1976, Insurance, Evidence, and Media Hypocrisy

In what should have been a story about how the Penn State Board of Trustees blew $93 million dollars, the media spun a story about an uncorroborated allegation about Joe Paterno

By
Ray Blehar

Yesterday, a judge ruled that Penn State University was not entitled to insurance reimbursement for most of the claims it paid to victims as a result of the Sandusky scandal.  The majority of the settlements paid for claims after 1992 are not covered. 

You can read a responsibly written report by Lori Falce of the Centre Daily Times about that here.

The story that made all the national headlines, however, involves an unsupported allegation about a 1976 incident that was allegedly reported to Joe Paterno by an alleged Sandusky victim.   The media malpractice came about not only when the word "alleged" was dropped from the headlines, but when the Patriot News ran with the uncorroborated allegation.

Getting back to responsible journalism, Falce wrote:  

But why use the word “alleged”? The retired defensive coordinator was convicted of 45 counts of child sex abuse crimes in 2012, right?  Yes. Those 45 counts relate to 10 boys, and incidents that occurred between September 1995 and the summer of 2009. However, Glazer’s order points to many more people and claims that include 1976, 1987, 1988, 1998 and 2001.

Based on the judges ruling, PSU is not entitled to reimbursement for the compensation awarded to almost all of the victims who testified at the trial, to the person who claimed to be Victim 2, to John Doe A (whose abuse in 1994 brought about PMA's lawsuit), and John Doe X who claimed abuse in 2004.  Victims 1 and 9's 2005 allegations will be covered as a single claim and will result in serious financial impact of around $20 million to PSU. 

It should also be noted that PSU's failure to challenge the validity of the Freeh Report resulted in no coverage for claims between 1998 and 2001.

As for the other non-trial claimants, PSU has admitted it has no evidence to corroborate their claims.  

Uncorroborated Allegations

On Friday, PSU released a statement that it does not possess any information to corroborate the allegations about the 1976 report and others:

  "The university has no records from the time to help evaluate the claims. More importantly, Coach Paterno is not here to defend himself. Penn State does not intend to comment further, out of concern for privacy, and due to the strict confidentiality commitments that govern our various settlement agreements."

If there was more responsible journalism in America, the second part of the story is that PSU didn't bother to vet the claims.  

In 2013, the PSU Board of Trustees Legal and Compliance Committee, then chaired by current Vice-Chair Ira Lubert, approved a settlement program then allocated $59.7 million dollars for compensation based on 31 claims.  In what is surely not a coincidence, PSU's insurance coverage for bodily injury claims was $2 million per incident and a $3 million aggregate limit.   

Do the math.

26 of the 31 claims were approved and all $59.7 million was spent. However, 3 of the claims not approved happened to be for incidents in which the claimants were asking for compensation over $3 million.  

The bottom line was that the legal team from Feinberg Rozen, basically approved the claims based on whether or not it was inside the insurance coverage limits.  

In 2015, an additional $33 million was paid for later claims, including an exorbitant payment to one claimant who was previously denied compensation (after his lawyers were granted access to the Freeh Source materials).

As the judge ruled, PSU was not covered for many to most of the claims -- and had no legitimate reason to EXPECT coverage based on its policies.

Use of Evidence

As I write this, various alleged legal experts, some from the world of sports, have weighed in that the 1976 allegation about Paterno cannot be corroborated.   They are correct, however, the legitimacy of the entire 1976 claim can be evaluated in light of the other evidence in the case. 

Former FBI child molestation investigator, Kenneth Lanning, who wrote what was is commonly referred to as the "Child Molester Investigator's Bible" provides this guidance on assessing victim claims.

Given the above, the 1976 deposition could be accessed and reviewed for consistency with the grooming and victimization techniques used by Sandusky.  Other details in the deposition can also be examined for credibility, as I will show below.

In summary, not only can the 1976 deposition be evaluated, but any and all depositions should be evaluated by qualified individuals. 

The Feinberg Rozen team proved themselves not capable of the task -- and the same goes for the unqualified investigators and biased prosecutors who worked on the Sandusky case.

Notable Vetting Failure

Using Lanning's "template of probability," Victim 5's most serious abuse allegation was not credible nor was the August 2001 time frame of it.  The significance of the date was that PSU paid the (then) largest settlement to Victim 5 because PSU could have prevented his abuse (because it allegedly occurred after the McQueary shower incident).

Unlike Feinberg Rozen, the jury likely used the "template of probability" in vetting V5's indecent assault allegation -- and voting not guilty for that charge.  

V5 testified to meeting Sandusky in 1999 and attending numerous events, including trips to Albright College to watch football games over two years.  However, unlike the rest of the victims he testified he didn't work out and shower with Sandusky until 2001.  Almost all of the other victims stated they were introduced by Sandusky the first year of camp and then invited to work out very early in their relationships with Sandusky.  In Victim 6's case, it was his initial one-on-one encounter.

