Wednesday, November 10

10 Years Later: Unfinished Business of Sandusky Scandal

Freeh should have to pay back over $8.5 M plus damages to the University

In my last post, I discussed the long overdue action of naming the football field as Paterno Field at Beaver Stadium as a means of honoring legendary coach Joseph V. Paterno.

But that isn't the only unfinished business of the Sandusky Scandal.

Numerous actions should take place in order to right the wrongs and hold people accountable for their dishonesty.    While the list of villains of this scandal is long, there are some who can be realistically held accountable for their wrongdoing.  Unfortunately, there are others who will walk away from the scandal without getting the punishment they deserve.

First, let's focus on those who can realistically be held accountable -- and former FBI Director Louis Freeh is at the top on the list.

Louis Freeh

Louis Freeh was paid over $8 million dollars to conduct a "an independent, full, and complete investigation into the recently publicized allegations of sexual abuse at the facilities."  

Freeh did not fulfill this requirement because he provided only cursory mentions of the alleged on-campus crimes by Sandusky against Victims 3, 4, and 7 that were publicized in the November 2011 grand jury presentment.   The November 2011 grand jury presentment was published by every major newspaper in the United States.

According to the amended Bill of Particulars, these crimes took place between 1994 and 2000 in the East Area Locker Rooms and the Lasch Building.      

Freeh's more in-depth (but certainly not complete) reporting began with the crimes against Victim 6 that took place in 1998, but ignoring the crimes that were taking place simultaneously against Victim 4, as well as not discussing the crimes that took place before 1998 against Victim 7.  Victim 3's abuse from 1999 until 2001 was also not discussed in any detail in the Freeh Report.  

The exclusion of the details of those crimes on campus was obviously intentional because neither Joe Paterno nor the Penn State administrators had knowledge that they occurred.   The fact Freeh omitted Victim 4 trial testimony that other football coaches (e.g., Fran Ganter, Dick Anderson, Tom Bradley, etc) had observed him showering with Sandusky provides rather indisputable evidence that Freeh's investigation was a "witch-hunt" against Paterno, Spanier, Curley, and Schultz.   

The only mention of Victim 4's abuse (by Freeh) was an incident that took place in San Antonio, Texas that the Alamo Bowl -- which, contractually, was outside the scope of the report. 

As such, the Freeh investigation was not full and complete because it skipped over numerous highly publicized incidents of the Sandusky case.  

Aside from being incomplete, the report was far from independent. 

diary kept by a key member of the Freeh investigative team clearly showed that Freeh did not conduct an independent investigation and was receiving secret grand jury evidence from the Pennsylvania Office of Attorney General (PA OAG).

In summary, Freeh did not fulfill his contractual obligations which resulted in the submission of an incomplete and biased report that caused exceptional harm to the University.

Not only should the University get it's money back, but it should file a lawsuit for pecuniary damages caused by Freeh's investigation -- to include, but not limited to,  recovery of $60 million in fines levied by the NCAA, lost football revenue, lost revenues (fees) from the University application process, and decreased charitable donations.

PA OAG Officials

There were/are numerous officials in the PA OAG who either need to be punished or require additional punishment for their roles in the scandal and former AG turned Governor Tom Corbett tops the list.

Tom Corbett
Corbett should be persona non grata at PSU for causing the scandal.

As a result of his vendetta against Spanier, Corbett suffered the humiliation of being the first incumbent governor to be defeated in his re-election bid.   But that's not punishment enough.

Unlike other former OAG officials, Corbett was smart enough to not leave a trail of evidence in his wake that could be used to file ethics charges or legal charges.    

Given that situation, a fitting punishment for Tom Corbett would be for The Board of Trustees to designate him as persona non grata on Penn State properties. 

Josh Shapiro

Shapiro: Must be DEFEATED for his practice of unequal justice under the law

Current AG Josh Shapiro also deserves punishment for his hypocritical persecution of PSU officials.  

