enforcement shifted the focus to Paterno and Penn State and that Corbett had a key role in the firing.

Noonan (Law Enforcement) Shifted Focus to Paterno

Noonan: Condemnation
of Paterno and PSU 

was self-serving
Clearly, despite Linda Kelly's smokescreen of praise for Paterno doing the right thing, the AG was making the Sandusky case about Paterno and PSU from the outset.  Their motive was to deflect attention away from the failures of child welfare in 1998 and their own shoddy investigative work.  

It was no accident that Frank Noonan, the top cop, was outspoken in making his morality case against Paterno.  Noonan's bungled law enforcement investigation of Sandusky took nearly three years because of a failure to form a multi-disciplinary team (or task force), the failure to execute timely warrants, and the failure to follow leads.  

Without scapegoating Paterno and PSU, Noonan and OAG officials would have been in the line of fire and may have had to answer tough questions about the safety of children while the investigation lagged.  

Grand Jury Presentment Focuses on Roles of Paterno, McQueary

The Sandusky grand jury presentment was written to highlight the 2002 (sic) incident over all the other incidents in the report.  Placing the incident second in the chronology of the report made it appear that if PSU had done more about Sandusky, his crimes would have been prevented.  

In addition, the presentment downplayed the details of the Victim 6 incident, omitting the role of child welfare investigators in clearing Sandusky and ensuring he had continued access to his child victims.  

Kelly's AG Office led PR campaign against PSU.
The AG's press release about the presentment shows that it prioritized Sandusky's association with Penn State over that of The Second Mile, who was informed of the 2001 incident and did LESS than PSU.  Also, note that the victims are mentioned last in the release's opening paragraph.

"This is a case about a sexual predator who used his position within the university and community to repeatedly prey on young boys," Kelly said. "It is also a case about high-ranking university officials who allegedly failed to report the sexual assault of a young boy after the information was brought to their attention, and later made false statements to a grand jury that was investigating a series of assaults on young boys."

The presentment and the press release set the narrative of a PSU football sex scandal because it did not protect the names of the key witnesses -- Paterno and McQueary --  who were not facing charges.

University of Arkansas law professor, Brian Gallini, stated that Pennsylvania's presentment system bypasses many of procedural protections provided by federal criminal law. In addition to not protecting the names of witnesses and third parties, the state's system also does not provide an opportunity for witnesses and other parties mentioned by name to file any kind of legal response.

It was the AG's false statement that McQueary "saw a naked boy, Victim 2, whose age he estimated to be ten years old, with his hands up against the wall, being subjected to anal intercourse by a naked Sandusky" that lit the inferno that engulfed Penn State.

The public would have to wait another month for the Curley/Schultz preliminary hearing find out that McQueary never saw a rape and didn't use the words, rape, sodomy, or any other explicit terms (p. 25 of transcripts) when speaking with Paterno.

By that time it was too late.  The false narrative was well established.

The die had been cast by the AG's false statement of a "rape" and the PSU BOT's failure to interview McQueary, which could have changed the narrative considerably.  None of the trustees I spoke with about the firing could explain why the Board didn't interview McQueary.

This lack of due diligence was not out of panic or a lack of time -- it was intentional.

Keep reading.

First, it is important to note that the public has not seen nor read Joe Paterno's grand jury testimony.  

Paterno's testimony was read into the record by AG attorney Bruce Beemer, on December 16th, 2011.  It is not clear the reading was entirely accurate, given that Schultz's legal team has motioned to obtain his tape recording, alleging an error in transcription. 

In Paterno's case, the simple transcription error of "it was" rather than "was it" would be monumental regarding his alleged statement:

"Obviously, he was doing something with the youngster. It was a sexual nature. I'm not sure what you would call it."

Paterno: Police interview shows faulty
memory of the details of 2001 incident
Most objective people who are reading this would conclude that "Was it" seems to fit better contextually.  In addition, it would be quite easy to transpose two words either from the original testimony or when Beemer was reading it into the record.

Accurate or not, it was clear that Paterno was equivocating about what he had heard from McQueary.   Later, when Paterno's October 2011 police interview was released, it was also clear that Paterno had a very poor recollection of the incident and what transpired in its aftermath. 

Here are Paterno's remarks about his interaction(s) with Tim Curley.

SASSANO: Okay, did you tell him that over the phone or did you have a meeting in person here at your house?
J. PATERNO: No, I told him over the phone.
SASSANO: Did you have a subsequent meeting at your house?
J. PATERNO: Oh gez, I don’t know, we.. he’s been over here, he comes over here for a lot of different reasons and something may have come up during our, he may have come over about a football schedule, he may have come over about something else and in the process we may have gotten in to it, I can’t say absolutely no and I can’t tell you I remember doing it.

SASSANO: Did Mr. Curley get back to you at some point in time after that to advise you what actions were taken…
J. PATERNO: No, no, I didn’t, I had other things to do, we had… As I said, Jerry was not working for me.

