Sunday, February 17

Complete Analysis of Freeh 2.6.2019 Statement

Ray Blehar
February 17, 2019, 9:28 AM EST, Updated 2/18/19 at 2PM EST

Former FBI Director Louis Freeh's statement regarding the Penn State University's (PSU) alumni-elected trustees' critique of the Freeh Report uses the same faulty reasoning he used back in 2012 in an attempt to defend the his report's findings.

The arguments made by Freeh fit the following descriptions: completely false; mostly false; based on minority, isolated opinions;  rife with hindsight bias; legally insufficient or legally inappropriate; ad hominem attacks on individuals, and inculpatory in nature. 

Recall that the Freeh Report's standard of evidence was that a reasonable person would draw the conclusion based on the evidence.  As you will read below, little to nothing he puts forth meets that standard.


Freeh attempts to take credit for the Freeh Report contributing to court cases that did not rely on evidence gathered during his investigation.  In nearly every instance, the evidence used in the cases was gathered before he ever stepped foot on the PSU campus.   

Sandusky trial: The Freeh investigation provided no material evidence that contributed to Sandusky's convictions thus his contention is FALSE.  That said, the Freeh Report demonstrated that his team ignored much of the testimony and the verdicts at the trial.
    • Contrary to what was written in his report,  Victims 5 and 6 were not assaulted in the Lasch Building.  Sandusky was acquitted of indecently assaulting Victims 5 and 6. 
    • Similarly, the report states Victim 7 was assaulted in the Lasch Building, when in fact he Sandusky not even charged with indecent assault in that instance.  Victim 7 testified that  Sandusky attempted to grope him while they were riding in his car.  
    • Freeh's version of the janitor incident is completely based on the dubious narrative from the grand jury presentment and his investigators notes -- both of which the prosecutors completely steered away from at the trial.
    • Freeh's press conference statement that boys were raped in the Lasch Building likely comes as a result of ignoring (or failing to acknowledge) the acquittal on the rape allegation in the McQueary incident and the dismissal of rape (IDSI) allegations in the case of Victim 4. 
    Curley/Schultz/Spanier:  No evidence gathered during the Freeh investigation contributed to the plea agreements and conviction as it was gathered before he was ever on the PSU campus. 
      • Schultz and Curley pleaded guilty to a single misdemeanor charge of endangerment however nothing from Freeh's investigation had any impact on their convictions.  The pleas were entered in March 2017 and were admissions that they had prevented or interfered a lawful report to the authorities.  That evidence was well established by November 2011, therefore the contention that facts gathered during the Freeh investigation aided in the convictions is FALSE
        • Spanier was convicted on a single misdemeanor count of child endangerment, however none of the evidence used at the trial came as a result of Freeh's investigation therefore the assertion is FALSE.  The emails used at the trial were not collected by Freeh (as he famously claimed) but by PSU IT employee John Corro in April of 2011 (see July 29, 2013 Preliminary Hearing, Volume 2  page 83).  In addition, OAG forensics expert Braden Cook made no mention of Freeh's role in providing emails when testifying at the next afternoon's proceedings.   More details about how the emails were gathered is discussed at Paragraph 9.
        If anything, the results of the Curley/Schultz/Spanier cases obviate the findings from the Freeh report, specifically the ones alleging that they concealed information and failed to report Sandusky to the authorities.  All charges related to those findings were dismissed in 2016 and 2017.

