Bad Faith, Addendum 1: Freeh's Mangling of the Janitor Incident

Many people, like media blowhard Keith Olbermann and disgruntled class action lawyer, Michael Boni , are still clinging to the myth that Louis Freeh's credentials are impeccable and he conducted a legitimate investigation at Penn State.  I suspect few have ever read the full Freeh Report and are unaware of the reports glaring inaccuracies. A prime example is Freeh's mangling of the janitor's testimony, which revealed just how shoddy and lazy his PSU investigation and report really was.  

By

Ray Blehar

At his press conference on July 12, 2012, Louis Freeh called the incident witnessed by the janitor as "the most horrific rape" that was described in the Sandusky case.  

Apparently, the former FBI Director, with impeccable credentials, decided the trial verdicts were irrelevant to his press conference remarks and his report.  

Many who continue to criticize PSU would likely be surprised to learn the most incendiary charge in the case -- that McQueary had witnessed Sandusky anally raping a boy -- resulted in a not guilty verdict.   Just as importantly, there was not a single victim who credibly accused Sandusky of attempting to rape them while they were on the campus.  Obviously, if there were no credible allegations of rapes, there weren't any rape convictions.

So how did Freeh come up with his wild claim of a "horrific rape" in the janitor incident?

Simply put, Louis Freeh appears to be a pathological liar (see here also).

Facts didn't matter to Freeh nor his PSU BOT handlers.  The public relations smear of the University, likely by the Core Group of Ken Frazier, Ron Tomalis, Freeh, and Omar McNeil, became a substitute for the facts of the case.  When the McQueary incident resulted in a not guilty verdict, the alternative was to pump up the janitor incident to indict the PSU culture.  Freeh stated that PSU's reverence for football was ingrained from the top (Spanier) to the bottom (the janitors).  

Freeh's PSU investigation's found very little
 and his report is riddled with serious errors.

Freeh was able to sell the janitor incident as proof that PSU had a morally corrupt culture and that the janitors were innocent "victims" who couldn't dare fight back against the system. The media and the public fell for it. 

Few, if any, bothered to fact check Freeh's story.  If they had, they would have found that it didn't stack up against the evidence and especially not the trial testimony of Ronald Petrosky.  Freeh embellished Petrosky's testimony in at least a dozen different places in the report's account on pages 65 and 66.  

Those who believe the Freeh Report was accurate need only look at the diagram below to see how inaccurate it was in reporting the testimony of Petrosky (Janitor B).  

Anyone who sat through the Sandusky trial and heard Petrosky's testimony should have known Freeh had gotten his account of the janitor incident terribly wrong.  As I pointed out in Friday's blog, Freeh used the Sandusky grand jury presentment as his report template and he did very poorly when attempting to edit it after the trial.  This also demonstrates that the contents of a grand jury presentment often do not reflect legitimate evidence that could be presented at a trial.  In  this case, the Pennsylvania OAG wrote a very inaccurate presentment based on shaky evidence.  As a result, it tripped up America's #1 phony investigator for hire.

The first very important error Freeh made was stating that two janitors testified at the trial.  The second janitor (Janitor C), who prosecutors had lined up as the corroborating witness, never did.  Therefore, the entire account that Petrosky gave at the trial was uncorroborated hearsay that may have been improperly admitted under the excited utterance exception.  Judge Cleland overruled Sandusky's appeal on the hearsay testimony by incorrectly stating that a second janitor had testified at the trial and corroborated Petrosky's testimony (p.18).  However, the exception also requires evidence of the crime - and none was presented.

Between Freeh, Cleland, Feudale, Baldwin, and Lunsford,  the competency of judges who have been associated with Sandusky isn't looking too hot.

Next, please point your attention to number 11, where Petrosky says Janitor A (Calhoun) didn't want to report Sandusky because he was afraid "they'll get rid of us all."  This statement doesn't pass the logic test. 

Petrosky testified that Calhoun - a temporary janitor - didn't know who Sandusky was.  So if Calhoun didn't know who Sandusky was, why would he conclude that reporting Sandusky would result in them all being fired?   That makes absolutely no sense (aside from the fact it wasn't testified to by Petrosky!).

Also, Freeh's contention that a culture of reverence for the football program caused PSU employees not to report Sandusky got "stood on its head" by the timeline of the case. 

Just three months after the janitors were paralyzed by their reverence for football (or fear for their jobs), lowly graduate assistant football coach Mike McQueary witnessed Sandusky in the showers with a child and reported him to Joe Paterno.  He didn't detour to an assistant to talk it through first.  He went directly to Paterno.   After which he continued as a GA until he was hired as a full-time assistant in 2004.  

Oh, the fear. Oh, the reverence for a retired coach!

Freeh's reasonable conclusions about the janitor incident didn't square with the facts -- and certainly not the testimony provided at the Sandusky trial.  