SASSANO: Subsequent, to that you’re saying Mr. Curley never got back to you, correct, to advise you?
J. PATTERNO: There was no need to get back.

As the full interview revealed, Paterno had no recollection of meeting with Gary Schultz or any recollection of any subsequent meeting or discussion with Tim Curley after his phone call to him.   However, Tim Curley testified (p. 182) to "circling back" with Paterno AFTER he had informed The Second Mile about the 2001 incident.  The emails exhibits - while yet to be authenticated -- also show that Curley had circled back with Paterno after the initial discussion.

This appears to be a case of the AG cherry-picking testimony that fits their narrative and throwing away anything that doesn't.  

The AG made the unconscionable decision to selectively use information of questionable accuracy (from Paterno), then bastardize Paterno's and McQueary's testimony into what an unwitting public believed to be  proof that McQueary told Paterno he witnessed a rape. 

The presentment also suggested a scenario where Paterno watered the incident down to "fondling" or something of a "sexual nature" - and that Curley and Schultz also watered down Paterno's testimony.  

This evidence  rejects Corbett's claim that the AG was not involved in a "conspiracy" regarding the firing of Paterno.  

The OAG's false statements in the presentment led to the public outrage and the firing.

PSU's Role

I have written much about PSU's illogical response to the grand jury presentment and their role in the public lynching of Paterno, Spanier, and PSU. 

The evidence shows the 11/9/11 decision to remove Paterno and Spanier was purposeful and not done out of panic.  Note: The BOT's decisions and actions in response to the grand jury presentment and its aftermath also are instructive in its acceptance of the NCAA sanctions.

Frazier:  On Nov. 6th,
cautioned BOT not to
 overreact to the
grand jury report.

First, the timeline does not support panic because the BOT held a conference call on November 6 and didn't make their decisions until the 9th.  There was ample time to interview Paterno and McQueary, however, the BOT did not respond to repeated calls by Paterno (who wanted to tell his side of the story).

In addition, according to a former trustee, Ken Frazier cautioned everyone to stay calm and not overreact.  Citing his experience with grand juries, he stated that grand jury indictments should not be taken too seriously and that prosecutors can say whatever they want.  Another reason panic can be ruled out is that the BOT had five days to gather information about the incidents in question.  

They chose not to do so.

As documented by Jay Paterno's latest book, Paterno had reached out to trustees Hintz and Joyner, who refused to meet with the legendary coach.  As noted earlier, they also did not interview McQueary, who was the key witness of the case.

These decisions were not made out of panic, as there was ample time to conduct a few interviews.  Incompetency can also be ruled out, as Ken Frazier successfully navigated the Vioxx crisis at Merck.  

BOT/Corbett Probable Scenarios

There are a few possible motives behind the BOT's willingness to throw PSU, Spanier, and Paterno under the bus.  Based on analysis of the evidence, I view the following three as probable.  There are other possible scenarios  that have yet to be ruled out.

From a financial perspective, Corbett could have threatened PSU with budget cuts similar to those he attempted in 2011.  Just one year's worth of cuts, if passed by the legislature would have far exceeded the actual costs incurred by PSU from the scandal to date.  Since the firings of Paterno and Spanier, PSU's state allotment has remained level.  Is that just a coincidence or did it result from the "change" in PSU's leadership?

The Commonwealth also possibly benefited financially from the BOT throwing PSU employees under the bus.  Had PSU pushed back and put the onus of the Sandusky crimes on the failures of the child protective system, the end result could have been lawsuits against Centre County Children and Youth Services.  Lawsuits alleging CYS negligence have been filed in Lackawanna and Berks Counties, as well as and other locales.

Surma: Removed Paterno and
Spanier without a vote.
Another scenario involves personal vendettas.  In October 2010, Corbett, while in one of Beaver Stadium's suites, was overheard stating that he would eventually get Spanier fired (after seeing him with his gubernatorial opponent, Dan Onorato).  

This website provided an exclusive report on Vic Surma's vendetta against Joe Paterno.  John Surma joined the BOT in 2007 and immediately began pestering Spanier to get rid of Paterno.   He was rebuffed by the former President, who had already reached agreement with the Board that Paterno should be allowed to retire on his own and that PSU didn't want a repeat of the Bobby Bowden "firing" at Florida State.

Surma wouldn't take no for an answer and the evidence in the case indicates that he and a few other PSU trustees may have started working with Corbett as early as March or April 2011 to engineer the removals.

In the immediate aftermath of the scandal, Surma took control of the Board and orchestrated the dismissals of Spanier and Paterno without bringing  it to a vote.  On December 2nd, the Executive Committee of the Board convened to hold a vote and make it official.

How it went down
According to a former trustee, Surma suggested that Paterno be removed and asked if anyone objected.  Before anyone could speak, Corbett, via speaker phone said:

"Remember the children. Remember that little boy in the shower."

