Wednesday, March 18

Spanier Complaint Details Freeh's Lies, Strikes Back at Frazier, Peetz, & Masser

Spanier's complaint not only exposed Freeh's lies, but seeks to expose his phony investigation racket.  It also struck back at PSU officials for parroting Freeh's groundless and defamatory findings -- in clear violation of Spanier's separation agreement.

March 18, 2015
Contact: Libby Locke
Telephone: 202-628-7400

Former Penn State President Graham Spanier Files Defamation Complaint Against Louis Freeh

Suit asserts Freeh’s $8 million “Report” was a media-driven product that disregarded evidence and reached false and defamatory conclusions regarding Dr. Spanier

STATE COLLEGE, PENNSYLVANIA – Dr. Graham Spanier, former President of Penn State University, filed a 140-page defamation complaint today against former FBI director Louis Freeh and his law firm, Freeh Sporkin & Sullivan LLP, in the Court of Common Pleas in Centre County, Pennsylvania. The case centers on false and defamatory statements made in the “Freeh Report,” which was commissioned by Penn State University’s Board of Trustees in the wake of the Jerry Sandusky scandal.

In the filing, Dr. Spanier alleges that Freeh and his law firm knowingly and maliciously published false and defamatory statements about him in the Freeh Report, causing significant damage to Dr. Spanier’s reputation – harm which was compounded by Freeh’s promotion of the report in a nationally televised press conference. The complaint alleges that Freeh recklessly disregarded evidence in the final report, including the results of a comprehensive federal investigation that vindicated Dr. Spanier. The complaint also alleges that the 267-page Freeh Report was virtually complete before Freeh ever interviewed Dr. Spanier, which occurred only four business days before the report was issued.

“Dr. Spanier’s complaint demonstrates that the Freeh Report was little more than a public relations product that expediently scapegoated a few individuals and was designed to knock the controversy out of the news as quickly as possible,” said Libby Locke, attorney for Dr. Spanier. “We intend to demonstrate in this suit that through misdirection and strategic omissions, the Freeh Report intentionally reached the false and defamatory conclusion that Dr. Spanier had knowledge of information and events that he did not.”

In the suit, Dr. Spanier seeks to reclaim his reputation and to establish Freeh’s liability for the substantial harm that Freeh and his law firm have caused. Dr. Spanier is asking a jury to award compensatory and punitive damages for the reputational and economic harm caused by Freeh’s defamatory statements.

Spanier’s complaint also brings claims for multiple breaches of contract by Penn State, including the University’s efforts to publicize the Freeh Report, disparaging statements about Dr. Spanier by certain members of the University’s Board of Trustees, and other breaches of Dr. Spanier’s separation agreement. The complaint also includes a count for tortious interference of business relations against Freeh Group International Solutions, LLC, Freeh’s consulting firm, for interfering with Dr. Spanier’s contracts to perform national security work for the federal government.

“We will show that the predetermined findings of the Freeh investigation were not supported by evidence or fact,” said Locke. “As a result, Dr. Spanier’s reputation was severely tarnished. He is filing this complaint today to prove that Freeh’s conclusions are false and defamatory and to restore the reputations of those who were falsely targeted by Freeh.”

Dr. Spanier is optimistic that this lawsuit also will shine a light on Freeh’s lucrative business model of purported “investigative reports” for his clients embroiled in controversy. In the case of Dr. Spanier, the Penn State Board of Trustees needed Freeh to assign blame for Sandusky’s behavior and to justify the hasty personnel decisions made in the aftermath of the Sandusky scandal. The Freeh Report falsely blamed Dr. Spanier, other University officials, and Coach Joe Paterno in a misguided effort to enable the University to compartmentalize responsibility for Sandusky’s conduct and to bring closure to the scandal. 

The lawsuit is Docket Number 2013-2707.

Further information about the lawsuit may be found here:  

Tuesday, March 10

Analysis: Evidence Rules Out PSU Cover-Up in 2001

Police and OAG investigators interviewed 67 former and/or current Centre County CYS employees -- but none were presented as grand jury witnesses regarding the 2001 case.  That is one of many pieces of evidence that demonstrate the weakness of the Commonwealth's case.  

Ray Blehar

The existing media scenario and the view of law enforcement is one and the same -- PSU officials conspired to cover-up Sandusky's crimes to protect the school's and the football program's reputation.   

The evidence, however, tells a very different story.  

When the evidence for and against a cover-up is weighed, the evidence stacks up heavily against the existing/accepted scenario.

Evidence For 
1. Mike McQueary testified that he conveyed to PSU officials "that it was a in a very bad sexual act, a molestation act with a minor"
2. Under the 2007 law,  Curley, Schultz, and Spanier were required to report the incident to the authorities because they were "school employees."
3.  No records exist to verify that Penn State made a report of the incident in 2001.
4.  An unauthenticated email covering the period on February 25-27, 2001, suggests (but not conclusively) that a report was not made to child welfare authorities in 2001.
5.  Former University Park police chief Tom Harmon was the only witness (with first hand knowledge) to testify that no report was made to the police about the 2001 incident.

Evidence Against
McQueary's Report
1.  McQueary testified that he did not use any explicitly sexual language with any of the PSU officials and, in fact, said he could not remember the exact words he used.  McQueary testified that the men "definitely received from me that it was sexual." (July 29, 2013 hearing, page 29)
2.  There are not corroborating witnesses for McQueary's statements to Curley and Schultz.
3.  Other individuals who McQueary informed about the incident on February 9th, 2001 did not advise him to make a report to the police and/or child welfare.  Those individuals also did not make a report.

