Thursday, September 24

Ken, those documents don't say what you think they say

Ken Frazier's defense of the documents used in the Freeh Report to condemn PSU officials, was utterly dishonest and flatly refuted by the evidence contained in the Freeh Report, the Sandusky trial, and, remarkably, the documents themselves!

Ray Blehar

"The fact of the matter is, those documents say what they say and no amount of hand waving can ever change what those documents say."  
           -- Kenneth Frazier, March 14, 2013

On March 14, 2013, former Penn State trustee and co-chair of the Special Investigations Task Force (SITF), Kenneth Frazier, angrily defended the Freeh Report during a meeting of the legal and compliance committee.  During his remarks, he made several disparaging remarks, including a racially charged statement referencing the O.J. Simpson trial verdict.

Frazier later attempted to apologize for his outburst to Penn State alumnus, Bill Cluck, however, missed on his first attempt and needed a "do-over." Frazier's advocacy of the Freeh Report continued the next day at the full meeting of the Board of Trustees (BOT).

During a discussion of the validity of the Freeh Report, former trustee Al Clemens pressed the issue of why Penn State had been penalized by the NCAA for the failures of the Pennsylvania Department of Public Welfare and the police to recognize Sandusky as a sex offender in 1998.

Clemens at 3:20:37: The problem here, I think, is that there's a big divide between the alumni and the Board and until...and we all want to move forward...but until we somehow smoke this out a little bit, and in the end, it leads to my favorite thing -- the NCAA because they base everything on '98.

Everything Emmert says as he goes around the country is that if Penn State would have done something about 98 -- well, Penn State wasn't involved in 98.  The Department of Welfare was involved in it, the police were involved in it and you get to the point where, why wasn't the the Department of Welfare - why didn't they monitoring this thing going forward if they were involved in it in 98?

So I think those are some of the questions I would like to ask Louis Freeh?"

Frazier, whose scathing remarks on July 12, 2012 condemned Joe Paterno, Graham Spanier, Gary Schultz, and Tim Curley for their "failure to protect children," summarily excused the individuals paid with Pennsylvania's task dollars to perform that very critical function.  Additionally, his commentary was not reflective of Penn State's commitment to becoming a national leader in the area of child abuse prevention.

Frazier at 3:21:22: "Once again, we did not investigate the Department of Public Welfare or anyone outside Penn State.  Irrespective of whether you think they have a responsibility, that was not within the parameters of the Freeh Report."

The Freeh engagement letter and the Freeh Report disproved Frazier's assertion about the report parameters.

The engagement letter states that Freeh, Sporkin, and Sullivan (FSS) would "perform a full, independent and complete investigation of the recently publicized allegations of the sexual abuse at the facilities and the alleged failure of The Pennsylvania State University ("PSU") personnel to report such sexual abuse to appropriate police and government authorities" and provide a "written report." Undoubtedly, "a full, independent, and complete investigation" of the 1998 incident would include the role of.and decisions by, the DPW.

Moreover, Chapter 2 of the Freeh Report covered many of the 1998 investigative steps taken by DPW and the State College Borough Police, discussed in some detail the recommendations by local psychologist, Dr. Alycia Chambers, and the actions of the Centre County District Attorney's office. Clearly,  Frazier's assertion that DPW "or anyone outside Penn State" was not investigated was flatly refuted by the documents in evidence (e.g., the Freeh Report).

Frazier at 3:21:35:  "The Freeh Report was intended to find the documentation of what happened in 1998. 

First, the assertion that Freeh was "intended to find the documentation" suggests that Frazier was aware the documents from 1998 existed prior to Freeh's hire.  Analysis based on the evidence shows that it is almost certain that the Schultz file and the emails from 1998 and 2001 were recovered prior to April 2011.  The documents were turned over to Freeh.  He didn't find anything.

Frazier at 3:21:43:  And the documentation of what happened in 1998, on the Penn State side is relatively clear in terms of what we thought.