Also, Victim 5 alleged being indecently touched the first time he showered with Sandusky.  Other victims who showered with Sandusky on multiple occasions testified to a gradual progression of touching/washing leading into indecent touching.  This gradual progression is typical for acquaintance offenders, as noted by Dr. Alycia Chambers Report about the Victim 6 (1998) incident.

In summary, Victim 5's abuse scenario didn't fit the "template of probability."

The testimony about the time frame of the incident was also inconsistent.

-- Victim 5 told the grand jury he was abused in 1998 (when he was ten years old).

-- In November 2011, he met with investigators to tell them he might have been the child referred to in the 2000 janitor incident (when he was twelve)

-- At the trial and in his claim, he stated he clearly recalled being abused in August 2001 (when he was 13).  Note:  Prosecutors changed the Bill of Particulars in his case from a very broad time frame 1996 to 2002 down to a single month (August 2001).

Notably, Judge Cleland instructed the jury that child victims who were abused many years ago can't be expected to know the exact date of the abuse.

So which date was most accurate?

According to his grand jury testimony, Victim 5 stated Sandusky had an erection in the shower didn't understand what it meant.

Given that testimony, it is more likely he was ten and it was in 1998 and not 13 in 2001.  Also, given Sandusky's penchant for early showers with his victims, it occurred soon after he met Victim 5, not two years later.

Again, Feinberg Rozen made the Victim 5 settlement the highest on the grounds that it happened in August 2001 and could have been prevented by PSU.

Victim Credibility/Media Hypocrisy

The media is quick to criticize anyone who questions the claims of a child sexual abuse victim. In the Jerry Sandusky case, the media remains quick to accept and run with uncorroborated allegations and sensationalize them.  

While Sandusky was convicted of 45 of 48 counts, the single count that caused the media firestorm - the 2001 rape allegation -- resulted in an acquittal.  You will be hard pressed to find media coverage highlighting that fact.

Interestingly enough, the only other victim to allege being raped and have it result in a conviction was Victim 9.  The media dutifully reported that he was raped repeatedly and had little issue with his story -- until it came crashing down on Tom Corbett's Sandusky investigation.

After AG Kathleen Kane correctly reported that Victim 9's abuse occurred in 2009 during the Sandusky investigation, the Patriot News' Charles Thompson quickly leaped into action claiming his abuse ended in 2008.  

His testimony on cross-examination was certain.  The abuse was through his 16th birthday -- as reported by the Patriot News in its trial coverage.

Unlike Victim 5, who was trying to recall an incident from 10 or more years prior, Victim 9 was 18 when he testified to being abused two years prior at age 16.

The Patriot News editorial board wrote an op-ed that contradicted their own newspaper's  trial coverage.

CNN's Sara Ganim, a Pulitzer winner,  also got in on the action, turning back the clock on Victim 9's abuse when she wrote about his civil lawsuit.

But the hypocrisy wasn't just about Victim 9.

Victim D.F., who was identified by Kane as another child abused while the Sandusky investigation lagged, was also labeled as not credible by the Patriot News (and Penn State).

D.F. made the "mistake" of claiming his abuse took place from 2008 to 2011.  As such, his allegations were dismissed outright by Prosecutor Frank Fina and the Patriot News.

The facts are that D.F.'s lawsuit allegations are extremely similar to those of Victim 10, who was presented as a witness at the trial by Fina and who received a settlement from PSU.

In summary, the Patriot News determined credibility in these cases based on WHO it implicated, not the evidence on which it was based.    It blamed selected PSU officials, but protected those at the state government level who were truly responsible and had the information needed to stop Sandusky in 1998 and in 2009. 

Real Tragedy: PA's Kids Sold Down the River

The real tragedy of the Sandusky Scandal is that the truth became the biggest victim -- and Charles Thompson, Sara Ganim, and the editorial board of the Patriot News sold PA's kids down the river to win a Pulitzer prize.

Their recent reports aimed at Paterno are nothing more than a desperate attempts to try to prop up Ganim's factually challenged and now crumbling Pulitzer stories about a Penn State football cover-up that didn't happen.  Ganim's latest story is so far fetched that it should be on the cover of the National Enquirer.

The Patriot News and Ganim's feigned concerns about the welfare of children are the height of hypocrisy.  Their reporting failed to educate the public on how acquaintance offenders and that irresponsible reporting continues.

More Hypocrisy: I wrote about settlement payouts here back in May 2015 -- after PSU paid out an estimated $20 million to settle with Victim 9, who was originally denied compensation.  After his legal team had been awarded discovery to the Freeh Source materials, the BOT convened and emergency meeting to approve his payment.