President Barron's review of the Freeh Report
is unlikely to recognize the report's errors

Those who continue to stand by the accuracy of the Freeh Report simply don't have the knowledge of the case to identify the report's errors.    And without knowledge of the facts of the case (that weren't included in the Freeh Report), reviewing it is rather pointless.  That's why I expect little from President Barron's review.

In the end, those who stood by the Freeh Report (and Freeh) will be embarrassed when it is completely eviscerated in the Paterno v. NCAA lawsuit and in Spanier's defamation suit.
  

Next: Addendum 2: Unintended Financial Consequences of the Sandusky Scandal.

An Act of Bad Faith: The BOT's & NCAA's Railroading of Paterno & PSU

A construction of the Freeh investigation timeline and other evidence shows the NCAA didn't influence the outcome of the Freeh investigation or bluff PSU.  The inconvenient truth is that Erickson knew the NCAA had no grounds to penalize PSU, but collaborated with them to railroad Paterno and the University.

By 
Ray Blehar

The NCAA has slithered away from the Corman/McCord lawsuit with its reputation somewhat intact due to a settlement that still has PSU paying fines and also making quarterly payments to flim-flam man, George Mitchell.  Worst of all, there was no admission by the NCAA that it had overstepped.  In fact, it was quite the opposite.

The NCAA took the words "good faith" (from the settlement) out of context to boast that it had authority to punish PSU in Sandusky matter, even though they (and Rod Erickson) knew there was no basis for penalties.

Statements by Erickson, Gene Marsh, Emmert, and other NCAA officials that the Freeh Report provided the basis to punish Penn State were absolute hogwash.  We all now know that the head of the Executive Committee (EC), Ed Ray, never read the report nor did he recall the EC's early favoring of the death penalty.   Statements by the NCAA's PR Exec Bob Williams and Mark Emmert also proved that both men were clueless about the contents of the Freeh Report.  

So, the million dollar question is:  Was Erickson bluffed by Emmert's statements that the Freeh Report showed the worst case of lack of institutional control he had ever seen and that the EC's reaction to it was that they wanted blood? 

Absolutely, unequivocally, no.  

While the email of Julie Roe (Lach) mentioned that "our approach to PSU as a bluff when talking to Mark," it was clear she wasn't among the cabal at the NCAA who was collaborating with Erickson and company.  To make an analogy, she was the NCAA's equivalent of former PSU BOT member Ann Riley in terms of influence. Roe (Lach) would eventually be fired over the Miami (Fla) investigation.    According to Gene Marsh, he had expected to be dealing with Roe (Lach), but stated this was "a whole different critter" when he found himself negotiating with the top brass of the NCAA (Remy and Berst).   

In an interesting aside, Marsh was hired late and had a track record of failures at his two negotiations with the NCAA (on behalf Ohio State and Alabama).  According to Frank Guadagnino's deposition (p. 14), Marsh reached out to PSU at the urging of none other than Cynthia Baldwin.  Previously, Marsh wrote that he believed the NCAA "should leave this one alone."  Later, he would advise PSU to not risk an investigation by the Committee on Infractions.  

Are you smelling something rotten?

Erickson:  Documents confirm he knew
the NCAA didn't hold any cards.

The truth that Penn State and the NCAA so desperately want to stay hidden is that both parties knew there was no Lack of Institutional Control (LOIC) over PSU Athletics.  There were no major violations to support it.  According to documents obtained from Old Main, by January 31st, 2012 the NCAA and PSU understood that the ongoing investigation had found PSU to be very good at following the rules.  

But that didn't stop Erickson and Emmert from striking a "bad faith" agreement.

An Act of Bad Faith

Analysis of the Freeh Report, email evidence, court depositions, and other evidence paints a picture of collusion between top officials at PSU and the NCAA in railroading Paterno and the University at large.  In addition, the evidence shows that Freeh, Sporkin, and Sullivan (FSS) used its engagement letter as the investigation plan and the Office of Attorney General's Sandusky grand jury presentment as the report template for convicting PSU officials in the court of public opinion.  

In summary, it was an "act of bad faith" by all involved.  And they did it for a variety of self-serving reasons.

The PSU Board of Trustees (BOT) needed a replacement narrative to justify the firings of Paterno and Spanier.  It ensured the Freeh Report would do so by specifying the expected contents in the engagement letter with FSS.   There are other reasons for the BOT's inner circle's scapegoating of Curley, Schultz, Paterno, and Spanier, but for the sake of simplicity, the   focus will stay on justifying the firings.

Louis Freeh, who was hired with the encouragement of Governor Tom Corbett, conducted his investigation as not to undermine the Sandusky prosecution and (likely) to assist the OAG in finding more evidence against Spanier.  In doing so, the investigation ignored exculpatory evidence that would have undermined the stories of the janitors and possibly Mike McQueary. 