        Next, the fact that PSU officials were convicted of misdemeanor child endangerment legally means that the conviction was isolated to the 2001 incident and none other.  It negates Freeh's highly publicized finding that PSU officials "failed to protect against a child sexual predator harming children for over a decade." 
          Paterno Family Lawsuit: The lawsuit was dropped before a decision was reached therefore Freeh's contention that the court found in his favor is FALSE.  That said, Freeh claiming a dismissal as a validation of his report is quite farcical considering that the Corman v. NCAA lawsuit eviscerated nearly all of the sanctions that were based on the Freeh Report.
            Spanier Defamation: Similarly, this lawsuit was dropped without prejudice based on the conviction of Spanier and can be refiled pending appeal.  That the court found in his favor is FALSE. Prior to the dismissal of this civil lawsuit, Freeh's attorneys submitted legal motions that 23 statements in the Freeh Report concerning Spanier merely reflected the former FBI director's opinions.
               McQueary Defamation:  The case was based on whether or not the former PSU coach was defamed by the November 5, 2011 press release that, according to the plaintiff's attorneys, defamed McQueary by stating that Spanier believed the perjury charges against Curley and Schultz were "groundless" and the men had his "unconditional support."   In addition, the case was based on whether or not McQueary's reputation was damaged by adverse publicity as a result of PSU officials failure to report the 2001 incident to the authorities.  This publicity occurred in November 2011 and had nothing to do with Freeh's investigation.  Neither issue was discussed in the Freeh Report, therefore his contention that this case supports the findings of his report is FALSE.
                McQueary Whistle blower: The evidence used in the whistle blower case did not come as a result of the Freeh investigation therefore the contention is FALSE.  The whistle blower case addressed the adverse actions taken by the PSU administration against McQueary in response to the grand jury presentment and related media reports about the Sandusky case.  The case centered on the loss of McQueary's employment, financial benefits, and future employment opportunities, none of which involved decisions made by Curley, Schultz, and/or Spanier.
                  Clery Act:  In this instance, Freeh is correct that his report identified many of the deficiencies in implementing the Clery Act at PSU.  However his report's specific finding of an atmosphere of non-compliance by the football program was FALSE.  Noncompliance was campus wide.  Next, the record fine resulted from PSU officials retroactively (and wrongly) reporting Sandusky's crimes from 1997 to 2001 that occurred on the PSU campus -- even though most of the crimes were not witnessed by PSU employees and therefore couldn't have even been reported contemporaneously.  Overall, the reference to the Clery Act is MOSTLY FALSE
                    Sandusky Appeal: None of the issues raised in the Sandusky appeal had any relationship to the Freeh Report and thus the contention is FALSE.  The appeal was exclusively focused on errors made by the trial judge, alleged misconduct by prosecutors, and instances purported to be evidence of insufficient representation (incompetence) by the defendant's legal counsel.

                      Paragraph 2: HINDSIGHT BIAS,  FALSE,  LEGALLY INAPPROPRIATE

                      Freeh cherry picked two inappropriate statements from Judge Boccabella to support his argument.  He also uses one of the Freeh Report statements he attempted to have dismissed as an opinion (in the Spanier defamation case) to justify his findings.  Freeh, as usual, omitted a statement from the Judge that that these "were good people who made a terrible mistake."
                      • In the first part, HINDSIGHT BIAS is evident on the parts of Freeh and Judge Boccabella who both presume that PSU officials knew Sandusky was a child sexual predator and understood his actions to be criminal, respectively.   
                      • In the second part, Judge Boccabella's exasperation over the lack of a phone call to police is again rooted in HINDSIGHT that Sandusky's actions were perceived as crimes at that time.   Next, the statement on banning Sandusky from the facilities was FALSE because PSU officials banned Sandusky from using the facilities with children after 2001. 
                      • Finally, the reference to Paterno at the proceeding was LEGALLY INAPPROPRIATE (i.e., an extrajudicial statement) because it involved a non-party.
                      The fact that Freeh, as a former judge and prosecutor, would rely on an extrajudicial statement to justify his work speaks to his integrity (or lack thereof).