The trustee said that Corbett's words made it difficult to object, given that anyone that did would have looked like they didn't care about children.

The New York Times reported the Corbett had been working the phones with Surma leading up to the meeting. 

A third scenario involves power.  As noted by former trustee Bob Horst, the power triangle at Penn State was President Spanier, the Chairman of the PSU BOT, and Paterno.  The removal of Paterno and Spanier would cut off the two corners of the triangle leaving the BOT chair the remaining or ruling force at PSU.  

After the "execution," to maintain its power, the Board would:

1. Only nominate and select weak University presidents.  Check.

2.  Emasculate the football program to ensure a coach would not be influential in University governance matters.  Check.

From Tom Corbett's perspective, he would benefit by not having Spanier to contend with in his dealings with PSU.  The Allentown Morning Call's article stated:

Playing a critical behind-the-scenes role in the deliberations of the Penn State board of trustees, Gov. Tom Corbett helped expedite the departure of one of his most powerful critics, longtime Penn State President Graham Spanier.
Now, with Spanier out of the picture, Corbett will have a chance to put his stamp on Pennsylvania's flagship public university.
Corbett will no longer have to spar with Spanier, a fierce advocate for public higher education, over Penn State budget cuts. And, as a de facto trustee, the governor will be able to weigh in on the search for Spanier's replacement.
It is not so far-fetched to believe that Corbett and the inner circle of the BOT cooperated in the removal of Paterno (and Spanier).

Additional Evidence

After the release of the Sandusky presentment and removal of Paterno and Spanier, PSU hired Louis Freeh to conduct an "independent" investigation into the matter.  Corbett took credit for recommending Freeh to PSU and remarked that Ron Tomalis would represent the "administration" on the Special Investigations Task Force.  

I'm very pleased with Ken Frazier leading that. Ken – I've only known him a short time – but I'm very impressed with his leadership. I'm very impressed that he has put together some people, including Ron Tomalis, on behalf of the administration and also as [state] secretary of education on that team, and the selection of Louis Freeh is I think a very good one." 

Freeh's condemnation and contempt for Paterno was palpable as he presented the finding of his investigation to the media.  The press conference was a well choreographed event, where a planned "hack" of Freeh's website precluded the distribution of his entire report to the media in advance of the event.  As a result, the full report only became available before Freeh took the stags and no one had time to read the lengthy report.

Interestingly, Corbett and Frazier media statements after the release of the Freeh Report both made it a point to state the report was 267 pages long -- as if the length of the report was indicative of thoroughness and/or accuracy.  

In the past year, considerable e-mail evidence obtained through the RTK efforts of Ryan Bagwell and BIll Cluck confirmed the collaboration between the Freeh group (the client of the PSU BOT Special Investigations Task Force) and OAG investigators.

There is little question that the PSU Administration (and its agents) were collaborating with law enforcement beyond what would be expected levels of cooperation.  

Collaboration or Conspiracy?

Under the PA crimes code, "conspiracy" has to parties engaged in the commission of a crime. As such, the firing of Paterno was not a criminal act nor does it appear that anything criminal took place prior to the legendary coach being removed.  

Unethical, yes. Criminal, no.

Therefore Corbett is correct that there was no "conspiracy" between the OAG and PSU involving the firing of Paterno -- it appeared to collaboration.

However, if the collaboration between Freeh and the OAG included commissions of crimes, such as evidence tampering -- among other crimes -- in the charging of Spanier (and/or further charges against Schultz) then a conspiracy would indeed exist.


  1. Good summary and analysis Ray. One thing I would add, that if the Board (and thus Corbett) helped orchestrate the consent decree it would rise to the level of a crime. Bilking PSU, and therefore the state (money is fungible) of $60M to hide their own complicit nature would be criminal...

    1. Agree. Also heard from another fellow that Freeh's acceptance of money for his fraudulent investigation is "theft by deception." It jogged my memory that SMSS member Shari C. posted about that earlier.

  2. Great review and refresher. Thanks, Ray!

    Your discussion under Power points right to the person I've been thinking of: Cynthia Baldwin. She progressed from BoT Member to Vice-chair to Chair to PSU Counsel at key times in this saga. When will we see the heat of scrutiny being applied to Ms Baldwin?

    1. Ms. Baldwin was mentioned today. Her role in this mess was much greater than her dual representation/lack of representation of Spanier, Curley, and Schultz.

      The Baldwin hire was done so that PSU would be able to stonewall the AG investigators. Baldwin sent a proffer to the AG to (likely) elude obstruction charges. Fina's email took PSU (Baldwin) to task for not being cooperative. Emails requested in December 2010 were apparently not turned over until July 2011 (according to Moulton's investigation).

      Hard to predict a timeline as this thing unravels. Freeh and NCAA first. PSU likely next. Then OAG.