While Shapiro continuously ranted that "no one is above the law" while prosecuting Spanier, Curley, and Schultz, he never bothered to charge Dr. Jack "Just Wear Swim Trunks" Raykovitz for his inaction when it came to Sandusky showering with children.

Shapiro was initially elected as AG by running on the promise to investigate The Second Mile charity and received the endorsement of the PSU alumni group PS4RS.   Once Shapiro got in office, he never held up his end of the bargain. 

There is little doubt that Shapiro was using (and will continue to use) the Penn State case as a means of public relations and will continue to lie about his concern the welfare of children. 

The only person's welfare that Shapiro is concerned about is his own. 

Penn Staters should unite to defeat Shapiro in his run for Pennsylvania governor

Frank Fina

Fina needs a return visit to the ODC misleading the court about PSU evidence.

Frank Fina has already been disciplined by the Pennsylvania Office of Disciplinary Counsel (ODC) for making misleading statements to the court regarding the limits of his questioning of then-PSU General Counsel Cynthia Baldwin.    Fina received a suspension of his law license for one year and one day for that particular transgression -- but the list of possible ethical violations is longer.

The McChesney diary confirmed that Fina (and others) misled the court about the discovery of the 1998 and 2001 email evidence and the evidence related to the so-called "secret file" of Gary Schultz.  The diary contains a statement purporting to be from Fina where he had not alerted the defense counsel to the existence of the emails until he "had the right chain of custody."   Fina, by omission, allowed the defense counsel to believe that Louis Freeh discovered the 1998 and 2001 emails in March 2012.   Meanwhile, internal discussions of the Freeh investigators revealed that the 1998 emails had been discovered earlier and were distributed to members of the PSU Board of Trustees in February 2012. 

Similarly, the diary stated that the so-called Schultz file originally contained many more documents than those provided and that copies of the file were shared among investigators prior to its official discovery in April 2012.

These two incidents pertaining to apparent falsification of the dates of discovery of evidence are an absolute abuse of the legal system, but it's even worse considering that this was secret grand jury evidence that was not to be shared except with the court and defense counsel.  

Fina also manipulated the dates of crimes in an apparent effort to cover up that the prolonged Sandusky investigation left children vulnerable to abuse.  He petitioned the court to amend the February 21, 2012 Bill of Particulars (filed by Eshbach) to incorporated newly discovered information to the criminal information.  In reality, Fina revised the May 18, 2012 Bill of Particulars in order to cover up that Victim 9 was victimized by Sandusky while the criminal investigation was in progress.  Victim 9 testified his abuse continued into the summer of 2009. 

In addition, he changed the dates of victimization for Victim 3 as between July 1999 and December 2001.  Victim 3 testified that his contact with Sandusky occurred when Sandusky was an active coach and shortly after he retired in early 2000.   Given that victim didn't support the dates, it appears that Fina made them up implicate PSU officials for endangering the welfare of Victim 3. 

Finally, in April 2011, Fina apparently misled the court about an alleged incident occurring on campus in 1984 in order to obtain a subpoena to conduct a "fishing expedition" for email evidence prior to 1998.  At the time, there was no police report, child welfare report, or any other information to support his claim of something happening in 1984.   

I could go on, but suffice it to say, Frank Fina has yet to answer for all of his questionable actions in the Sandusky-Penn State scandal and needs to return visit to the ODC.

Jonelle Eshbach

 Eshbach should go before the ODC for her misleading statements to the court. 

Jonelle Eshbach was the author of the now infamous November 2011 grand jury presentment.  Similar to Baldwin, Eshbach made truthful but misleading statements about the evidence in the Sandusky case, especially pertaining to the 2001 shower incident.  

When alleged eye (ear) witness Mike McQueary confronted Eshbach over her misleading statements, she informed Mike he couldn't do anything about it because it could compromise her case.

In addition to those incidents, Eshbach teamed with Fina to mislead the court about the email evidence in the case and was the likely leaker (in the fall of 2010) of the 1998 University Park police report to the Harrisburg Patriot News' Jan Murphy.    Fina and Eshbach would later testify that they set a trap to catch the leaker, but were unsuccessful.