                      Paragraph 3: FALSE, ISOLATED OPINION

                      This paragraph reflects, perhaps, the hurried nature of Freeh's response to his critics.  Much like the Freeh Report, it appeared not to have been subject to proof reading or fact checking and relies on a minority, self-serving opinion to make its case.  To wit:

                      Freeh's contention that Senator Mitchell was tasked or hired to monitor the Freeh Report recommendations is FALSE. Senator Mitchell was assigned by the NCAA to monitor the progress of PSU athletics against the twelve recommendations pertaining to the Athletics Integrity Agreement (poor fact checking). 

                      Freeh's contention that Mitchell accepted the report recommendations is FALSE. It was former PSU President Erickson who (publicly) accepted the Freeh Report's recommendations (poor proof reading).

                      Senator Mitchell's scope was expanded to include all of the recommendations from the Freeh Report in 2013 because PSU athletics had substantially completed the twelve recommendations (to fix its alleged culture problem) by October 2012.   If an alleged "culture problem" was fixed in a year, there couldn't have been much of a problem.

                      Senator Mitchell's MINORITY OPINION that a consensus agreed that the Freeh Report reforms are governance best practices appears to be isolated to himself and the Board of Trustee members who have resisted making reforms to its governance structure based on input from experts.  Penn State's governance, especially its lack of transparency, has come under fire by numerous Pennsylvania government officials, including congressmensenators, and the Pennsylvania Auditor General.

                      Paragraph 4: AD HOMINEM ATTACK, FALSE

                      In this instance, Freeh attacks the A7 without knowing the specifics of the report they authored. By definition, this is an AD HOMINEM ATTACK.

                      Next, Freeh statement that the University declined the release of the report due to its questionable origins is FALSE.  From the very beginning, the University has dubiously argued against the release of the Freeh Source material and the subsequent report by the A7 in order to protect employee confidentiality.  Note that the A7 report shows the University's reasoning is unsupported. 

                      Finally, Freeh's allegation that a member or members of the A7 leaked the report to the media is UNSUPPORTED BY EVIDENCE.  The source of the leak has  yet to be identified.  Moreover, the leak could have come from other sources, including employees of the court, other members of the Board of Trustees and those in administrative capacities of the Board, PSU legal counsel employees, or any other PSU employee who may have gained access due to careless handling of confidential files or lax security procedures.

                      Paragraph 5: AD HOMINEM ATTACK, FALSE

                      Again, without the benefit of reading the A7 report, Freeh makes numerous derogatory statements (AD HOMINEM ATTACK) about the alumni-elected trustees and assigns a false motive for their actions. 

                      The A7 report clearly states that the reason for the review of the Freeh Report was to fulfill their fiduciary responsibilities to the institutional because the institution suffered great damage to its reputation and financial losses of over $300 million due to its failure to immediately review the Freeh Report and correct any erroneous information.   To do so would not be the act of "deniers," but would be the normal and expected for any corporate board or governing board that received an internal  or external review of its operations and/or performance.  Freeh's contention that the effort was to convince the public that Paterno and his legacy is wrong is FALSE based on the volumes of evidence produced by the alumni-elected trustees.

                      Freeh's contention that performing such a review would somehow detract from Sandusky's victims is a nonsequitir.

                      In fact, the opposite is true.  A thorough review of the Freeh Report that results to correcting many of its erroneous and misleading statements about Sandusky criminal behavior and the behaviors of the victims, would restore honor to the victims.

                      Paragraph 6: FALSE, UNSUPPORTED

                      In paragraph 6, Freeh contends that the "reasonable" conclusion is that PSU officials failure to act was to "avoid the consequences of bad publicity.  This is FALSE or otherwise UNSUPPORTED THE EVIDENCE  The conclusion relies on a double-hearsay statement from an attorney and a quote purportedly from Spanier's interview with Freeh -- weighed against some 400 other interviews where the subject of publicity wasn't mentioned.
                      • In the first instance, an attorney representing The Second Mile told his investigators that he was told by the charity's former Executive Director that Curley told him to keep the incident quiet over concerns about publicity.  This evidence would never be admissible in a court of law and Freeh most assuredly knows it. 

