Friday, December 30

PSU Counter Suit Won't Go Far

Penn State's counter suit against Spanier provides opportunity to validate email evidence, however, given PSU's track record it will settle the case before allowing the truth to be known

Ray Blehar

Penn State University's (PSU) counter suit against former President Graham Spanier alleges that Spanier knew about and failed to make full and complete disclosure of his knowledge of the Sandusky grand jury investigation and of the information contained in “the 2012 Discovered Emails."   

In response to this suit, Spanier's legal team should seek clarification regarding what is meant by “the 2012 Discovered Emails."  More specifically, which emails were found in 2012, what exact date were they discovered, who discovered them, to whom were they provided, and in what format?

As of right now, the answers to those questions are unclear, based on the evidence in that was provided in the criminal cases of Spanier, former PSU Athletic Director Timothy Curley, and former Senior Vice-President-Finance and Business, Gary Schultz.

Freeh’s Email Discovery Statements

During Louis Freeh’s press conference, he claimed that the Special Investigative Council (SIC) discovered the emails from 1998 and 2001.  Freeh alleged the emails were used to correct the date of the 2002 (sic) McQueary incident.

“Our investigative team made independent discovery of critical 1998 and 2001 emails – the most important evidence in this investigation. We also confirmed, through our separate forensic review, that the correct year of the Sandusky sexual assault witnessed by Michael McQueary was 2001, and not 2002 as set forth in the original Grand Jury presentment.”

Freeh’s press release of July 12, 2012 was more specific, stating that the SIC discovered the emails on March 20, 2012.

“In critical written correspondence that we uncovered on March 20th of this year…”

The Freeh Report (at 11) also made the same discovery claims.  In addition, the report stated they were turned over to law enforcement.

“…the Special Investigative Council discovered the most important documents in this investigation – emails among former President Graham B. Spanier, former Senior Vice President-Finance and Business Gary C. Schultz and Athletic Director Timothy M. Curley from 1998 to 2001 – relating to Sandusky’s crimes.  The Special Investigative Counsel immediately provided these documents to law enforcement when they were discovered.”

While the media, and therefore most of the public, never challenged Freeh’s statements about discovering the emails and providing them to law enforcement, common sense and the evidence made public during legal proceedings reveals these statements may not be true.

First, it is simply common sense that PSU legal officials would not allow Freeh’s team to hand over PSU emails to law enforcement without first conducting an attorney-client privilege review.  

There could have been any number of sensitive matters in the (alleged) 3.5 million emails (allegedly) reviewed by Freeh’s team.  This would be especially true for Schultz, who oversaw the campus police as well as the overall finances of PSU – to include various construction and business deals.  Moreover, those 3.5 million emails may have implicated other PSU officials in the Sandusky matter.  As such, there is little chance Freeh released these without a review of them by PSU's legal team.

The evidence from the legal proceedings in the Curley, Schultz, and Spanier cases revealed that neither Freeh nor the SIC were mentioned as having any role in the discovery of the critical emails or in providing them to the Pennsylvania Office of Attorney General (OAG).

OAG: No Mention of Freeh’s Role With Emails

Current Pennsylvania Attorney General (AG) Bruce Beemer stated (during the preliminary hearing) that the February 2001 email chain was the only evidence needed to prosecute the failure to report case against Spanier, Curley, and Schultz.  However, AG Beemer has never established or otherwise stated that Freeh provided that email chain or any other email to OAG. 

OAG forensic expert, Braden Cook, testified to a number of dates when he received email evidence, however he made no mention of Freeh or the SIC providing them.  

In summary, the OAG did not establish an exact date when the emails were discovered, who discovered them, and when they were first obtained by the OAG's office.

Cook’s Confused Testimony

Interestingly, each time Cook  testified about the emails, he stated they were in provided in 2011, before correcting the date to 2012.  Screen shots of his July 30, 2013 testimony follow.

According to Cook, he received a disk (DVD) containing the emails of Gary Schultz in March of 2011 (at 66), on March 23, 2011(at 106), on March 23, 2012 (at 107) and a hard drive from a tape backup on July 2, 2012 (at 70).   He also testified (at 68) that the emails from the disk were printed out and used for the legal proceedings.

Certainly it is possible that Cook actually knew the emails were turned over by PSU in 2011 -- and that the most important emails (from Schultz) were recovered in March of that year --  in response to Grand Jury Subpoena 109 (issued on March 24th).   Subpoena 109 requested the emails of Curley, Schultz, Spanier, Joe Paterno, Tom Harmon, and others dating back to 1997.

However, the confusion by Cook on the year of receipt may have been more significant than the legal defense team of Spanier believed, who was working under the assumption that Freeh told the truth about his discovery of the emails in 2012.