The investigation and report also whitewashed the failures of The Second Mile and the failures of Pennsylvania's child protection system   The latter fact "benefited" Governor Tom Corbett and the PA government -- who would have been embarrassed if the public learned of the colossal failures of the child protection system (and police) in the Sandusky case.  The failures of The Second Mile also may have exposed the OAG's lax oversight of charities.  In both cases, the state could have suffered financial loss if it had been found negligent and likely forced to establish a victim's fund.

Centre County Children and Youth Services also benefited because it may have faced lawsuits over its shameful performance in the Sandusky case -- had it been exposed by either the OAG or Freeh.  

Freeh didn't work for free.  
The NCAA got what it paid 
for in the Freeh Report.

While the NCAA (and Big Ten) were permitted to engage with the Freeh investigation -- and received substantive updates along the way -- the NCAA's guidance to FSS didn't result in any findings of wrong-doing.   According to the Freeh Report, FSS conducted just one substantive interview concerning NCAA rules after it was briefed by Julie Roe (Lach).  The result was a weak allegation that PSU's compliance staff was understaffed (p. 36). 


The NCAA obviously didn't know the first rule of "Freehdom" -- Louis Freeh doesn't work for free.  You pay your money -- you get your results.  NCAA got what it paid for -- a report that didn't mention a single NCAA violation.  

Conversely, the PSU BOT's payment of $6.5 million ensured that the investigation would go exactly as the SITF directed.  The $6.5 (and eventually $8.1 million) also likely was enough to get Freeh's and his team lie about many things related to the case.

The confirming evidence follows.

Breaking Down the Freeh Investigation

The timeline constructed from the end notes of the Freeh Report correlates quite well with the timeline previously constructed from Right-To-Know emails. Both timelines show that significant updates to the Freeh Report occurred as the PA OAG was forced to utilize (release) evidence already in its possession.  The other significant update to the Freeh Report occurred after the Sandusky trial and the not guilty verdict related to the incident reported by McQueary.

It is highly probable that PSU provided Freeh with the relevant emails and the Schultz file early in his investigation, but Freeh had to wait for the approval of the OAG to utilize them.  Governor Corbett stated Freeh was selected because he would not interfere with the ongoing prosecutions or investigations.  That, of course, would include getting clearance to use certain evidence.

Timeline of the SITF's (Freeh) Investigation

The Right-To-Know emails obtained by PSU alumni Ryan Bagwell and Bill Cluck do not include any mention of a "BOT briefing call" for Freeh to brief the trustees about his investigation plan.  He didn't need to because the engagement letter set forth the outcomes of the investigation, which were to FIND:  1) the reporting failures that occurred; 2) the causes of the failures; 3) who had knowledge of the sexual abuse allegations; and 4) how the allegations were handled by the BOT.  

The timeline of Freeh's investigation reveals he followed the SITF's instructions perfectly, with little diversion of its attention to the NCAA's guidance. 

Engagement 1. Find reporting failures (focused on Paterno and 2001 incident)

November: The 2001 Incident

Freeh began his investigation on November 23rd with an interview of Cynthia Baldwin regarding her discussion with former Senior VP of Business and Finance, Gary Schultz, about his grand jury subpoena.  On the 28th, FSS continued interviewing Baldwin about the 2001 incident.

December: Joe Paterno/PSU Football

 In December, the end notes reveal that the investigation's focus had shifted to Joe Paterno and the football program.  FSS interviewed members of the Athletic Department (AD) and football staff about Sandusky working out in the facilities (Dec 5, 7, 11);  Paterno's knowledge of "everything that was going on" (Dec 6, 19);  Paterno's (lack of) involvement in sports camps (Dec 19); and compliance with NCAA rules (Dec 19).  The Freeh team also met with an official from the Office of Student Affairs to discuss disciplinary matters pertaining to football players (Dec 12).

Engagement 2.  Find causes of the failures (focused on access to facilities)
Engagement 3.  Who had knowledge of abuse allegations (focused on police,1998 incident)

January: Sandusky's Retirement benefits, the Clery Act, and 1998

 After being briefed by the NCAA in early January, the Freeh team met with a PSU AD official on January 10th, but didn't find any evidence of lax protocols or violations.  The FSS team then moved off the subject of NCAA violations and began investigating Sandusky's retirement benefits (Jan 12), conducted interviews with police about the Clery Act (Jan 13) and Sandusky's access to Beaver Stadium (Jan 25).   On January 27th, FSS interviewed a former University Park police officer (likely Detective Ronald Schreffler) regarding the 1998 incident.  

In January, the NCAA was informed that PSU's AD compliance staff was "fastidious about rules violations."  The NCAA responded that it would "wait for Freeh Report."