The Law
4. Under the child abuse reporting statute in 2001, no Penn State officials were among the enumerated individuals who were mandated to report child abuse.  
5. The statute's definition of a student (under section 6303) was  "[a]n individual enrolled in a public or private school, intermediate unit or area vocational-technical school who is under 18 years of age." The statute did not apply to colleges and universities in 2001.

Child Abuse Reports/Records
6. Under Pennsylvania law, there is no requirement for reporters of child abuse to maintain a record of the report.  
7. In 2001, local child welfare authorities were not required to report General Protective Services complaints to the State-wide database.  Note: Required to be included as of July 1, 2014.
8. Under the Public Welfare Code provision for General Protective Services, local child welfare authorities have the discretion to prioritize and investigate complaints based on a risk assessment of the alleged abuse report.   
9.  Centre County Children and Youth Services (CC CYS) assisted in the 1998 investigation of Sandusky and was aware the investigation did not result in an abuse finding.  
10.  Records of investigations of unfounded complaints are expunged upon notification by ChildLine.

History of Penn State's Reports of Sandusky's Behavior
11.  PSU cooperated fully with a 1998 investigation of then active assistant football coach, Jerry Sandusky.
12.  In 2001, PSU Athletic Director Timothy Curley reported (then-retired) Sandusky's shower incident outside of the University his employer, The Second Mile.
13. There is no evidence that PSU officials were aware of any inappropriate conduct by Sandusky with children after February 9, 2001.  
14.  PSU officials openly communicated about the 1998 and 2001 incidents over email and courtesy copied support staff on some of the communications.
15.  PSU Senior Vice-President of Business and Finance, Gary Schultz, reported his knowledge of the 2001 incident to the University's legal counsel, Wendell Courtney.
16.  According to the grand jury presentment and other court proceedings, Schultz recalled that a report of the 2001 incident was made to local child welfare authorities (i.e., CC CYS).
17.  According to an email (page 84 of Freeh Report) from Wendell Courtney, he recalled that in 2001 "someone...contacted Children and Youth Services to advise of the situation."

Lack of Corroborating Witnesses/Witness Credibility
18.  According to the Moulton Report (page 156), the Director of CC CYS testified at the Sandusky grand jury on March 10, 2011, however her testimony did not address the 2001 incident.
19.  According to the Moulton Report's timeline (pages 142 to 166) none of the 66 former and/or current employees of CC CYS interviewed by the police and/or general investigators  were presented as grand jury witnesses about the 2001 incident. 
20.  Prosecution witness, former University Park police chief Tom Harmon testified that he purposely mislabeled the 1998 police report of the Sandusky investigation so that the press would not be able to discover it in the police logs.
21. The University Park police under Harmon's direction had no qualms about arresting football players and properly reporting the arrests as such in the police logs.
22. Harmon was formerly a neighbor of Sandusky's and attended the same church.
23. Harmon was a mandated reporter of child abuse in 2001 and he could have been charged with failure to report child abuse if he admitted knowledge of the 2001 incident.
24. On the Monday after the incident, Harmon emailed Schultz to confirm that a report of the 1998 incident existed in the imaged archives.  Harmon testified that Schultz didn't ask him about the file nor did he recall giving the file to Schultz.

The numbers don't lie.  


Based on the evidence on the public record to date, it will be extremely difficult, if not impossible, for the Commonwealth to meet the standard of proof beyond a reasonable doubt for its allegation of a failure to report and a cover-up by PSU officials.

There is reasonable doubt at every turn (without introducing more doubt based on the actions an inactions of The Second Mile).

Note: This is a companion post, titled "What Are They Hiding?"  that will examine the possible reasons why Commonwealth officials and the Board of Trustees pinned the blame on PSU officials for enabling Sandusky's crimes.

Wednesday, March 4

Bad Faith Addendum 3: Underestimating Penn Staters

The BOT Inner Circle pulled out its "playbook" to make the decisions in the aftermath of the Sandusky scandal and expected Penn Staters to just "move forward."

Ray Blehar

The PSU Board of Trustees Inner Circle's beliefs in their absolute authority and Solomon-like wisdom were exceeded only by their underestimation of the people they were trying to deceive. The Inner Circle thought that its decisions would be accepted by (what they believed) was a largely unsuspecting and incurious Penn State community.

It didn't work out that way.

In the aftermath of the Sandusky scandal, nearly every move that they made was questioned, if not flatly rejected, by the “engaged” alumni.  The list of bad decisions and underhanded moves the Inner Circle are too numerous to cover in a single blogpost, therefore the focus will be on the moves that resulted in the punishments related to the Freeh Report and NCAA Consent Decree.  To wit:

-- John Surma's explanation ("best long-term interest of the University") for removing Paterno on 11-9-11 was flatly rejected;

-- The selection of trustees Ken Frazier and Ron Tomalis to lead the Special Investigations Task Force (SITF) and their selection of Louis Freeh was viewed with skepticism;

-- Karen Peetz's, Ken Frazier's, and Rod Erickson's acceptance and praise of the Freeh Report on July 12, 2012 were met with rebuttals from numerous alumni;

-- The honesty of Erickson's and the BOT Executive Committee's decision to accept the NCAA sanctions as an alternative to the Death Penalty was also questioned by many (hat tip, Ed Ray); and,

-- The Board's current intransigence on reviewing the accuracy and completeness Freeh Report is also viewed (by those with functioning brains) as being in conflict with the best interests of the University.