Jonelle has a lot of questions to answer.

Bruce Beemer

Beemer continued the PSU email deception and should answer to the ODC.

It comes as no surprise that Bruce Beemer is now a Judge in Pennsylvania's corrupt legal system.  Before becoming a judge, however, he was the lead prosecutor on the Curley, Schultz, and Spanier cases. 

At the July 2013 preliminary hearing, Beemer used smoke and mirrors in order to never tell the court and the defendants who discovered Schultz's PSU emails and when they were discovered.   You can read the transcripts backwards and forwards, but there is no date for the original discovery of those emails.

At best, the hearing testimony of PSU's John Corro places the discovery in March or April of 2011.

The AG's IT witness, Braden Cook, testified that he recovered emails that were supposed to be accounted for, but were not in the inventory in March of 2012.  He contacted the AG's IT team to get a copy. At a minimum, this is a chain of custody issue.  Cook never testified who provided the files to the AG originally.

Beemer's questioning of Cook and Corro avoided asking when the emails were originally recovered but Cook's testimony referencing the March 2012 recovery date was in synch with Freeh's public statements of his team finding the emails in March of 2012.    Apparently, the defense attorneys never questioned the date because of Freeh's deception.

The bottom line is that Beemer continued the email ruse and needs to answer for it before the ODC.

Patrick Schulte and Laura Dikta

Schulte (left) and Ditka (middle) misled the court about PSU evidence.

When Josh Shapiro took his victory lap for the highly questionable the misdemeanor conviction of Graham Spanier, prosecutors Patrick Schulte and Laura Ditka mugged for the cameras along with him.

While it seems that the karma has already taken care of Laura Ditka,  Patrick Schulte is still out there practicing law and likely doing so by bending the rules of evidence. 

Ironically, Ditka and Schulte's presentation of some critical evidence in the Spanier case conflicted with the evidence in the Freeh Report and in other court documents.

In order to make the case that Schultz was directing the actions of Curley, Ditka and Schulte alleged that  on February 25, 2001, Schultz met with Curley to discuss what to do about Sandusky showering with the a youth.   Ditka alleged that after the meeting, Schultz returned to his office and printed out a list of the directors of The Second Mile, then turned the list over and wrote the now infamous 3 step instructions on the back of it. 

3.  Tell Chair of Second Mile

2.  Report to Dept of Welfare

3.  Tell JS to avoid bringing children alone into Lasch Bldg.

       * who's the chair??

However, the Freeh Report (page 71) reported:

"On February 12, 2001, at about 11:10 a.m., Schultz researched the internet about the Board members of the Second Mile, the charitable organization Sandusky founded."

The Freeh Report source of this statement was Schultz's notes (303 Schultz confidential file notes (5112)

Other legal filings in the case confirm that the print out of The Second Mile members was indeed printed on February 12, 2001 at 11:10 a.m.  according to the date/time stamp on the lower right corner of the page. 

So how was it that Ditka and Schulte could present this printout at trial and say it was printed on February 25, 2001?   The only way would have been to redact the date from the lower right corner.  Note that all three pages pertaining to The Second Mile in evidence contain the date/time stamp, so this was not simply an error made when copying the page, but rather an intentional redaction. 

This was not the only misleading part of the Commonwealth's presentation -- but I'll save the worst for the ODC.   Patrick Schulte was the star of that one.

Penn State University

Most of the miscreants from the PSU Board of Trustees will never be held to account for their roles I the case, however there is one PSU official who can still be held to account for misdeeds in the Sandusky Scandal -- and that would be former General Counsel, Cynthia Baldwin.

Cynthia Baldwin

Baldwin also needs a return visit to the ODC to answer for misleading the court.

Former PSU General Counsel (and former PA Supreme Court Justice) Cynthia Baldwin received censure from the ODC for misleading Curley, Schultz, and Spanier about her legal representation.  While the three administrators believed Baldwin represented them, she gave intentionally misleading statement to the grand jury about her representation of Curley and Schultz.  In Spanier's case, she made it clear to the grand jury she was NOT representing Spanier -- but never informed Spanier of the same.