SIGNIFICANCE: In January 2012, the NCAA and PSU knew the athletic department was compliant with NCAA rules and Freeh's investigation found nothing of note in its investigation from that point forward.

February: Clery Act,Sandusky Retirement, 1998

In February, FSS continued work on the Clery Act, interviewing former police chief Steven Shelow on the 1st.  The next day (Feb 2) they questioned Office of Human Resources (OHR) officials about reporting of incidents and about Sandusky's retirement.  While questioning OHR, the investigators also inquired about the 1998 incident and Curley's background.  The investigation looked into Sandusky's access privileges to the Beaver Stadium luxury suites on February 8th. On February 22nd, a retired dean was questioned about Sandusky's emeritus status, while OHR was likely questioned about background checks.

Engagement 4:  How allegations were handled by the BOT (focus on Spanier's leadership).

March: BOT Knowledge of Sandusky, PSU Culture 

On the last day of February (Feb 29) and through March, the investigation conducted numerous interviews with members of the BOT about how the Board was informed of the Sandusky investigation and about Spanier's leadership.   On March 22, the FSS team received a letter from The Second Mile's attorney explaining its knowledge of the 2001 incident. In the letter, the charity's attorney informed FSS that Curley had told the charity to "avoid publicity issues."  To be clear, the Freeh Report's lone piece of evidence about PSU avoiding bad publicity (p. 78) was based on double hearsay. 

Triponey: Reached out to Emmert
to assist in "Penn State mess."

The investigation took a brief detour to interview Vicky Triponey on March 10th to discuss her interactions with Paterno and Spanier.  According to Triponey's affidavit, she had reached out to Mark Emmert to assist with the "Penn State mess," referencing a "toxic culture."   She also stated that she was told that she would be brought in near the end "to clarify, validate or perhaps confirm what they were hearing in their other interviews."  The significance of Triponey's information was summarized in a footnote on page 65 of the Freeh Report.   The investigation still had nothing on Paterno.


At this point, the report draft was likely a repackaging of the grand jury report with embellishments about Sandusky's access and a few additional areas, like University governance, compliance with the Clery Act and other policies mixed in.  That's when the first bump in the (rail)road occurred.

The Perjury Particulars Bump in the (Rail)Road
In response to a request for perjury particulars by the attorneys for Curley and Schultz, the OAG was forced to utilize the Penn State emails (that had been turned over to the PA State Police in July 2011) to support the Commonwealth's response. The significance of using the emails was two-fold: first, it allowed Freeh to use them in his report; and second, the emails more fully exposed the role of DPW in the 1998 investigation.  

April:  Revisiting 1998 and Continued BOT Interviews.

Up until the release of the emails, Freeh had relied on the University Park police report and an interview (January 27) of a former police officer (likely Schreffler) to recount the incident.  The OAG's release of email evidence essentially forced FSS to revisit the 1998 incident.  The Freeh team performed  interviews with DPW program representative Jerry Lauro (Apr 26) and with a Centre County CYS representative (also Apr 26).  

The BOT threw Spanier  under the bus.

Interviews about the BOT's knowledge of the Sandusky investigation had been ongoing all month (Apr 5 to Apr 23).  The majority of the BOT claimed to have received knowledge of the Sandusky investigation through the May 12, 2011 briefing by Spanier and Baldwin.  A handful of trustees said they had no knowledge of the grand jury investigation until November 2011.  Most trustees recalled that Baldwin informed them it was the third or fourth grand jury to investigate Sandusky and that the incidents  didn't involve PSU. 

In summary, the BOT members dubiously claimed they were in the dark on the Sandusky matter and blamed Spanier for a lack of transparency and for not being inclusive as a leader.

May:  Investigation Wraps Up

According the end notes, only a few interviews were conducted on May 9 and 16 to answer lingering questions about the firing of Paterno.   On May 5, Frazier sent an email to Louis Freeh which confirmed the investigation was wrapping up.  An excerpt from the email follows.

Sent from my iPhone 

On May 5, 2012, at 9:52 AM, "Frazier, Kenneth C." <ken frazier@merck.com> wrote: 

I would recommend waiting a few days to see if Wick calls. If he doesn't, I'd call him 

saying that I suggested that you reach out to him based on my conversation with 

McGinn. I would also let him know ( as I told McGinn) that you guys are wrapping up 

the investigative phase. If they have something to say they should speak up now.

The Schultz File Bump in The (Rail)road
According to the Freeh Report, FSS had twice interviewed Kimberly Belcher (Jan 12 and Apr 12), who denied possessing the Schultz file.  Later that month, in response to a grand jury subpoena, Belcher testified that she turned over a copy of the file to the OAG in April 2012.  She also testified that Schultz provided the originals of the file to the OAG one day earlier. The Freeh Report lists the date of the Schultz file as 5-1-2012, confirming it was obtained after Belcher and Schultz had turned their files over to law enforcement.  