The common thread among these decisions was that they were made rapidly by a small group of trustees who ignored the obvious conflicts of interest at each turn.  They put their individual interests ahead of the University's and the public's interest.

As history shows, that was nothing new.

The Inner Circle's "Playbook"

It should come as no surprise that the Inner Circle (and as a result, the full Board) has been making decisions in a closed environment for quite some time. Joe Paterno's 1983 address to the BOT hinted at the deficiencies of the BOT's interactions with the University community.

"We need an environment of dissent and freedom of speech and freedom to express new and controversial ideas. Basically, this Board is in a lot of ways reactionary because you are more conservative than anything else. That is not a criticism of you as individuals, but I think that’s a fair criticism of The Pennsylvania State University Board of Trustees for the 33 years that I have known them going back to Jim Milholland who was acting Chairman and President when I first came."

The first statement that the Board operated in a controversy free environment was quite true. From the time frame of Joe's speech to the Sandusky scandal, very few decisions by the BOT were questioned. But a few were and those exceptions involved the real estate/construction deals for the Villages at Penn State and Circleville Farm.

The former went forward, the latter did not.  

The Circleville project went off the rails when the word leaked about a no bid sale and that the beneficiaries were PSU philanthropists and business partners Bill Schreyer and Robert Poole. Schreyer served on the BOT from 1986 to 1998, including two terms as President. He was an emeritus trustee at the time of the project. Poole was a distinguished alumni and a substantial donor to PSU who had many existing contracts with the University. The dissention over the conflicts of interest in the deal was reported in the local papers. The Circleville Farm project didn't get off the ground. 

In the first instance, then newly minted President Graham Spanier was uncomfortable with the closeness of the Trustees'  vote on the Villages and asked the Board to table the decision and conduct another vote two months later -- with it eventually passing.  But there was still controversy.  All of the competition dropped out, leaving Bill Schreyer, Robert Poole, Joe Paterno, and Phil Seig as 50% owners. One writer opined that Spanier was "hired as a front man for the Old Boy network."  The column was titled "Will Piggy Trustees Give Away the Farm?"

The Inner Circle's likely take away from the Circleville Farm development issue was to take swift, decisive action before there is any real opportunity for debate. Openness and transparency was not an option. According to a former trustee, later construction contracts were not brought to the attention of to the full board -- let alone voted on.

When Sandusky charges became public, the Inner Circle pulled out the playbook and went to work.

But things didn't go exactly according to plans.

Sandusky Charges Released Early
According to multiple sources, the Sandusky charges were not supposed to be announced until the week of November 7th. Governor Corbett booked a block of rooms at the Nittany Lion Inn and told the University he would be attending the BOT meeting scheduled for Friday, November 11th and the Nebraska game on the 12th. He planned to be on campus when the charges were announced -- and likely personally commandeer the ouster of his nemesis, former PSU President, Graham Spanier.

The plan went off the rails when Centre County District Magistrate Leslie Dutchcot signed off on the charges and then released on the afternoon of November 4th. The charges temporarily were taken down, but then put back up on Pennsylvania's Unified Judicial System web-site that afternoon. The next morning the Pennsylvania Attorney General's office issued a press release that contained a link to the (now largely discredited) Sandusky grand jury presentment.

According to the New York TimesGovernor Corbett began working the phones with Surma and other Board members immediately after the presentment was leaked.  Rather than Corbett being on campus to lead the ousters, it was in Surma’s hands.  Moving swiftly was of the essence because the dynamics of the pending decisions were very different. The removals had to be accomplished before the “other side” of the story got out.

Penn Staters Engaged
With extensive media reporting following the release of the presentment, the public had access to a great deal of information that could underpin any future Board decisions about the case. PSU alumni and supporters had ample time to read through the presentment and do their own research about the case. Social media and message board conversations dissected the laws and practically everything else mentioned in the presentment. Many quickly came to the conclusion that something was not quite right.

PSU's Athletic Director, Tim Curley reported Sandusky's behavior in 2002 (sic) to The Second Mile (TSM) charity's Executive Director, Dr. Jack Raykovitz. According to the presentment, neither PSU nor TSM officials contacted the police or child welfare. The fact that only PSU officials faced failure to report child abuse charges was inexplicable. Red flag number one.

Former AG Kelly's factually challenged November 5th press release implied that PSU's lack of action enabled Sandusky's crime spree. However, anyone who mapped out the timeline of crimes in the presentment knew that no crimes occurred on campus after Spanier and PSU officials imposed the "unenforceable ban" on Sandusky. Red flag number two.

The presentment also identified the relevant child abuse reporting statute for which Curley and Schultz were charged. Anyone who bothered to do the research learned that the reporting requirements were not applicable to Curley and Schultz. The men had been falsely charged, confirming then President Spanier's statement that the charges were "groundless." Red flag number three.

Surely, if Penn Staters recognized the controversial issues with the presentment, the Board would do the same to defend the University.

But it was not to be.

