Erickson's Notebook Reveals Evidence of Deceptions, Possible Crimes

PSU's recent filing denying alumni trustees access to Freeh's source materials falsely argues that the University is protecting employee confidentiality.  The reality is that they are hiding evidence of possible crimes. 

By
Ray Blehar

Today, I am making a partial release of evidence I received in October 2012.  The release is in response to the PSU administration's continued stonewalling in providing access to the Freeh Source Materials -- that will help us get to the truth of the Sandusky matter.

Today, we take another step toward the truth.

The evidence released today reveals:

-- The administration knew Freeh lied about his independent discovery of the email evidence; 

-- The NCAA got at least one substantive update on the progress of the ongoing investigation at PSU; and, 

-- The administration planned to submit false personal injury claims to the Pennsylvania Manufacturers Insurance Company (PMA) in an effort to get reimbursed for the settlement costs of the John Doe A lawsuit and, if successful, likely future lawsuit settlements.

The Evidence

The information that follows is from a copy of the personal notebook of former Penn State President Rodney Erickson.  Two independent sources confirmed that the handwriting belongs to Erickson.

Analysis of the contents reveals that Erickson was receiving an update on the progress of the pending investigations and actions related to the Sandusky scandal.  It also appears that the notes capture the impressions of the Pennsylvania Office of Attorney General (OAG), thus there is an inherent bias to assume guilt on the part of PSU employees and officials and an inherent bias in the OAG's judgments of the reliability of the evidence.  I will make those distinctions clear in my presentations, where applicable. 

To maintain the confidentiality of the employees involved, I have (properly) redacted all of the information that could compromise their identities.  

Possible Conspiracy, Obstruction of Justice, Forgery

Page B-1 of the notebook.

Line 1 of the page below confirms the date of the note as January 31 (2012).

Line 2 shows that Erickson is to obtain copies of notes from Tim Curley and Gary Schultz.  This is significant because there has never been a mention of notes belonging to former Athletic Director Curley.  The mention of notes from Schultz is also an issue because those notes were allegedly not turned over to the OAG until April 2012.  

The "discovery" of the Schultz notes by the Freeh team allegedly occurred in May 2012.  Yet the Conspiracy of Silence presentment  identified April 2012 (see page 20) as the date on which the Schultz file was turned over.  Additionally, Kimberly Belcher testified that she turned over the Schultz files in April 2012 (to the OAG).  Belcher also testified that Gary Schultz turned over copies of the files (to the OAG) one day earlier.    Therefore, there is agreement between the prosecutors and one of their witnesses that Freeh lied about his discovery of the Schultz file (all references to the Schultz file in the Freeh Report are dated 5-1-12).  

Lines 3, 4, and 5 indicate that Ira Lubert, Stephanie Deviney, and Keith Eckel may have served as a special liaison group for the OAG investigation.  More about the possible roles of each member in a future post.

Lines 8 through 15 discuss the OAG's evidence and impressions regarding Penn State's failure to cooperate during the investigation.  

Lines 10 and 11 make reference to PSU taking 18 months to supply records that were subpoenaed on January 7, 2010.  Counting forward 18 months puts the date of receipt by the OAG as 7 July 2011, which is the exact date the Moulton Report (page 158) confirmed for the "Penn State emails" being turned over to the Pennsylvania State Police.  Obviously, the Penn State Office of General Counsel (OGC) knew when it turned over the email evidence, thus at a minimum, the OGC knew Freeh lied about his independent discovery of the email evidence at his grandstanding press conference on July 12, 2012.  

The following quote is a reference to Freeh Report Exhibit 5G and the email evidence (my emphasis added):

"In critical written correspondence that we uncovered on March 20th of this year, we see evidence of their proposed plan of action in February 2001 that included reporting allegations about Sandusky to the authorities. After Mr. Curley consulted with Mr. Paterno, however, they changed the plan and decided not to make a report to the authorities."

However, there are broader legal implications.

False Charges.  Former President Graham Spanier  was charged with obstruction of justice for failure to comply with Subpoena 1179 that requested his emails and documents.  The above information indicates that key documents and emails were turned over while Spanier was President, and not delayed until March/April 2012, as falsely claimed by former AG Linda Kelly (on page 32 of the Conspiracy of Silence presentment).  