Note: OAG officials concealed the existence of the emails and the Schultz file from the public until the emails were leaked in June.  In May, the OAG changed the date of the McQueary incident from March 1, 2002 to February 9, 2001, however they did not say how the new date was determined.  

The information from the Schultz file very likely caused the Freeh Report to be significantly edited to include details from the notes and emails regarding 1998 and 2001 incidents. However it is also very likely that there was considerable debate on the risk-reward of using the handwritten notes of Schultz.  The notes from 1998 contained damaging information about CYS and DPW being told of many signs of child sexual abuse.  Emails reveal that on May 20th, Frazier, Tomalis, Freeh, and McNeil likely planned to discuss the updates to the Freeh Report and the (selective) use of information from Schultz's file.





The "you dun good" statement by Tomalis was a reference to Frazier lying to the Board about Freeh's investigation being very active and continuing into the fall.  The email between Frazier and Tomalis on May 4th showed that Frazier had lied because he expected the information to be leaked.

At the end of May, the final draft of the Freeh Report was ready, but all involved likely knew that it was light on facts.  It was very likely that the group began its public relations/smear strategy to cover for the deficiencies in the report.

June: Minimal investigation activity -- smearing begins

Little investigative activity took place in June 2012.  The end notes show the investigation circled back with a former finance officer on June 12th (likely Al Horvath) to obtain background information about VP Schultz.  

Evidence indicates that the efforts of the SITF and Freeh focused on making the public believe that honorable men like Joe Paterno and Graham Spanier had more concern for the well-being of a pedophile than the well-being of children.  They did that through leaking emails to the press.

On or about June 11th, existence of the emails was leaked to NBC news.   NBC cited "law enforcement" and "legal sources" (either of which could have been a loose reference to a Freeh team member) in its report.  NBC's report cited just the word  "humane" from the emails -- taking it out of context.  NBC's report was picked up by most papers, including the Philadelphia Inquirer, who reported that Paterno was involved in the email exchange.  The Inky's report appeared to be welcomed by SITF co-chair Ron Tomalis, who forwarded it to the Core Group of Frazier, Freeh, and McNeil.

The original reporting on the emails didn't gain traction initially because the Sandusky trial took center stage.  Interestingly, the trial had one very unexpected - and mostly unreported - result.

Last Bump in the (Rail)Road - Not Guilty, Count 7
Had the Sandusky trial gone according to plan, little changes would have been required to the draft of the Freeh Report.  However, the failure of a jury to believe McQueary's testimony about witnessing a rape likely blew a major hole in the Freeh Report's ability to condemn Paterno's actions in 2001.  The result was that Freeh retreated to using a non-specific passage in an email (of dubious provenance) to "reasonably conclude" that Paterno was solely responsible for stopping the report of the 2001 incident.  Freeh also played up the janitor incident and Sandusky's access to facilities, the latter claimed to be under the purview of Paterno, to condemn the football culture.

The media, who hadn't been paying attention to the details of the Sandusky case from the outset, persisted with the theme that football - and by extension, Paterno - was the reason Sandusky could commit crimes for so long.  A column written by Howard Bryant was embraced by Ken Frazier and likely others at PSU who had been looking to justify the firing of Paterno.



Before the month of June ended, the media returned to the story of the emails -- only with more details being released about their content.  Public opinion was turning against Paterno and Spanier, just as the SITF intended.

July:  Last minute interviews, and finalizing the report

Although Graham Spanier and his legal team had requested meeting with Freeh's team since the outset of the investigation, it didn' take place until July 6th -- about one week before the report was published.   While FSS incorporated some of Spanier's information into the chapters on 1998 (Ch. 2), 2001 (Ch. 4), and the BOT (Ch. 5), it is important to note that the investigators re-interviewed Cynthia Baldwin on July 9th.  The purpose of the interview was to rebut Spanier's statement that he didn't have knowledge of the 1998 incident. 

Freeh Report missed badly on the
testimony of janitor, Buck Petrosky

The other significant interview allegedly took place on July 2nd with janitor Ronald "Buck" Petrosky. Petrosky allegedly told Freeh's team that "football runs this place" and "going up against Paterno would be like "going up against the President of the United States."  However, it is highly probable that Petrosky wasn't interviewed at all.

EVIDENCE:  Pages 65 and 66 of the Freeh Report purport to be Petrosky's testimony at the trial, but there are at least eleven statements included on those pages that were not part of his testimony. In conclusion, it is almost certain that Freeh used the grand jury report to fill in the information and fabricated the quotes.   

Note: The Freeh Report also attributed direct quotes from Mike McQueary (p.67), who was not interviewed, to an interview on March 1, 2012. 