The Lynching

The media, led by the Harrisburg Patriot News, was running with story-line written in Linda Kelly's presentment. Fact checking, legal research, and logic wasn't considered. The story of Penn State covering up for a child molester would certainly sell more papers than what the law, evidence, and logic revealed to have occurred in 2002 (sic).

Focusing on logic, if Sandusky had been a Boy Scout leader and the exact same circumstances occurred, this wouldn't have been a story about a Penn State cover-up. Under that scenario, Curley's report to the "Boy Scout Council" would have been all the evidence anyone needed to hear to understand it was the "Boy Scouts" who did nothing to stop Sandusky.

Logic was dismissed in favor of a better news story. A story about an unknown local charity covering for a pedophile in its midst isn't national news.

The Patriot News knew that.
On Tuesday, November 8th, the Harrisburg Patriot News ran a front page op-ed that blurred opinion and facts. The PN editorial board went along with Kelly's presentment and inferred that Paterno and Spanier could have prevented all of Sandusky's crimes. Citing alleged moral failures, the op-ed called for the firing of Spanier and the retirement of Paterno at the season's end.

Information had also leaked to the press that the Board was deliberating the future of Paterno. According to a source close to the BOT, they were split on the decision. A number of trustees urged that no decisions be made until more facts were gathered. Others wanted to act quickly and fire Paterno.

The announcement of the Special Committee to investigate the matter appeared too many that cooler heads had prevailed and more facts would be gathered before making a decision.

That didn't happen.

Hatchet-Man Surma Was Unconvincing 

Surma: No credible reasons to justify
the removals of Spanier & Paterno
It was no accident that Surma was the front man at the Wednesday, November 9th press conference. On Tuesday morning, Steve Garban handed over the controls to the BOT to the US Steel CEO. Surma immediately shut down all communications emanating from the University.

The media was put in sole control of the narrative and were baying for Paterno's ouster by Wednesday afternoon.

Surma had been pushing for Paterno's removal since joining the BOT in 2007. According to email evidence, one of Surma's motivations appeared to stem from his brother Victor's falling out with Paterno.

Surma and a small group of trustees, including Governor Corbett and Paul Suhey, took advantage of the Sandusky crisis to oust Paterno and Spanier.

On November 9th, 2011, the removals were engineered without even holding a vote. Corbett stifled any discussion of the issue of Paterno's removal by commenting "remember the children." As the board sat in silence, Surma considered the lack of discussion to be unanimous agreement.

After the "unanimously" reached decision, it was Surma's job to utter those few statements that would convince the alumni and others to move forward.

"In consideration of all the facts and the difficulties that we are encountering during this time, it was the trustees' view that it was in the best interest, long-term interests of our university to make that change."

"Well, these decisions are never easy in any walk of life. And this one for many reasons, including those that you described, was difficult, but again, in the unanimous view of the trustees, was necessary in the long-term interests of the university and the difficult problems we find... "

"Our view is a more -- larger view of what was necessary to move the university in the right direction."

"As I said, these are judgments and decisions and balances that boards have to make with thoughtful deliberation. In our view, things had reached a point where a change was necessary and we thought in the best long-term interest of the university."

The questions kept coming. The former US Steel CEO attempted to escape the barrage by saying that more answers would come on Friday.

"Our view is a more -- larger view of what was necessary to move the university in the right direction.  The specific aspects of these terrible activities that occurred and terrible damage that was done really remain to be established by whatever law enforcement investigations are yet under way, as well as the investigation by our own Board of Trustees' special committee that we announced recently and we will provided more details on, on Friday."

Surma's most astonishing statement, however, had to be at the beginning when he stated the board did little to nothing in terms of preparation for their decision.

SURMA: The board deliberative process is, as it implies, a process that requires some time. There was information that we sought, although we don't know anything more about the actual details than the grand jury report and whatever you all write.

We were working through the not entirely consistent processes of wanting to act swiftly and decisively, but also to be thorough and fair. And that resulted in these actions tonight.

Underestimating Penn Staters:  Apparently, the Board believed that sending out the CEO of US Steel to make general statements that the removal Paterno was in "the best long-term interest of the University" would be good enough.  The Inner Circle also had to believe Penn Staters were extremely gullible to believe that in the time from the release of the charges to the removals, that no legal review was done.  It also made no sense that the Board took the presentment at face value and did not verify/validate the information about the 2002 (sic) incident by speaking with Paterno and McQueary.   Simply put, the actions taken without any substantial effort to do additional research and fact-finding didn't fit with the fact that many on the board were C-level executives and legal experts who obviously knew better.  This was not a panicked response -- it was purposeful.

More answers were needed. 

Friday's Non-Answers Lead to More Mistrust

Frazier:  Descoped Freeh investigation to
help cover up DPW and TSM failures?
On Friday, November 11th, instead of the answers they expected, Penn Staters received word that the internal investigation into the Sandusky matter would be led by Merck cover-up artist Ken Frazier and the PA Department of Education's Secretary (and future ghost employee) Ron Tomalis.

According to then Board chair, Steve Garban, the special committee would include a large portion of the 32-member trustee’s board, along with a number of Penn State students, employees and alumni. 

Garban reiterated the board's earlier statements that the special committee's work will not be limited in scope and would "undertake a full and complete investigation of the circumstances that gave rise to the grand-jury report."

Frazier added that the committee would do "everything in our power" and deliver "the best indication that we've looked at everything, talked to everyone, looked at all the documents we can." He also mentioned that they would employ a special counsel to help "get to the bottom of these matters."