Despite these clear deceptions, the ODC essentially said that Baldwin was stupid, but not a menace to the legal world.

My analysis of the evidence concludes that the ODC was wrong.  

While Baldwin made scores of misleading statements when she testified before a grand jury on October 26, 2012, her exchange with Fina regarding an alleged thumb drive given to Judge Fuedale is really something to behold.  It is a case of telling the truth, but being very misleading. 

Spanier alleged that Baldwin had provided a thumb drive of his emails to Judge Feudale during his April 2011 grand jury appearance.  When Spanier asked Baldwin what she was doing, she purportedly said that the thumb drive contained his emails.  Spanier then asked, if it was all his emails back to 2004, to which Baldwin purportedly said, "Yes.  All of them."

However, according to testimony from the July 2013 preliminary hearing, the PSU IT department conducted searches in March/April 2011 and provided Baldwin with 3 thumb drives -- two containing results related to specific search terms and one containing all of the emails from searches of the folders of Curley, Schultz, Spanier, McQueary, and Paterno back to 1997.   However, Spanier's data only went back to 2004 because the email server was upgraded that year and Spanier's emails were not archived. 

Here's the interrogative between Fina and Baldwin at her grand jury appearance (my emphasis added).

Fina:  "Okay.  Alright.   I'll start at the end actually.  You have -- you did not hand over a thumb drive to the Judge.   He was there to testify; is that correct?"

Baldwin: "If I had done that you probably would have hit me because giving something to the judge and not to giving it to you would have been really bad and the judge would have hit me too."

Fina: "That is true."

Baldwin: "And there was no handing over of any thumb drive containing his entire history of emails.  I don't know where the 2004 came from.  That didn't happen."

In summary, Baldwin told the truth because she did not turn over a thumb drive containing Spanier's entire history of emails, but rather a thumb drive containing all of the recoverable emails from all PSU officials named on the Subpoena. 

Getting to the bottom of the email deception remains a critical part of the case and the ODC definitely needs to investigate it. 

Baldwin should also return to the ODC to answer for this and other alleged misrepresentations to the court. 

In summary, these are the individuals who --  in my opinion -- can still be realistically held to account either legally or ethically for their misdeeds in the case.    

That said, the list of others who still deserve a karma visit is long and it includes, but is not limited to, Rod Erickson, Ken Frazier, Karen Peetz, John Surma, and Mark Emmert.

Anyone I missed? 

Let me know in the comment section.   Also, how would you hold those individuals to account?

--- Ray Blehar, November 10, 2021 at 12:38 PM EST




    Terry Engelder and Ron Smith
    Emeritus Professors at Penn State

    A decade ago, a reporter for the Harrisburg Patriot-News revealed the investigation of a prominent Penn State assistant football coach, Jerry Sandusky. The headline read: “Sandusky Faces Grand Jury Probe.” The story came through an unlawful and probably purposeful leak of grand jury material. A few months later, on November 4, 2011, the Pennsylvania Office of Attorney General (OAG) released its presentment, accusing Sandusky of sexual contact with eight boys. Ten years later, two of us question the legal process which led to a prison sentence of 30 years for Sandusky. In the wake of a decade-long retrospective of the most prominent scandal in Penn State’s history, it appears that Pennsylvania’s jurisprudence system was far from perfect.

    Although the post-conviction appeal process has denied it for a decade, we believe that a lack of due process and legal chicanery led to the miscarriage of justice for Jerry Sandusky. The tide is changing slowly for the rehabilitation of four who were involved in the administration of Penn State athletics, three of whom are still living, as Paterno died before the Sandusky trial. More importantly, there is a movement to give real due process to Sandusky, something that was lacking in the Pennsylvania OAG’s investigation through 2011 and the subsequent trial. The facts behind three failures to honor due process stand out.