CONCLUSION: No NCAA Violations, No LOIC

The Freeh investigation ended without finding any more evidence of NCAA violations than it had in January.  In short, the NCAA had nothing to hang its hat (or cattle) on. The only NCAA related finding in the Freeh Report was an unsupported assertion that PSU's NCAA compliance staff was understaffed.

Both parties knew (from substantive updates during the investigation) that the Freeh Report would not include information to justify the NCAA penalizing PSU.   Instead, a media campaign would be used to prop up the Freeh Report.

PSU's PR Campaign "Justified" NCAA Sanctions

The inner circle had been working on the public lynching of Paterno, Spanier, and the football program all along.  As noted in a previous post, the outline for the NCAA Consent Decree (CD) was consistent with the key points of Erickson's five point promise.  

The CD was not a cram down...  

..it was the BOT inner circle handing a gun to the NCAA for the execution of the legacy of Paterno and to give PSU football the virtual death penalty (via the athlete transfer option).  The NCAA, who had a reputation as a weak enforcer, had no qualms about playing the heavy.   As part of the deal, the NCAA agreed to mention the death penalty threat and give Peetz and Erickson a pat on the back for cleaning up PSU when gave its press release on the CD.  

Freeh: made many false 
statements during presser

PSU's well crafted media campaign gave "legs" to the Freeh Report.   It started by allowing Freeh to conduct a grand standing press conference where he made statements that were not supported by any evidence (in Freeh Report or anywhere else).  The media and the public learned all they needed to know about scandal by watching "Freeh TV."  

No one in the media fact checked or disputed any of Freeh's statements.

Here is a sampling of false statements made by Freeh at his presser:

20:40- “the evidence clearly shows, in our view, an active agreement to conceal”

22:20 -”the rapes of these boys occurred in the Lasch Building”

26:20 – “the reasonable conclusion that we make is that all four individuals, that I’ve mentioned including Mr. Paterno made a decision – made a decision to actively conceal knowledge in the events of February 2001. I can’t parse between them, degrees of responsibility - what’s significant and shocking is that the four of them, the four most powerful people at Penn State University made a decision to conceal this information.”

30:08 – “Well we know when Mr. Curley speaks to the Second Mile he uses the same word, that they were worried about Sandusky showering with a boy because of bad publicity. So this 
notion of bad publicity, which is really disclosure, opening, and reporting, is a pervasive concern and fear by those running the university.”

30:55 - “There’s several e-mails – contemporaneous e-mails – in 1998, which we found by the 
way, which shows he’s (Paterno) clearly following the case. He’s clearly following the 1998 
investigation.”

33:08 - “The janitors, that’s the tone on the bottom. Ok. These are the employees of Penn 
Stare who clean the locker rooms in the Lasch building where young boys are being raped. They witness, what is probably, in the report, the most horrific rape, that’s described.”

36:20 – “He (Paterno) as someone once said, made perhaps the worst mistake of his life. We’re not singling him out. We’re putting him in a category of four other people who are the four 
major leaders of Penn State….He was an integral part of the active decision to conceal.”

The press ran with those soundbites and they became a substitute for the lack of evidence in the Freeh Report. 

PSU and the NCAA Respond to Freeh Press Conference

PSU's Response

Frazier: Praised Freeh investigation and
emphatically condemned PSU officials

According to the deposition of Frank Guadagnino (pages 18 and 19), a small group including Ken Frazier, Karen Peetz, Rod Erickson, Guadagnino, Tom Poole, and Richard Edelman met to review the Freeh Report and craft PSU's response.  The cabal who would go on to inflict more damage on PSU than Sandusky, gave the University the death blow.

Ken Frazier praised the Freeh Report for "following the facts" and for being "thorough and comprehensive." Frazier also emphatically condemned  Paterno, Spanier, Curley, and Schultz for their alleged failures.  Peetz piled on, stating Paterno's 61 years of service were "marred."  Erickson's pledge to implement all of the recommendations in the Freeh Report (just as he said he would in his November 2011 five point promise), left little doubt that PSU had totally accepted the Freeh Report.

 In the public's eyes, PSU's press conference confirmed the Freeh Report.  Dissenting views  were given no credence by the PSU administration or the media.

Two days after the press conference, Frazier emailed Peetz to suggest disbanding the SITF. It's mission was accomplished -- it had justified the firings of Paterno and Spanier by propping up the Freeh Report.

NCAA Response

The NCAA's response to the Freeh report was originally very cautious, stating that it would carefully review it and were awaiting PSU's response to the four questions in its November 17 letter to Erickson. 

"Like everyone else, we are reviewing the final report for the first time today. As President Emmert wrote in his November 17th letter to Penn State President Rodney Erickson and reiterated this week, the university has four key questions, concerning compliance with institutional control and ethics policies, to which it now needs to respond. Penn State's response to the letter will inform our next steps, including whether or not to take further action. We expect Penn State's continued cooperation in our examination of these issues."