Just a week later, Frazier and the special committee went in the other direction, limiting the scope of the investigation to focus on the actions of PSU officials. 

Conflicts of Interest
One week after the Special Committee announcement, Frazier and Tomalis named Louis Freeh to lead the investigation into the Sandusky matter. According to emails uncovered by alumnus Ryan Bagwell, the co-chairs had received direction on potential firms to hire from the Corbett administration on November 8th -- before the task force had been formed.

Charity had ties to Corbett;
business dealings with PSU
Just prior to the selection of Freeh being announced, the web-site Deadspin reported that former and active members of The Second Mile's governing boards had donated approximately $202 thousand to then AG Tom Corbett's 2010 gubernatorial campaign.

The top active members who donated included Robert E. Poole, the charity's chairman ($9,133), Benjamin Hurlburt ($6,500), David Woodle, the vice-chairman ($5,000), Heidi Nicholas ($5,000), Michael Fiore ($4,590). Fiore's company, Leonard S. Fiore, Incorporated, also had lucrative construction contracts with the University.

Frazier, in defending the selection of Louis Freeh and reassured the public of Freeh's independence. However, Bagwell's emails confirmed that during the deliberations on selecting an outside counsel, Tomalis informed Frazier that Freeh planned to supplement his firm with personnel from the Pepper Hamilton law firm. Pepper Hamilton supported Merck in its Vioxx litigation. The available records do not show that Frazier alerted Tomalis to the real or perceived conflict of interest in the use of Pepper Hamilton by the Freeh group.

And Freeh had other potential conflicts of interest beyond Merck and Pepper Hamilton.

Within hours of PSU naming Freeh, he Philadelphia Inquirer reported his ties to substantial PSU distinguished alumnus and donor/fundraiser Ric Struthers. Freeh was general counsel for MBNA while Struthers was the VP in charge of its consumer credit division. Struthers had cut the deal for MBNA to be the official credit card of the Penn State Alumni Association. The article also noted that Struthers was the highest profile executive to sit on the board of directors at The Second Mile.

Underestimating Penn Staters:  Much to the likely surprise of the Inner Circle, members of the Penn State faculty called for the investigation to be led by individuals with no ties to the University.  The alumni formed a grass roots organization named Penn Staters for Responsible Stewardship (PS4RS) also questioned the independence of the Freeh investigation.

But to no avail, Freeh retained the position of special counsel was the second among many disastrous hiring decisions made by the Inner Circle -- with Erickson being the first.

Erickson: Dishonest "Front Man" for Destruction
In Erickson's first message to the Penn State community -- the five point promise -- he stated that the University needed to "reorient our culture" and that he would reinforce the "moral imperative to do the right thing the first time and every time."  

Erickson deceived the public about Penn
State and its dealings with the NCAA
In other words, his first message was that the previous administration and Paterno had created a culture that was immoral and didn't do the right thing.  He, like Frazier and others on the Board, was admitting failures occurred at Penn State without a full accounting of the facts.

However, an even more telling point of his promise was his pledge "to take immediate action based on their (the SITF's) findings."  

The playbook was still in play.

On December 7th, when Erickson sat for his first extensive interview after being named President, he spoke of transforming the University's image as a football school to one of a "world class research institution."  

Then in another preview of things to come, Erickson stated there should be "urgency for discussions about the role of big-time athletics and where they interact with higher education."  Erickson had begun the trashing of Paterno's "grand experiment" and the "success with honor" legacy that so many Penn Staters valued.

Erickson was painting a false picture of Penn State athletics to the nation -- just one of many things he was dishonest about during his tenure.  

As this Examiner article later pointed out, "You do not have to spend long digging through the archives to realize that any assertion that Penn State lacked a focus on the academic side of football is as feeble attempt to support any argument for punishing the school and football program"  

Mark Emmert also got into the act after Erickson's interview, stating:

"There's no question the allegations at Penn State should cause us all to look at the role of an athletic program and determine whether or not we have everything in proper balance"

Those themes would be prominent in the NCAA Consent Decree, but there was more to the story.

The NCAA had reached out to PSU and the Freeh group in late November and was granted permission to participate in the investigation. The Big Ten was added later. As Erickson and Emmert were making their statements to the press, officials from the NCAA and the Big Ten were meeting with the Freeh group at the Nittany Lion Inn.

Erickson & Emmert Agree to Use Freeh Report
Also on that same day, then PSU Counsel Cynthia Baldwin sent a draft response to the NCAA's letter of November 17th 2011. The draft letter, attached to an email addressed to NCAA Counsel Donald Remy, advised the NCAA that the eventual Freeh Report would serve as Penn State's response.

By early December that the Freeh Report had become a dual purpose report. First -- as intended from the beginning -- it would justify the Board's removals of Paterno and Spanier. Its other use would be to help the NCAA repair its image - and crush the Paterno legacy in the process.  

In early January, the NCAA briefed the Freeh team about violations and actions that constituted a Lack of Institutional Control. They provided search terms and potential questions for the investigation's use. The Freeh group resumed its investigation and focused in on the PSU athletics compliance office. By mid-January they were finished.

Documents obtained from Old Main show that in January 2012, Erickson and the NCAA knew that PSU's athletic compliance officials were "fastidious on rules violations."  It didn't matter, however, as the NCAA knew it simply had to "wait for (the) Freeh Report" and it would have its reasons to penalize Paterno and Penn State.