At the July 29, 2013 preliminary hearing, Penn State IT forensics team expert, John Corro testified that he was not contacted to retrieve information from the December 2010 subpoena (#1179) until March or April of 2011.  After being instructed to gather the requested information, he turned over three USB drives containing the emails to Baldwin in April 2011 (see page 91).  Moreover, at the grand jury hearing of Graham Spanier, Baldwin promised to turn over the requested emails by April 15, 2011.  It is quite apparent that Penn State's OGC was behind the delay in turning over email, not Spanier. (Possible Obstruction of Justice,  Conspiracy)

Schultz was also charged with obstruction of justice for his failure to turn over his notes.  However, the notebook appears to show Schultz's notes already in the University's possession in January 2012.   If this is indeed the case, then it is likely the infamous "secret file" of Schultz was procured shortly after he informed Baldwin of its existence on January 5, 2011. Copies were made and likely provided to the AG, while the originals were returned to the drawer.  (Possible Conspiracy)

Forgery. Considering the emails were turned over in July 2011, it defies explanation that Spanier was not charged with failure to report child abuse in November 2011.  Freeh Report Exhibit 5G includes an email purported to be written by Spanier on 27 February 2001. In that email, Spanier allegedly wrote that PSU could be "vulnerable for not reporting" the incident.  Also note that the Sandusky Grand Jury Presentment (page 12) referenced the responsibility of the head of a school to report suspected child abuse, but remarkably didn't charge Spanier at that time.   

So what is going on?

According to the forensics experts I consulted, the February 27, 2001 email was universally deemed to be suspicious.  Further research revealed an error that would cause html tags to appear in the text of the email would be caused by converting a Eudora email file to Outlook.  This is exactly what would have occurred if someone downloaded and edited the file, due to PSU's system switch from Eudora to Outlook.   Based on those facts, along with numerous reports of varying dates by witnesses to the turnover of the email and recent reports of Freeh's past history of manipulating evidence (e.g., BP and FBI),  there are substantial reasons to suspect evidence tampering. (Possible Forgery)

Exhibit 5G is shown below with the html tag " " (tag = non-breaking space) circled between each sentence where a double space separates them.  Note that it consistently appears in the text of Schultz and Spanier (at the top), who both use the traditional method of typing a double space after a period.  Conversely, Curley types in an alternative method of using a single space.  It is notable that there is only one html tag in the spaces between the sentences typed by Curley, which is caused by typing an extra space.  Other email samples obtained that were written by Curley demonstrated he single spaced after a period.  So in just this one instance, Curley used a double space? It just so happens the html tag appears after the only reference in the document about Joe Paterno.  This suggests that the line about Paterno was inserted into the document.  See below:

The OAG forensics expert, Braden Cook, offered no legitimate explanation for the presence of the html tags during his testimony (page 81) on July 30, 2013.  Cook simply said "that is formatting put in there from a web page."  Neither Cook nor any other expert witness brought forward by the Commonwealth testified as to the date the emails were turned over to prosecutors.  And of course, no one who testified made any mention of Louis Freeh's alleged role in discovering the documents.  

Anyone want to venture a guess on what Freeh's role was with regard to emails?  Hint: His computers were not connected to the University's network, thus his "work" was not traceable.

A review of the original email files (i.e., the electronic source data used by Freeh) would prove or disprove evidence tampering.  I suspect this is one of the key issues behind the Board's desperation to keep the source material hidden. (Possible Conspiracy) 

NCAA Received a Substantive Update On The Investigation

The Corman v. NCAA lawsuit revealed that the PSU BOT gave the Big Ten Conference and the NCAA permission to take part in Freeh's investigation. Although Penn State permitted their participation, officials from the NCAA and Penn State denied that any substantive updates were provided during the investigation.  

Pages B-13 and B-14 reveal that those statements were false.  

Line 5 alleges that an assistant coach gave permission for stuff (Line 15) to be given to recruits (Line 11).  Line 16 alleges that they were given a slap on the wrist for that activity. The allegations reveal a minor NCAA violation of giving impermissible benefits to recruits. The NCAA's typical punishment for minor violations is colloquially referred to as a "slap on the wrist."

Lines 17 and 19 report that Mike McQueary had a gambling problem and/or gambling debts. This information was revealed to the public in The Whistleblower's Last Stand, by ESPN's Don Van Natta (March 3, 2014).  McQueary bet on college and NFL games as a player, which would have been a major violation if discovered back then.  However, in 2011, the violation was outside the statute of limitations for enforcement.  (Note: All of the Sandusky abuse incidents on campus were outside the statute of limitations as well, so that says quite a bit about the "expertise" Gene Marsh brought to the table).  

Page B-13, lines 23 and 24 and Page B-14, lines 1 and 2, state that former athletic director Tim Curley and another PSU official were "fastidious on rules violations e.g. giving donations."

B-14, line 5 appears to be the NCAA response to the update, which was it was "waiting for (the) Freeh Report."

B-14 lines 7 through 10 refer to the AG continuing its investigation at Penn State.

B-14, line 13 refers to a teleconference scheduled for 5:30 PM

The remainder of the page is not relevant to the NCAA investigation.

Analysis and Implications

The note reveals that the NCAA and Penn State learned of violations that were found during the AG's investigation, but nothing that would be actionable to levy serious punishment.  However, the parties also learned that AD Curley and his staff were very fastidious about rules.  

As I reported in An Act of Bad Faith, 22 January 2015, the Freeh investigation had finished its review of the football program in January as well (based on the end notes of the Freeh Report).  Thus this was likely the last investigation based report about the athletic department and the football program.  Any other information used by Freeh to condemn the athletic "culture" was garnered from trustees (interviewed in April) and former PSU employees, like Vicky Triponey (interviewed in March).  After the investigations and interviews, Freeh and the NCAA didn't have anything tangible on Paterno and PSU Athletics -- and Old Main was certainly aware of it.