Frazier went on to pluck phrases from the documents and falsely attribute them to the Penn State officials.

Frazier at 3:21:52:  "The documents say for example, that people felt there was inappropriate behavior: "at best inappropriate, at worst sexual improprieties."

At the time of his statement,  Frazier knew that the 1998 investigation conducted by the police and child protective services concluded that "sexual improprieties" did not occur.  In fact, Freeh Report Exhibit 2E, an email dated,  June 9, 1998 clearly states that the police and DPW informed PSU officials "there was no criminal behavior" (i.e., sexual improprieties between Sandusky and the child).

Thus Frazier. as an attorney, obviously knew that his first example of "what Penn State thought" was flatly rejected by the evidence in a report he was steadfastly defending.

A little over one year later, on  July 29, 2013, former University Park police Chief Tom Harmon testified that he made the observation about sexual improprieties as part of the ongoing 1998 investigation.

Harmon at 110:

Frazier at 3:22:06: "It goes on to say in one place, there had to be genital contact given the size differential."

This phrase was included in the notes from the "Schultz file."  It is clear from the flow of information that this observation was made by either Detective Schreffler or the mother during the May 4th, 1998 interview.

The smartest guy in the room, Frazier, didn't make an honest mistake in misinterpreting this note.  It is clear that Schultz was memorializing the conversation as Harmon spoke to him over the phone.

However, Frazier's dishonesty in stating that Penn State had sufficient reason to believe genital contact occurred was not only refuted by the June 9, 1998 email but by the NOT GUILTY verdict for indent assault charge in the Victim 6 incident.

Having run out of ammunition against PSU officials regarding the 1998 documents, Frazier turned to wrongly attributing the notation on the 2001 billing record of Wendell Courtney to Schultz and then employed the same misinterpretations of the February 2001 emails as did Louis Freeh.

Frazier at 3:22:53: Subsequent emails in which it is absolutely clear that there was a three point plan in how to deal with it, including notifying the Department of Public Welfare.  

First, Frazier, as did Freeh, omitted mentioning the February 12, 2001 document (Freeh Exhibit 2C) that provided the detailed plan written out by Gary Schultz (below).  The plan that Curley would meet with Paterno and then with Sandusky that Friday (Feb. 16th).   A report to DPW was an option if Sandusky did not "confess" to having a problem. There is no mention of reporting the incident to The Second Mile, thus a "three-point" plan didn't exist from the outset.

Freeh Exhibit 2D, an email dated February 26, 2001, contained the three point plan referenced by Frazier, but his characterization that it was agreed upon is untrue, on two counts.   

First, the plain language of the email indicates Schultz was making an assumption that the plan was in effect.

Next, the letter from Graham Spanier (Freeh Report, Exhibit 2J) appears to confirm that it was an assumption because Schultz was not in attendance at the meeting.  Frazier, like Freeh, dismissed this evidence because it didn't fit with the existing narrative (a.k.a., conspiracy theory) of a Penn State cover-up.

Frazier at 3:23:05: Subsequent to that another email saying after discussing it with our late football coach and thinking about it. I'm no longer comfortable...and then a decision made not to do...I'm no longer comfortable, I'm sorry, with what we agreed were the next steps.  And then a decision not to do what was agreed to be the next steps."

The emails spanning February 26 to 27, 2001 (Freeh Report, Exhibit 2F) confirm that Spanier's notes are correct and that Schultz was not a party to the discussion that took place on Sunday afternoon. Additional evidence supporting this is Spanier's greeting at 10:18PM on 2/27/01 that simply says "Tim," -- and not, Tim and Gary.

Moreover, the plan laid out in this email substantially agrees with the plan that was originally discussed on February 12, 2001.  The key point of the plan was that a report to DPW was optional on February 12th and remained optional on February 27th. Curley's message (at 8:10 PM on 2/27) also reflects that he is addressing just Spanier due to the reference to the Sunday meeting.