Freeh Report Accepted, Transparency Promised

It was predetermined that the PSU would
use the Freeh Report to hammer Paterno 
Just hours after Freeh held his grandstanding, factually challenged press conference in Philadelphia, Karen Peetz took the stage in Scranton, along with Frazier and Erickson, to swiftly and decisively accept the Freeh Report's findings and recommendations.  

Obviously, they could not have read and digested the entirety of Freeh's 267-page report before deciding to accept it. Frazier later admitted he had only read the Executive Summary and then reviewed the exhibits -- apparently not noting that Exhibits 1, 4, 7, 8 and 9 were missing.

According to the deposition of Frank Guadagnino, after the Freeh press conference, he, Erickson, Frazier, Peetz, and Richard Edelman spend the hours between then and 3:30 crafting the damning press statement.  Frazier, in his deposition, stated he wrote most of it.

“We thank Judge Freeh for his diligence in uncovering the facts over the past eight months and issuing such a comprehensive and thorough report.”

PEETZ: "The Board of Trustees...accepts full responsibilities for the failures that occurred...I'd like to reiterate that we're thankful to Judge Freeh for his report and 119 recommendations...and we will keep Judge Freeh's recommendations as our North Star throughout this process. And above all we must restore trust in our community. We don't expect it to happen overnight. We will earn it back as we move forward and develop a culture of transparency and accountability."

Erickson then took to the stage to continue perpetrating the deception that Board was openly communicating and cooperating with the administration.   

As Karen noted, my administration has begun to work with the Board of Trustees more collaboratively and productively than any administration in our recent history. We're looking forward to continuing to develop these relationships to facilitate healthy and productive communications and shared accountability between the two."

At the Scranton meeting, trustees were excused to go back to their rooms to read the report for a few hours.  When they reconvened, there was no discussion of the Freeh Report (according to Guadagnino's deposition).  In short, there was no collaboration or communications even inside the Board.  

Erickson was continuing his practice of lying to the public.

By and large, Erickson and the cabal had put the Freeh Report in the rear view mirror.  They were counting on public opinion to paint those who rejected the Freeh Report as having no compassion for the victims and as evidence of the "football culture" that prevailed at Penn State.   

Underestimating Penn Staters:  The Inner Circle was correct about public opinion being against the dissenters.  What they didn't count on was that Penn Staters didn't care about public opinion -- instead, they cared about the truth.   Almost immediately, numerous holes were found in the Freeh Report.  The Executive Summary findings weren't supported by the evidence in the rest of the report.  Freeh's evidentiary leaps were too large for Penn Staters to believe and his reasonable conclusions were unreasonable.  The poor quality of the report was evident to almost anyone who bothered to read it.  

The Inner Circle simply wrote off the opposition, knowing that that most in the public wouldn't read the report and instead rely on the media account -- which helped explain why many of Freeh's press conference comments were not supported by his report.  

Before Erickson had left the Scranton campus, he was working the phones with Mark Emmert to secretly discuss what would happen next.    

The Board "Saved" PSU Football

According to depositions of PSU's Frank Guadagnino and the NCAA's Don Remy and Bob Williams, the BOT cabal worked with the NCAA to incorporate the "clean up" themes into the NCAA Consent Decree and at the press conference announcing the sanctions.

From the NCAA Consent Decree (CD):

"The University has...accepted these penalties and corrective actions, has removed all the individual offenders identified by FSS of from their past senior leadership roles...and has already implemented corrective actions." Acknowledging these and other factors, the NCAA does not deem the so-called "death penalty" to be appropriate."

From the NCAA's Press Conference:

"Let me address also the issue of the so-called death penalty. The executive committee, the Division I Board and I, had extensional discussions about the appropriateness of imposing a suspension of football for one or more years. An argument can be made that the egregiousness of the behavior in this case is greater than any other seen in NCAA history, and that, therefore, a multi-year suspension is appropriate.

After much debate, however, we concluded that the sanctions needed to reflect our goals of driving cultural change as much as apply punitive actions. Suspension of the football program would bring with it significant unintended harm to many who had nothing to do with this case. The sanctions we have crafted are more focused and impactful than that blanket penalty.

Moreover, the actions already taken by the new chair of the board, Karen Peets (sic), and the new president, Rodney Erickson, have demonstrated a strong desire and determination on the part of Penn State to take the steps necessary for the university to right these severe wrongs and were appreciated by all of us.

For the next several years now, Penn State can focus on the work of rebuilding its athletic culture not worrying about whether or not it's going to a bowl game. With the sanctions imposed today and with the new leadership, the university, we hope, indeed we intend to ensure that that will be the case. In closing, let me say that this case involves tragic and tragically unnecessary circumstances. One of the grave dangers stemming from our love of sports is that the sports themselves can become too big to fail, indeed, too big to even challenge. The result can be an erosion of academic values that are replaced by the value of hero worship and winning at all costs."

Overestimating Their Self-Importance:  In this instance, while Mark Emmert was trashing the University's culture and the legacy of Joe Paterno -- as well as announcing penalties to the football program -- the Inner Circle actually believed that people would pay attention to the few crumbs thrown their way during the NCAA press conference.  Most assuredly, THEY were the only people that noticed those words. 