Corro Stated Emails Turned Over in 2011

On July 29, 2013, PSU Information Technology (IT) forensics expert John Corro testified that former PSU General Counsel Cynthia Baldwin approached him in March 2011 and instructed him to search the email accounts of Curley, Schultz, Spanier, Joe Paterno, and Mike McQueary.   This information is consistent with the requirements of Subpoena 109.

Corro testified (at 89) that he was able to obtain the the relevant emails (back to 1997) and provided them to Baldwin on three USB keys in March or April 2011.   One USB drive contained all the emails from the men’s accounts.  Two other USB drives contained copies of the specific searches requested by Baldwin (Corro at 90, 91).  

Baldwin, at Spanier’s colloquy on April 13, 2011, told then Supervisory Grand Jury Judge Barry Feudale that she would provide the emails on USB drives, giving one copy to the OAG and one to Judge Feudale.  Baldwin stated the emails would be turned over by Friday, April 15, 2011.

Cook had no involvement with the collection of the emails and IT information related to Subpoena 109 because he didn't participate in the investigation until November 2011. At this point in time, the OAG has not brought forth a witness that was involved in the actual receipt of the USB drives.  Based on Baldwin's testimony, the persons who received the USB drives were Judge Feudale and either Deputy AG Jonelle Eshbach, Frank Fina, or Agent Anthony Sassano.

Feudale, Fina, Sassano, and Eshbach should have to testify about the emails and other evidence they received from PSU during the Sandusky investigation.  Sassano previously testified that Duane Morris, hired by PSU to assist Baldwin, provided him with a copy of the so called secret file of Gary Schultz.  This file contained printouts of some of the emails and information related to Sandusky's retirement.

Like Cook, Sassano never established a date for when the Schultz file was discovered. In addition, Sassano did not establish the date he received the file from Duane Morris, however one of the pages within the file (see Freeh Exhibit 3H) states it was received on February 28, 2011. 

If that is the date that Sassano received the Schultz file, then Freeh's statement that his discovery of the emails corrected the date of the McQueary incident is obviously false.  

Given all of this evidence, it is highly probable that the OAG had received the emails related to 2001 in some shape or form long before Freeh's claimed discovery in March 2012.

Moulton Report Stated Emails Turned Over in 2011

According to the Moulton Report (at 158), the Pennsylvania State Police (PSP) received a thumb drive containing the Penn State emails on July 7, 2011.  

The report did not specify who provided the emails to the PSP, however it is likely that the OAG provided the thumb drive to Rossman.  It is also quite obvious that the SIC and Freeh didn't, because they weren't hired until November 2011. 


The Graham Spanier v. Penn State case and counter suit is in its early stages.  No evidence has been admitted and many questions remain about the discovery and authenticity of the email evidence in this case.  

If PSU stands by the story that the "2012 Discovered Emails" were indeed discovered by Freeh and turned over to law enforcement, then whatever law enforcement agency that has the electronic files should have to produce them.  On the other hand, if Freeh contends he only provided printed copies, then that evidence should be dismissed out of hand because printouts cannot be authenticated.

While Cook testified that the emails in the case were authenticated, the procedures he described did not involve checking the "invisible" header information to ensure the emails were not subjected to tampering. 

Given the importance of the email evidence to Spanier’s criminal and civil cases,  the legal team of Spanier should immediately make discovery requests of all the electronic media (i.e., USB drives, hard drive, thumb drive, and disk/DVD) containing emails recovered during the Sandusky investigation and have the relevant files authenticated by checking the "invisible" headers.  

If this case goes as did the lawsuits filed by the victims, a judge’s award of discovery of this information to Spanier's legal team will likely result in PSU moving to drop or settle the case.  

Hiding the truth has always been the most important thing for PSU in the Sandusky scandal and history shows that the University will pay hundreds of millions of dollars to make sure the truth is never known.


  1. Replies
    1. Thanks for the kind words.

      This post was a bit long so I left out the FACT that Rod Erickson's personal notes imply that the Schultz file was recovered by PSU prior to January 31, 2012. As such, PSU had to know the date of the McQueary incident was 2001 -- but never corrected the record.

      Erickson's role in this scandal appears to involve some rather big lies about what people knew and when they knew it.

  2. Thanks Ray, again. How can so many lying buffoons keep getting away with this farce?

    1. Dot,
      Many of those lying buffoons are PA's judges and prosecutors. When the liars are running the system, the system works for preserving the lies.

    2. If my memory is correct, Bruce Heim stated that the Second Mile Executive Board was notified about PSU's concern about JS's behavior, but Bruce advised against notifying the entire Board of Directors. This would mean, at the minimum, that Corbett fund raiser Bob Poole and State Senator Jake Corman were briefed (and probably related the incident to friends and family). It is rather obvious why Corbett put the SM off limits to investigators. If Executive Board members were faced with liability for allowing JS to have continued access to children, they might start squealing like stuck pigs, and I can only imagine where fingers of suspicion might be pointed. In any other state than PA, the press would have their A team gumshoes all over this.