PSU Substitutes Freeh Report & Pleads Guilty to LOIC

In November 2011, then PSU General Counsel Cynthia Baldwin was drafting a response to the aforementioned letter, but was told to stand down by the SITF.  Erickson and Baldwin were told that the response should wait for the outcome of its (Freeh's) investigation.

The deposition of Rod Erickson revealed that after the release of the Freeh Report, it expected to respond to the NCAA's four questions by early August 2012.   On July 17, 2012, Erickson made a statement that PSU was crafting a response to the four questions and then would "negotiate what would be appropriate sanctions."   

Erickson was lying about those two things (and likely many others).

An email dated July 18th from Gene Marsh indicated that penalties were already proposed by the NCAA as early as July 16th or 17th.   According to NCAA Counsel Don Remy, Erickson told the NCAA that PSU had accepted the Freeh Report and that the report contained evidence of a LOIC.  

Erickson's deposition confirmed Remy's position that it was the former PSU President who determined the Freeh Report constituted a LOIC.  Under questioning, Erickson stated he was familiar with the concept of a LOIC from reading sports pages and that PSU was in violation.  He then spun the story to state that it was the NCAA (Emmert) concluding it was the worst case of a lack of institutional control and that the University presidents "wanted blood."   

Contrary to the statements of PSU and Erickson, they were not bluffed and the NCAA wasn't holding any cards.   


Ed Ray's deposition and emails indicated that the talk about the NCAA EC favoring the death penalty was not true.  As Ray said, "if you told me the vote was 19-2 against, I wouldn't have been surprised."  

The truth as that the PSU BOT Executive Committee pushed the NCAA to play up the death penalty scenario and also asked the NCAA to give them props for improving governance and removing the former leadership.


The excerpt below is from an email exchange between Don Remy and Ed Ray, in which Remy explained how PSU asked the NCAA to play up the death penalty and its improvements in governance.   

The CD came down hard on Paterno, Spanier, and the Athletic Program and caused irreparable harm to the University's reputation.  By design of PSU, the CD penalties didn't inflict direct financial damage to PSU.  Collateral damage would be another story.

PSU Athletics Pays The Price

Evidence uncovered during my investigation revealed that Erickson was quite well versed in the financial affairs of both the University and the Milton Hershey Medical Center.   While he was a puppet of the inner circle, he was no dummy when it came to finances and the penalties bear that out.

PSU Athletics will bear the financial burden
 of the scandal for the next 35 years. 

Under PSU's plan, the $60 million in fines (and the subsequent payment of claims related to the Sandusky incident) wouldn't cost the University anything.  The fines, originally expected to come from football reserves,  would instead be paid by the Athletic Department through an interest bearing loan.  It is estimated that the University will earn around $44 million in interest over the life of the loan -- while the football program is saddled with the debt for 35 years.   That of course, is on top of vacation of wins, scholarship reductions, bowl bans, probation, a phony Athletic Integrity Agreement, and confiscation of bowl money by the thugs in suits who run the Big Ten.  

The litigation expenses for University officials (Curley, Schultz, Spanier, and Baldwin) are covered through directors and officers (D&O) liability insurance.  Additionally, the Erickson mistakenly assumed that the payoffs to the Sandusky claimants would be covered by its insurance policies.  The insurer pushed back, stating PSU's policies didn't cover abuse and molestation incidents. PSU sued and ironically, count 4 is "BAD FAITH."  Talk about irony. Litigation in that case is expected to begin in March 2015.

In late 2012 through 2013, Erickson and the inner circle must have believed it got a pretty good deal for the money it paid Freeh.  

It had blamed Paterno, Spanier, PSU Athletics, and the "football culture" for Sandusky's crimes, got the NCAA to gratuitously pile on, absolved themselves of any real responsibility or accountability, kept control of the University, feigned concern for child abuse victims, and won the support of the media and the public.  

 All for about $8 million. 

Call it a railroading.

Call it a framing.

Call it what it was...an act of bad faith by the BOT inner circle and the NCAA.

Steven Fink: 409, But No Joy

• As anyone who has read my most recent book, Crisis Communications, or followed my writings about the Penn State/Jerry Sandusky scandal elsewhere, or my public statements in numerous speeches and national media interviews can attest, I have long championed the reinstatement of the 111 vacated wins stripped from former Penn State football coach Joe Paterno’s record. The actual line I used many times was succinct: Explain history, don’t rewrite it. I pointed out that vacating those wins was purely a vindictive and punitive act by the NCAA.

  
  

  So, why aren’t I cheering the announcement that the NCAA and the Penn State board of trustees had agreed on a settlement (of sorts) that Paterno’s vacated wins would be reinstated and the plaintiffs (two state officials, not Penn State) would drop this portion of a precedent-setting lawsuit?