The cabal also worked with the NCAA to include language which stated that was intended to shut off future lawsuits (and related expenses):

"Penn State expressly agrees not to challenge the consent decree and waives any claim to further process, including without limitation, any right to a determination of violations by the Committee on Infractions, any appeal under NCAA rules, and any judicial process related to the subject matter of this Consent Decree."

As its final effort to quell opposition (among the alumni) regarding it’s the decision to screw the football program, the Inner Circle enlisted new PSU head football coach, Bill O'Brien. O'Brien delivered, touting the company line of complying with the NCAA and working to improve the integrity of the program (that was already a role model for all other NCAA Division I football programs).

"Today we receive a very harsh penalty from the NCAA and as Head Coach of the Nittany Lions football program, I will do everything in my power to not only comply, but help guide the University forward to become a national leader in ethics, compliance and operational excellence."

Underestimating Penn Staters:  By the time the consent decree was announced, Penn Staters had digested the Freeh Report and knew that there were no NCAA violations and the Sandusky issue was not a matter for the governing body of sports.  Moreover, anything that happened regarding Sandusky had happened well outside the five-year statute of limitations.   The fact that Penn State and the NCAA used a non-traditional process to exact draconian penalties on a violation-free football program was viewed as a major overreach by the NCAA.  Even members of the Board of Trustees, like Ryan McCombie, Ira Lubert, and Joel Myers, raised objections to the manner in which the agreement was reached.  Finally, the Inner Circle's use of O'Brien to try to smooth things over with the alumni really showed how much they underestimated Penn Staters.    The fight against the consent decree wasn't about was about the facts.

It's Not About Football; It's About the Facts

One of the more telling pieces of evidence about the Board's misjudgment of Paterno and Penn Staters was this email from Ken Frazier, which touted the factually challenged article written by ESPN's Howard Bryant.   Bryant, like others before him in the cases of Duke lacrosse and Richard Jewell, accepted allegations as facts.  He, much like the board's inner circle, was a victim of his institution's (the media's) own hype.

Bryant had fallen for the story that Sandusky was not reported in deference to the football program.  If he had actually done any fact checking, he'd have known that Penn State fully cooperated with a 1998 investigation of Sandusky -- while he was an active coach.  He would also have known that in 2001, Penn State, and the football staff in particular, didn't hesitate to report then retired Sandusky when they learned of his actions.  

Moreover, Sandusky's actions were reported to the very people who were able to stop his access to children in both 1998 and 2001.  And both cases, the people who were charged to protect children failed -- but not out of deference to Paterno or football.   The (intentional) failures appeared to be out of deference to Sandusky's ability to provide services to local youths, youths across the state, and to raise money. 

This case was/is also about  unwillingness of the controlling members of the Board of Trustees, as well as the media, to let anyone know what really happened and why.  To this day, the Board obstructs efforts to find the truth, even  to the point of refusing to review a report that they commissioned and for which they paid $8.1 million.  In addition, no major news media outlet has ever critically reviewed the Freeh Report.  

With two pending defamation lawsuits against him receiving only local media coverage, many people have to be at a loss as to why the national media hasn't gone after Judge Freeh?  

From the outset of the Sandusky charges on November 4th, the focus quickly put on Penn State.  Five days later, the inner circle of the Board acted swiftly and decisively to ensure the focus stayed on the University when it ramrodded through Paterno's removal (without taking a vote).   

It quickly hired Louis Freeh to conduct an allegedly "independent" investigation, then invited the NCAA and the Big Ten to join the fray.

When Freeh's investigation concluded, it quickly accepted his report and again piled onto Paterno, PSU football, and the University's culture.   A day later it quickly moved to negotiate the penalties that would again confirm the Sandusky child abuse scandal was enabled by the Penn State culture.  

The Inner Circle  and the NCAA crafted a provision that the penalties were not subject to appeal or legal action with the hopes of ensuring the Freeh Report and the Sandusky mess wouldn't be revisited.   As Karen Peetz said, "by the time someone gets here in 2014, it will be a distant memory." 

Peetz and the Inner Circle were wrong.

Underestimating Penn Staters:  Penn State graduates became parties to lawsuits against the NCAA and sued for damages inflicted by the penalties in the Consent Decree.  The Inner Circle was in uncharted waters. It didn't control the rules and the playbook wouldn't work.  The legal system does not move swiftly and decisively.  In time and through the legal process, we learned that the people who really failed the children have been given a pass by the Harrisburg Patriot News and the news media in general, the former Office of Attorney General, Louis Freeh, and the Inner Circle of the Board of Trustees.  


In 1998, two child welfare workers were informed of over a dozen signs of possible sexual abuse committed by Sandusky against TWO boys.  By the end of the investigation, they had learned he had committed the same acts with other children.  They cleared him of child abuse.

In 2001, The Second Mile confirmed that they received Penn State's report of Sandusky showering with a child.  Any legitimate youth service agency would have put a stop to Sandusky's one-on-one, private access to children immediately.  In fact, most youth services agency would have never allowed it in the first place.  But according to board member Bruce Heim, Penn State's report was a "nonstarter" because he saw Sandusky showering with kids after workouts.  The Executive Director, Jack Raykovitz, suggested that Sandusky "wear swim trunks" when he showered with the children.

Louis Freeh said Penn State coaches ignored "red flags," but who really ignored the red flags?