After he made these dishonest arguments propping up the flimsy evidence, Frazier stated:

"I just think we have to be careful and not go down a rat hole and spin endlessly trying to rewrite history or re-live history.  I think that we are going to have to contend and we are contending in civil contexts and in other contexts, what is clearly the documentation in our files."

The totality of the evidence presented clearly shows that Frazier, as the co-chair of the SITF who oversaw the investigation of FSS and lauded the Freeh Report, dishonestly evaluated the evidence in order to prop up the "reasonable conclusions" that condemned PSU officials.

And it is highly likely he did so because, to do otherwise, would be an admission that the Freeh Report was an $8.5 million dollar failure that wreaked havoc on the University's reputation and caused great financial harm.

The attorneys for the Alumni-elected Trustees spelled out this "elephant in the room" in their most recent arguments for access to the Freeh Source materials.

"Now, Judge,there's an elephant in the room. The elephant in the room is, what's the difference
between the Petitioner Trustees who seek this information and the majority who seeks to block
their access to the information? And under corporate law, there's this notion of interested versus disinterested directors. And I submit to  you that the elephant in the room is that the seven Petitioner Trustees, all of whom came on the Board after Mr. Freeh was engaged, all of whom came on the
Board after the Pennsylvania State University engaged Mr. Freeh and allowed him to issue his report without reviewing it. The seven Trustees are disinterested in the review of the conduct of whether Mr.Freeh performed well or poorly, whether his report is accurate or inaccurate, because they
weren't involved in engaging him. They came on the Board after the report was finished.

That can't be said of all of the majority..."

..or their predecessors, like Ken Frazier and Ron Tomalis -- who know the documents don't say what Freeh and Frazier said they say.


  1. Another excellent analysis Ray. Thank you for your tireless efforts to expose liars like Ken Frazier and his many co-conspirators. Your tenacity is an inspiration.

  2. I can think of 8.5 million reasons why Ken Frazier would have been such a willing accomplice of the PA Office of Attorney General.

    I can only think of one reason why Ken didn't feel the need to recuse himself from leading the SITF knowing that Merck was negotiating with the OAG at the same time he was leading the task force that was investigating Penn State. Especially considering how much cooperation there was between Freeh and the OAG.

    1. Thanks, Jeff.

      You brought up a great point on the PA-Merck vioxx settlement and Frazier's conflict of interest.

      Merck paid a settlement to PA in 2008 also.

  3. Thank you, Ray. Hoping this gets aired in court soon. CSS do not deserve this going on for so long. It's must be hell.

  4. Good work, Ray!

    Lost in the duplicitous comments by Frazier and others, is the fact that the emails do not say what they are purported to say. Read correctly, the only change proposed by Tim was to include Sandusky among those to be told. He did not propose to exclude anyone. He wrote, "....I am uncomfortable going to everyone, but the person involved...." "Everyone, but", not 'anyone, but'. Had Tim written 'anyone,but', the Freeh narrative might have been a "reasonable conclusion". It would have meant that Tim wanted to tell Sandusky, but no one else. But that isn't what he said. "Everyone, but..." means the exact opposite. Instead of only telling Sandusky, Tim is uncomfortable telling "everyone, but Sandusky. "He basically said he was uncomfortable going behind Sandusky's back. Including Sandusky is the "extra step" referenced in Spanier's response. "It requires you to go a step further and means your conversation will be all the more difficult, but I admire your willingness to do that and I am supportive...."

    These men were taking preventive measures to minimize the potential of Sandusky getting into a he said/he said situation down the road. That V2 had actually been abused wasn't even on Spanier's radar. "The only downside for us is if our message is not “heard” and acted upon, and we then become vulnerable for not having reported it...." How could the only downside be some subsequent incident? How could Spanier's one concern be an if/then scenario when the elephant in the room should have been the kid McQueary saw?

    The Freeh narrative is demonstrably wrong. In my mind, one of the biggest questions left to answer is when did they know Freeh's work product was a fraud? After its release, when the price for Freeh's soul went from $6.5 million to $8.3 million, or right from the start?