    3. Gregory,
      In 2001, I believe the incident was discussed between Raykovitz, Heim and one other "unknown" Director. My guess is that "unknown" Director was Bob Poole.

      In 2009, the entire Board of Directors discussed Sandusky's pending investigation and decided against telling ANYONE. Corman was on the Board at the time. PennLive lied about Corman's involvement, stating he didn't join the TSM Board until 2010.

      I agree that Corbett and Noonan steered the investigation away from TSM -- not because of 2001 -- but because of the decision in 2009 and that kids got abused while Sandusky was being investigated.

      Ganim and PennLive made sure the stink didn't get on TSM, Corman, and other power players. Scapegoating PSU was part of the quid pro quo for the leaked GJ information.

    4. Ray - Most of what you say makes sense although I'm still not convinced OAG leaked GJ info to Ganim. She named a Central Mountain High school official as a source for victim 1's allegations. She also had an unnamed Second Mile board member as a source. Ganim only named three GJ witnesses, Paterno, Curley and Schultz, but nothing about their testimony. She also never mentioned that there was an adult eyewitness to Sandusky abusing a boy. If the OAG wanted to sensationalize the case, why didn't they release that bombshell?

      Once she knew Sandusky was being investigated she could have staked out the courthouse to see if any bigwigs showed up. A lot of people could have spotted Paterno around the courthouse since he was so well known.

      If OAG wanted to leak GJ info to Ganim, why did they wait until the case was picking up steam? It would have made far more sense to leak much earlier when the case was stalled and publicity might have prompted other victims to come forward.

    5. Tim,
      According to my source, Ganim spent most of her time in Strawberry Square outside the grand jury room. She told Vanity Fair that she heard about Sandusky in 2009 and worked the case in her spare time. Interestingly, she, like the POLICE and OAG never bothered to look into the public info about TSM. Instead, she claims she broke the case by hanging out on football message boards. That chatter began in 2010 after Sandusky announced his retirement.

      As most know, it was Patriot News sportswriter David Jones who was on the message boards -- not Ganim.

      The GJ leaks started in October 2010 -- right after Corbett saw Spanier with Onorato.

      The Patriot News admitted it had the 1998 Police Report as early as January 2011 -- right around the same time the OAG alleges it received it.

      The OAG selectively leaked information as it needed to. The goal wasn't to bring Sandusky to justice but to harm Graham Spanier.

      When Ganim broke the story of the grand jury, Corbett had just decided to go after Spanier -- and according to the evidence, the goal was to get Tim and Gary to flip on Spanier. It is obvious from the grand jury questioning that they were not after Paterno -- and were trying to get Tim and Gary to admit Spanier was involved in all the decisions about Sandusky.

      If you look at the timing of Ganim's scoops, they tend to occur whenever Corbett or the OAG wanted to put out information. For example, after McQ leaked additional details to the press in early November and stated he talked to police, Ganim's scoop about McQ's handwritten police interview came out to refute his claims.

      At the time of Ganim's March 2011 story on the GJ investigation, I believe that Corbett, et al, still weren't 100% convinced they were going to go through with the prosecution of Sandusky and that's why the bombshell evidence wasn't leaked.

      As it turned out, after exploring other possible ways to take out Spanier, the realized the only way it could be done without implicating some other important people at PSU was to make it about athletics -- and drag Paterno into it.

  3. Good job.

    The issues about email evidence seem very important to Spanier v. Freeh rather than Spanier v. PSU or PSU v. Spanier.

    I think the PSU countersuit against Spanier is just a PR move. The statute of limitations for breach of contract lawsuits in PA is 4 years, or less if so specified in the contract.

    PSU seems to have simply waited too long to file a lawsuit for alleged breach of contract in 2011 or before. Even if a judge is generous and starts the clock running when the Freeh Report was released in July, 2012, PSU still didn't file within 4 years.

  4. Given the stupendously inept Sandusky investigation, maybe Freeh was first to point out the 2001 emails to prosecutors in 2012.

    If prosecutors were aware of the 2001 emails in April 2011, then why wouldn't they have used them to levy additional charges against Curley and Schultz and charges against Spanier in Nov. 2011?

    1. Tim,
      The emails found in April 2011 didn't say what the emails "found" in 2012 did. In other words, the emails were altered to implicate Spanier and Paterno.

      I covered this pretty extensively in an earlier post, however, the significance of Subpoena 109 (issued in March 2011) asking for emails back to 1997 was that they were collected by the time Baldwin and Spanier showed up at the grand jury. At that session, Fina argued for emails from 1997 and back and justified it by stating they were looking for coded language -- as was found in the 2001 emails.