The first five individuals interviewed by the police in 2009 all mentioned that Sandusky had close relationships with children from The Second Mile.  It took the police two years to get a warrant for the charity's records and begin the search for potential victims associated with the charity.  According the the Moulton Report,  they had relied on Aaron Fisher and school officials at Central Mountain High School to assist the investigation until January 2011.  While the police were avoiding The Second MIle, at least two children/participants were abused.

In 2009, The Second Mile knew of Sandusky's 2009 abuse finding did not disclose it.  They let him continue to fund raise and considerable evidence confirmed he was allowed to access, children after his abuse was known.  Clinton County CYS, who made the abuse finding, didn't follow up to ensure that proper protections were put in place.

Louis Freeh said PSU officials failed to protect against a child predator, but who was really responsible for protecting the children -- and failed?

The Freeh Report whitewashed the significant financial ties between The Second Mile's board members and Penn State -- instead focusing on insignificant relationships between charity and the University.   He also whitewashed the failures of CYS and DPW in 1998 and 2009.

Does Frazier and the Inner Circle think Penn Staters wouldn't notice or find out?  All the information was on the public record.

Did they also believe that Penn Staters wouldn't find it suspicious that their lone mention of The Second Mile since the beginning of the scandal was a clause in the settlement cases requiring victims them to cede their right to sue the charity?  While the clause also states the PSU reserves the right to sue the charity's insurer, it is highly likely that will be playing ice hockey in hell before that happens.

The Second Mile "victim factory" and goverment officials escaping scrutiny have been the elephants in the room all along.

However, as with most scandals, the way to find out what happened is to follow the money. 

Following The Money

Sandusky's charity reportedly raised between $1 and $2 million per year, but evidence indicates the numbers were higher.  On the verge of Sandusky's charges, it received two $3M grants from the Commonwealth and Centre County government for construction of the charity's Center of Excellence.  The grants would later be rescinded.

The charity had assets of $9 million when Sandusky was charged and its  most current filing in January 2014 reported assets of nearly $5 million.  Not too shabby for a charity that in 2012 said it was closing its doors and used that as an excuse to scuttle Lynne Abraham's investigation.  As of the last report, the charity spent $105,351 on children's programs and services out of $1.4 million of its total expenses.  Its two biggest expense items were legal fees of $877,535 and a $200,000 donation to Arrow Ministries -- its eventual successor.

On the other side of the coin is the University's various dealings with the charity.  Just last year, TSM board member Bruce Heim's company, The Apartment Store (part of the Keystone Real Estate group) became the official sponsor of the Beaver Stadium Student Section.  If you recall, Heim was notified of Sandusky's behavior in 2001 and recommended that Dr. Raykovitz not to do anything.  

Over many years, PSU awarded a number of construction contracts to the companies of TSM Chairman of the Board, Robert Poole (Poole/Anderson) and Director, Michael S. Fiore (Leonard S. Fiore).  According to the web-site Deadspin, Poole Anderson received payments of over $25 million in 2009 and 2010.  Fiore's web-site of featured projects contains six PSU projects valued at $35.2 million.  Construction won't stop any time soon, as Penn State plans to spend $2.7 billion on capital improvements between 2014 and 2018.  

Ex-officio trustee, Governor Corbett appointed former TSM Board Member, Cliff Benson, to the PSU BOT.  Benson's role was financial oversight at the charity, which could become problematic considering the discrepancies in recording revenue.  The US Department of Justice subpoenaed records of all source documents related to the University's dealings with the charity.

As widely reported, the members of The Second Mile board were donors to Corbett's gubernatorial campaign and TSM Board Chair/PSU distinguished alumnus, Robert Poole hosted a fundraiser for the Governor.  However, it was former TSM Board member Lance Shaner, who contributed $155,000 or the bulk of the charity's donations toward Corbett's election campaign.   The Republic party headquarters in Harrisburg is named for Shaner's family. 

Shaner is also an honorary Professor at PSU's Hotel School. One of Shaner's businesses, the Shaner Hotel Group was prominently featured for its philanthropy in the Spring 2007 newsletter the Hole in the Wall Gang.  The Hole in the Wall Gang was hit with a child sex abuse scandal in 2013.  Therefore, Shaner had ties to two charities rocked by child sex abuse scandals. 

There were too many connections between Penn State, The Second Mile, and Harrisburg for thinking people (that excludes most of the media) to believe that the lag in investigating The Second Mile, the failure to charge anyone at the charity for failing to report, the high jinks at the Sandusky trial to avoid discussing the charity (and blowing the case), and PSU's exclusion clause in the victim lawsuits were anything other than very strong indicators that The Second Mile was being protected -- at the expense of Penn State.

The question is what was the reason or reasons for the protection?

The money involved was considerable but not enormous enough for a University to trash itself over, therefore this scandal likely involves corruption at the organizational and on personal levels.  A recent study ranked Pennsylvania as the fifth most corrupt state in the Union.  

Among the highlights of the study were that corrupt states spend more on construction and capital projects, constructions projects are subject to bribes (and/or kickbacks), and corrupt states pay more for salaries and wages.  In Pennsylvania's case, it paid a high salary to a "ghost employee" who was a former PSU trustee and currently provides approximately $40 million per year in grants to PSU for its construction projects. 

If the Inner Circle believes Penn Staters aren't aware of what's been exposed about their business practices and think we won't find out more, then they underestimate us at their own peril.