    First, Senior Deputy Attorney General, Jonelle Eshbach, wrote a misleading presentment which charged Jerry Sandusky with the abuse of a boy on Penn State property. Eshbach changed whistleblower Mike McQueary’s testimony by wrongfully claiming that McQueary saw a boy “being subject to anal intercourse by a naked Sandusky” in a Penn State shower room. These words led to a rush to judgment, the political pressure to convict, and the general moral hysteria surrounding a crime judged by public opinion as horrible. McQueary attempted to correct the record but Eshbach demurred.

    Second, Chief Deputy Attorney General Frank Fina, Eshbach’s boss, eventually had his law license revoked for unethical behavior during grand jury hearings regarding the Sandusky case. In suspending his law license, the Pennsylvania Supreme Court judged that Fina was, “someone who cannot or will not separate right from wrong.” When preparing one witness for grand jury testimony, Fina said, “Mike (McQueary) never told anyone that he saw anal intercourse.” In one of his egregious failures, Fina made no attempt to correct the materially false statement in the OAG’s presentment written by Eshbach and approved by Fina, her boss.

    Third, the investigation by the OAG and its agents used a theory of repressed memory to show Sandusky had abused boys. This controversial theory is that a memory of traumatic sexual abuse can be blocked and then recovered under intense ‘therapy’ or blunt interrogation. Experts in the field, including Professor Elizabeth Loftus, have argued that repressed memory is unlikely because trauma remains vivid and is difficult to forget. The OAG searched for a repressed memory in several hundred adults and one adolescent who were all children in Sandusky’s Second Mile program. When first interviewed, none had a memory of sexual abuse. The adolescent was badgered, coaxed, and cajoled for months before agreeing with the authorities that he was sexually abused. Even then, the adolescent’s testimony was not credible to the grand juries prosecuted by Fina and Eshbach.

    The combination of memory recovery and a false narrative in the presentment affected public opinion, through media sensationalism, and probably tainted the jury pool. Such violations of both the law and ethics raise great concern about the legal actions taken against Sandusky. These irregularities should be enough to justify a retrial for Sandusky to correct the lack of due process arising from materially false statements and unethical behavior by Pennsylvania’s OAG.

    1. While justice hasn’t been served, the authors are incorrect to state that repressed memory therapy was used by the investigators who questioned the victims.

      These statements in the story are completely false:

      “However, the controversial and scientifically rejected theory of repressed memory used by interviewers was hammered into the minds of at least some of the “victims” after being coaxed and badgered for months before agreeing with the authorities that there was sexual abuse. Statements of the discredited “recovered memory” had a profound impact upon the outcome of the Sandusky trial.”

      The only victim who alleged that he underwent therapy stated he went to group therapy and the discussions in the sessions helped him recall similar situations. However, the worst crime that Sandusky was found guilty of pertaining to this victim was attempted indecent assault. Sandusky was charged with that crime PRIOR to the victim undergoing therapy.

      Now, there were dirtbag attorneys involved who tried to get their clients to admit more happened than really happened, but only ONE victim lawyered up before being questioned by police. A few of the very worst allegations made by this victim (#4), were dismissed by the judge prior to trial because they did not meet the legal standards for the crimes.

      Sadly, these dirt bag lawyers exaggerated versions of events made it into the settlement process. And dirt bag Ira Liberty didn’t question anything. He squandered PSU’s money.

      I don’t believe a retrial for Sandusky would change anything, however a retrial would likely NOT include McQueary as a witness because Sandusky cannot be tried a second time on the acquittal for rape. In addition, the entire purpose of McQs testimony was to CONVICT Curley, Gary Schultz, and Graham Spanier in the court of public opinion. Now, that Tim, Gary, and Graham have been abused by the justice system, the AG has no reason to put McQ on the stand and have him subjected to cross examination with all the facts that are now known about his multiple accounts of the shower incident.

      Shapiro should have had to retry Graham, but as usual, sleaze bag Shapiro went shopping for a friendly, corrupt judge to have the lower court decision overturned. That's one of the reasons Shapiro needs to be kept from higher office.