  
  

  Because this act settles nothing. If anything, it further obfuscates the heart of the matter. The still naïve Penn State board almost trampled each other in a stampede to vote their unanimous approval for this deal. This is exactly the same jump-on-the-bandwagon-mentality that got the school into this mess in the first place. This board is the gang that couldn’t shoot straight, writ large. 

  One of the purposes of the litigation was to expose the NCAA and its power grab for what it was. The NCAA sanctions – the infamous consent decree – never should have happened because the issues under review were criminal matters, not NCAA infractions. The NCAA had no jurisdiction, yet they grabbed it anyway, while the board was too numb to see what was happening. The court case, in part, was designed to prove that and, in so doing, have the court vacate the entire consent decree because the sports authority overstepped its bounds by a wide margin when it forced it down Penn State’s throat. There was every indication that Pennsylvania Commonwealth Court Judge Ann Covey was heading down that path. Every time the NCAA filed a motion to dismiss the case for various reasons, Judge Covey said this case is going forward. She was due to rule on the legality of the consent decree. Stated more succinctly, she was going to rule whether or not the NCAA had the authority to act in the authoritarian manner it did. And the absolutely last thing the NCAA wanted was to have anyone challenge — or worse, overturn — its authority.

  
  

  But with this “settlement,” that examination doesn’t appear likely to happen.

  There is a world of difference between having Joe Paterno’s win record restored because the NCAA never should have imposed that measure in the first place, and a “settlement” agreement. The tally may come up to the same impressive number of wins – 409 – but the methodology makes all the difference. And because of a “settlement,” the stench of wrong doing still hangs heavily in the Nittany Lion air.

  In the press release the NCAA issued immediately after this agreement, NCAA board member Kirk Schulz, Kansas State University president, boasted, “Today’s agreement with Penn State reaffirms our authority to act.”

  But Pennsylvania state senator Jake Corman, one of the lead plaintiffs, had a different – and woefully naïve – perspective. “This is a win,” said Corman.  “The NCAA has surrendered. The agreement we have reached represents a complete victory in the issue at hand – the consent decree is voided.… This validates our position that the rush to judgment against the Penn State Community was wrong….” 

  It does no such thing, Sen. Corman. It proves nothing, except how woefully naïve the board of trustees still remains. The board still does not understand any of the basic precepts of crisis management and crisis communications.

  
  

  Corman also said, “As we progressed through the case, it was clear that the consent decree could not stand up to the legal challenge.” I agree, which is why I think a settlement without a statement from the NCAA admitting that the consent decree never should have been imposed was another example of otherwise well-intended people not understanding the power of crisis communications. Once again, I think the NCAA played Penn State and the plaintiffs in this case like the proverbial violin. That’s why you can have blowhards like Schulz claiming complete victory. Schulz is correct: this is a victory for the NCAA. The Penn State board of trustees was once again hoodwinked by the smarter, slicker NCAA.

  
  

  The litigation was supposed to address the legality (or lack thereof) of the consent decree, of which the vacating of legitimate football victories was only a part. From the outset, the NCAA tried every trick up its sleeve to get the case thrown out, but they met their match in Judge Covey, who was determined to hear this case. At issue was nothing less than the NCAA’s testicles: Did the NCAA have the authority to impose the sort of draconian sanctions, especially given all the highly questionable goings-on behind the scenes to force Penn State into voluntarily accepting the sanctions? One high-ranking NCAA miscreant boasted in an email to chief thug, Mark Emmert, that they “bluffed” Penn State into accepting sanctions, fully believing that they didn’t have the authority to act.

  If, as Corman said, it was true that the “consent decree could not stand up to the legal challenge,” why on earth cave in on the case now? This should be the time to double down and press forward.

  This was a “back room” deal negotiated by a small group of the entrenched members of the BOT and the upper echelons of the NCAA. Only as a result of these legal proceedings did documents and emails come to light that revealed the NCAA’s unscrupulous methods in pressuring Penn State into accepting the consent decree. I have to wonder aloud what the NCAA promised – or threatened – to get to this “settlement.” It is important to remember that the entrenched members of the BOT were in lockstep with the NCAA all along. They and the university were never plaintiffs in this matter. The settlement vote of the board was unanimous, but I am surprised that the nine alumni members of the board went along with the vote. They perceived this as a victory; it was nothing of the sort.

  There will still be a stench attached to the number of wins. Those critics – and they are out there, believe me – who disagree with the reinstatement of Paterno’s wins will never acknowledge that they should be counted. They have already started beating the drum that the only reason the NCAA reinstated Paterno’s victories was to try to sweep the issue under the carpet before the just concluded NCAA annual meeting and convention.

  
  

  Yes, I wanted the vacated wins to be reinstated, but not like this. This settles nothing, except how inept the Penn State board continues to be.

  
  

  • JANUARY 19, 2015 (9:41 AM)