                      The paragraph also contends that the "Freeh Report made no claim this culture of reverence was unique to Penn State."   That is flatly FALSE and refuted by the argument he makes in the next paragraph of that relies on information that is unique to PSU (i.e., Paterno).

                      Paragraph 7:  FALSE, INCULPATORY

                      The last two sentences of this paragraph are completely FALSE because only one janitor, Ronald Petrosky, testified at the Sandusky trial and none of the quotes above reflect his testimony.   As such, the earlier parts of the statement is FALSE because they do not reflect any evidence from the trial. 

                      The statement should be considered INCULPATORY because it proves that the Freeh Report was inaccurate or otherwise not based on the evidentiary record.

                      Paragraph 8: MINORITY OPINION, INCULPATORY

                      In this instance Freeh makes an INCULPATORY argument by agreeing that the jury got the verdict correct.  The misdemeanor verdict meant that Spanier was only found to endanger the child in the 2001 incident and that there wasn't a pattern of endangerment.   As such, Freeh's statement that Spanier, et al, "failed to protect against a child sexual predator harming children for over a decade" is completely negated.  Next, the MINORITY opinion of a juror did not dispute PS4RS's statement that there was no cover-up of child abuse.   While the juror believed the men conspired to protect Penn State, that argument is irrelevant to PS4RS's position.  Moreover, the the case was not about a conspiracy to protect Penn State, thus the juror did not hear arguments (facts) for or against that position.  The juror's opinion is not based on facts, but the prevailing media story that was repeated over and over again for nearly six years.   

                      Paragraph 9: FALSE

                      The statement makes reference to a column that was posted on that highlighted the findings of the A7 Executive Summary and referred to pages of a draft Freeh Report that showed at least three different instances where investigators stated there was "no evidence" to support conclusions.  Freeh attempts to discredit the column by stating that its "no smoking gun" reference was wrong because the comment twas made before Freeh's (purported) discovery of the emails.  However, the column made that point clear, therefore Freeh's attempt to discredit the column is completely dishonest.  Meanwhile, Freeh made no attempts to defend the other three instances where his investigators commented there was no evidence to support the report's conclusions. 

                      The remainder of Freeh's statement perpetuates the story that his investigators discovered the email evidence, which has been proven to be FALSE based on testimony at various court proceedings.  To wit:  
                      • At the July 29, 2013 preliminary hearing, PSU IT expert John Corro testified that he recovered emails based on a key word search of Spanier, Curley, Schultz, and others.   He provided those emails (on three USB drives) to then PSU General Counsel Cynthia Baldwin in April 2011.
                      • During the colloquy prior to Spanier's grand jury testimony on April 13, 2011, former prosecutor Frank Fina received approval to subpoena PSU for emails prior to 1998 (i.e., from 1997 and back).  In his argument to justify the subpoena, Fina made reference to attributes of the 1998 and 2001 emails, such a coded language/allusions to Sandusky.  Given that Fina was making an argument for emails from 1997 and back, it stands to reason that he already possessed the later emails.
                      • During the colloquy, former counsel Baldwin promised to deliver the emails (from 1997 and prior) to the OAG by Friday, April 15, 2011. 
                      • As Spanier was being sworn in on April 13th, he saw Baldwin turn over a thumb drive to Feudale. Baldwin informed him that the thumb drive contained all of his emails dating back to 2004.  
                      • At the July 30, 2013 preliminary hearing, OAG computer forensics expert Braden Cook testified that he obtained the from a forensic hard drive in the OAG's office and that everything received from PSU came from John Corro and/or Steve Neeper.  Cook made no mention of the Freeh group's involvement. Cook's testimony refutes the Freeh Report's statement that his team "immediately provided these documents to law enforcement when they were discovered." 

                      Paragraph 10: HINDSIGHT BIAS, LEGALLY INAPPROPRIATE

                      As Freeh nears the end of his statement, the argument became almost incomprehensible.