The deceptive methods of the BOT power bloc are on display in this July 20, 2012 email.  Erickson, who knows that investigations by the OAG and Freeh (which examined police records related to the Clery Act) surfaced nothing substantial, but then goes on to "bluff" Guadagnino and Dunham into thinking there would be risk in the traditional Committee On Infractions (COI) investigation process.







































Contrary to media reports, the evidence in this case is not of an NCAA cram down, but of Old Main "selling the University down the river," as stated by former NCAA official Ameen Najjar.  After Najjar's statement, the alumni watchdog group, Penn Staters for Responsible Stewardship (PS4RS) demanded a release of the documents related to the eventual NCAA Consent Decree.  

PS4RS stated:

“Should we ultimately find that Penn State was complicit in the imposition of the sanctions, or that President Erickson misrepresented the events that led to the execution of the consent decree, then it is reasonable to conclude that the (b)oard of (t)rustees and administration have been dishonest with the Penn State community and have failed wholly and completely in their fiduciary responsibility to the (u)niversity,” 

Pages B-13 and B-14 provide evidence of misrepresentation of the facts by Erickson and complicity with the NCAA in avoiding an investigation which would have eventually found no grounds to punish Penn State's athletic department.

But the misrepresentation of facts by the Penn State Board of Trustees started well before any decisions were made about the NCAA Consent Decree.

Attempted (and Rejected) Insurance Fraud

A rather cryptic set of notes spanning pages B-15 and B-16 appears to capture details from a discussion regarding the PMA's notice that it would not pay coverage for incidents of sexual abuse related to the Sandusky scandal.  

Penn State attempted to file the claims as personal injury claims, and then perhaps, was going to justify the claims by using fraudulent medical billings from the Hershey Medical Center.  

Page B-15, line 17 is noting the name of the law firm, Jenner and Block, who was working on the Pennsylvania Manufacturers Association Insurance Company (PMA) lawsuit.

Page B-16, line 1 characterizes PSU's strategy as a "Medical Care Story." (Possible fraud)

Page B-16, line 2 cryptically refers to victim settlements.

Page B-16, Line 4 is somewhat unintelligible, but the reference to Hershey is clear.  The second word might be "language," in a reference to policy language, but that is hardly conclusive.  There is also a reference to "Bill" which may be a name or it may be a reference to medical bills -- again, no certainty in interpreting the handwriting.

As it turned out, PSU followed through on the "medical care story" when it began negotiating the claims related to the John Doe A lawsuit with the PMA in early January.  In Penn State's legal filing, pages 5 and 6 it conveniently substitutes the words "bodily injury" for "abuse" to make its case -- and the only word it quotes from the John Doe A lawsuit is "continuously."   

Penn State alleged that PMA at first agreed to pay the claims, then upon further review, decided differently.  On February 2nd, one day after these notes were taken two emails announced that PMA filed for a declaratory judgment to limit its liability in the Penn State case.  It essentially agreed to pay claims related to negligence of University officials, but not the abuse claims.

There is much back and forth over which policy was in effect when, but the bottom line is that no policy issued after 1992 contained coverage for abuse and/or molestation.  One has to wonder if PMA didn't do PSU a favor by filing for a declaratory judgment and sparing the University the trouble of creating bogus medical treatment bills at Hershey.  

Please recall that in the immediate aftermath of the Sandusky charges, Penn State pledged to provide assistance to the victims in Erickson's Five Point Promise.  In March 2012, it officially announced free counseling services for child abuse victims of Sandusky, which was offered via a contract through Praesidium -- a Texas counseling firm.

How did Penn State end up using Praesidium?  That I do not know, but it seems like an unusual coincidence that one of the key staff members of that firm is named Matthew Dunham?

Undoubtedly, the network of concerned Penn State alumni will be checking for possible connections to current PSU Counsel Steven Dunham because that is the scrutiny that the Board has brought upon itself by continuously stonewalling its alumni and the alumni elected trustees.

Conclusion 

The evidence released today indicates that high ranking members of the Penn State University administration were engaged in dishonest practices well before the announcement of the Sandusky charges and they continued their deceptions up to the signing of the NCAA Consent Decree.

Not only did the administration deceive its alumni and the public, but it went as far as to deceive other members of the board of trustees, members of the PSU OGC, and even legal experts (i.e., Gene Marsh) that it hired to "assist" with the scandal. 

Some of the evidence that was revealed today helps to explain why Barron and his cohorts will likely fight to the bitter end to keep the alumni trustees from accessing the Freeh Source Materials -- the scandal "behind" the phony football scandal is far worse.

Today's blog serves notice to the administration that they may be able to keep people away from a law office in Philadelphia, but that office isn't the only place that the truth about the scandal can be found.

The truth is out there -- and people are finding it.