  2. Hi Ray:

    I'd be glad to carry on a discussion with you as long as you agree with me that we are on the same team, working toward the same goal in searching for truth and reconciliation for all concerned with the Sandusky scandal including Penn State, JoePa, the administrators, and Jerry Sandusky. But first, if you have read our post above, please tell your readers where in that post do Ron Smith and I write, "However, the controversial and scientifically rejected theory of repressed memory used by interviewers was hammered into the minds of at least some of the “victims” after being coaxed and badgered for months before agreeing with the authorities that there was sexual abuse?"

    Sincerely, Terry

    1. Hi Terry,
      My apologies for the error.

      I was viewing the post on my iPhone and didn't read it closely. I assumed that you reposted the opinion piece (from you and Ron) that was published in the Centre Daily Times on November 8th.

      As such, I simply copied and pasted my response to the CDT column.

      That said, the paragraph on repressed memory theory you wrote in the comment section on Nov 12th is MOSTLY FALSE.

      I will break it down for you:

      FALSE: "Third, the investigation by the OAG and its agents used a theory of repressed memory to show Sandusky had abused boys. "

      Rationale: This technique was NOT used in the investigation and had no impact on the trial. The record shows that there were no additional charges filed against Sandusky from the time of the grand jury to the trial, therefore RMT or recovered memories had no impact on the case.

      Neither True nor False: "This controversial theory is that a memory of traumatic sexual abuse can be blocked and then recovered under intense ‘therapy’ or blunt interrogation. Experts in the field, including Professor Elizabeth Loftus, have argued that repressed memory is unlikely because trauma remains vivid and is difficult to forget."

      Rationale: Of the two victims who allegedly underwent RMT, neither had a traumatic experience with Sandusky. In fact, the majority of victims experiences in the Sandusky case were not traumatic because Sandusky used a technique of grooming or gradual acceptance of his sexual advances. Those victims (1-8) were not forcibly raped by any means nor did they undergo trauma. Two victims (9 & 10) alleged traumatic experiences but did not state they had recovered memories.

      FALSE: "The OAG searched for a repressed memory in several hundred adults and one adolescent who were all children in Sandusky’s Second Mile program."

      Rationale: While the OAG & PSP contacted over 100 individuals with former associations with TSM, thousands of kids went through the charity. Of those thousands, Sandusky identified just a handful for victimization. Needle in a haystack. However, it is a fact that the OAG NEVER interviewed a child that had showered with Sandusky on multiple occasions in 1998 and ignored other similar leads.

      FALSE: "When first interviewed, none had a memory of sexual abuse."

      Rationale: Fisher reported that Sandusky indecently assaulted him at his first interview. That is a sexual offense (indecent assault). That said, it is true that Fisher incrementally disclosed the level of abuse. Victims 9 and 10 also alleged sexual abuse the first time they were interviewed.

      MISSING CONTEXT: "The adolescent was badgered, coaxed, and cajoled for months before agreeing with the authorities that he was sexually abused."

      Rationale: This is often alleged about Fisher, however, there is a CY-48 form based on his initial interview confirming indecent assault.

      FALSE: "Even then, the adolescent’s testimony was not credible to the grand juries prosecuted by Fina and Eshbach."

      Rationale: Emails from March-July 2010 CONFIRM that the grand jury wanted to indict Sandusky based on the sole testimony of Fisher.

      The fact of the matter was that the OAG knew about the 1998 (NINETEEN NINETY EIGHT) PSU shower incident in June of 2009 but never followed up on it until January of 2011.

      The bottom line here is that after the state (DPW) cleared Sandusky in 1998, the report made by Penn State in 2001 was "screened out" by Centre County CYS because it sounded so similar to the 1998 incident. This happens ALL the time in child protective services -- and that's one of the things that was covered up in this case.

      Again, my apologies. If you would like to discuss further, let's do so by email or phone.

    2. Terry,
      Correction...the comment you posted here on November 11th, not November 12.