                      Freeh makes the astounding claim that a decision not to charge someone with a crime doesn't exonerate them.  The claim is in direct violation of an individuals Constitutional right to due process.  It is a fact that if a prosecutor does not have sufficient evidence to prosecute a crime, as was the case with Sandusky in 1998, the subject is indeed exonerated.  LEGALLY INAPPROPRIATE

                      Next, 1998 was the first time there was a report of Sandusky's inappropriate conduct with a child.  After a police and child protective services (CPS) investigation, Sandusky's conduct was not considered to be a crime nor did it rise to the level of child abuse.  No one made a clinical diagnosis that confirmed he was a pedophile in 1998.  In fact, that diagnosis did not take place until after his incarceration.  Therefore claims that Sandusky was a known serial pedophile in 1998 are FALSE

                      PSU officials had no reason to believe Sandusky was a threat to children (based on the decision by CPS) and therefore had no reason to believe anyone needed protection.  Also, it is a point of fact that CPS had the role to protect children, not PSU.  The assertion is LEGALLY INSUFFICIENT and rife with HINDSIGHT BIAS.  

                      In the PSU vs. Pennsylvania Manufacturer's Association lawsuit, the University sought reimbursement of payments to claimants who alleged to be victimized between 1992 and 2004.  The court rejected the argument because the University did not have coverage for sexual abuse and molestation for those years.  To claim that the courts ruling was based on negligence is FALSE when it was a simple matter of PSU not having sufficient insurance coverage and the judge's opinions on negligence and what PSU officials should have known were also rooted in HINDSIGHT BIAS.

                      Paragraph 11: FALSE

                      The Freeh Report's introduction purports that it represents a full, fair, and comprehensive analysis of the facts.  Paragraph 11's contention that Sandusky's access to football facilities was essential to committing his crimes is FALSE based on the results of the Sandusky trial.   Victims 1, 7, 9, and 10 -- that's 40 percent of the trial victims -- testified that the crimes against them did not take place in the football facilities.  Moreover, the court found that Sandusky did not assault 60 percent of the victims (i.e., Victims 1, 5, 6, 7, 8, and 10) in the football facilities. Therefore assertion that ending access to PSU's football facilities would have been a reasonable step in preventing his crimes is FALSE.  

                      Next, Victim 4 did not testify to being sexually assaulted by Sandusky while at the 1999 Alamo Bowl and no other trial victim testified to being victimized on a bowl trip.  Sandusky was never charged with a crime in the state of Texas -- the location of the Alamo Bowl nor was he charged with violating the Mann Act (transporting a person for the purpose of sexual exploitation). Freeh's contention about Victim 4 or banning children from bowl trips to prevent sexual abuse has no basis in reality and is FALSE

                      Paragraph 12: AD HOMINEM ATTACK

                      The final paragraph levels an AD HOMINEM ATTACK  on the trustees, alleging they leaked the report and somehow disregarded their fiduciary responsibilities by conducting an investigation into the University's expenditures of $300 million dollars that was caused, for the most part, by the unsupported findings of the Freeh Report.

                      The argument Freeh makes is self-serving as it allows him to put the Freeh Report in the rear view window and not come to the PSU campus for a question and answer session -- as he promised to do.


                      1. Once again Ray, you have exceeded the bar in your analysis of this case. Your work is amazing. Time and again Freeh has shown how incompetent he has been. You could also mention his failings with the Olympic bombing probe and his failures regarding 9/11. I would not hire him to investigate who took the last popcycle from my ice box!

                        1. DMP,
                          Thanks for your comment and the kind words.

                          Freeh's FBI had quite a few high profile gaffes aside from Jewell and 9/11. THere was also the Wen Ho Lee case, the botched investigation into the first WTC bombing, and the misplacing of files in the Oklahoma City bombing case.