The Limits of Memory and Suggestive Memory

The limits of memory and suggestive memory are factors that should not be overlooked in the Sandusky case. 

by
Ray Blehar

After the Ziegler release of the interview of "Victim 2," I got a phone call regarding the statement he made that "incriminated" Curley and Schultz because "V2" said Sandusky told him he'd be getting a call from Tim Curley because McQuery saw them engaged in a sex act. 

In an earlier blog post, I quoted Jim Clemente, who said:  "after ten years or twelve years or thirteen years, you can't remember specific words that you used in a conversation.  And it's irresponsible for somebody to quote somebody ten years or twelve years after the event and say those are the specific words they used in a specific conversation.  That is absolutely not done it's - it's not proper in a criminal investigation at all."

I reminded the caller of Clemente's statement and added that any "quotes" from 2001 can't be considered as an accurate account of what was said based on two things: the ability of memory and suggestive memory. 

Long Term Memory

First, what is retrieved from long term memory is typically part of a schema that your mind has established for retrieving information. For example, I can recall things that I learned from many years ago because my mind has built a system for retrieving it that relies on relationships between the information. New information is added to the schema.  I don't memorize it, rather, I understand how one piece of information relates to the next and my brain has established a schema.  The depth of processing builds the network for recalling it as needed.  

Certainly, there are things retrieved from memory as a matter of rote or repetition.  I like to use the Bill Clinton quote, "I did not have sex with that woman, Miss Lewinsky,' as an example.  This was a quote played over and over again in the news cycle, thus I remember it quite well.  It is doubtful that anything said in 2001 was repeated over and over again by any of the parties involved during that timeframe, thus was not committed to memory by rote.

In listening to Ziegler's interview of Sandusky. it appeared as if he could recall the events of that night in the shower with amazing clarity. He may have been able to do this because he was not recalling that particular incident, but the repeated pattern of horseplay he had with all the victims. Victim 4 reported very similar activities. Ziegler's "V2" and Sandusky worked out and showered on several occasions. It is likely the same activities occurred each time, thus March 1, 2002 or the correct date of Feb 9, 2001 are essentially the same occurrence as retrieved from the schema of memory.  

Ziegler's "Victim 2" recalled what happened that night as well, but it was essentially the schema he had built regarding the multiple times that he had horsed around in the shower with Sandusky.  Obviously, not exactly the same events transpired each time, but the mind had formed a lasting impression of the shower activity that was recalled from long term memory.

However, I highly doubt that he had built a schema for remembering the exact words of a phone call from 12 years ago.   The interjection of new information very likely made its way into the recollection of what was said in that phone call.  That was likely a result of suggestive memory.

Suggestive Memory
On November 9, 2011 (the date of the interview), the person claiming to be Victim 2, just like the rest of us were subject to an unrelenting news cycle that repeated the WRONG DATE of the incident (which he repeated) and that McQueary witnessed a sex act/rape in the shower. This information was interjected into his memory of events, so that when he recalled the phone call from Sandusky he added the information that he had been hearing over the days leading up to his interview.(i.e., McQueary was the reporter - unknown to Sandusky until November 2011- and that McQueary believed he witnessed a sex act) 


This article from LiveScience explains it quite well.

Some of this failure of reliability happens at the scene of the crime, said Maria Zaragoza, a psychologist at Kent State University in Ohio. Things happen quickly; the emotional charge of witnessing a crime may keep people from cuing into important details. If there's a weapon, Zaragoza said, people tend to become hyper-focused on it. They pay more attention to a gun than to the face of the person holding it.

Often, "the information getting into the memory system is very limited," Zaragoza told LiveScience.

The next source of memory uncertainty happens during the investigation. Suggestive questioning can distort memories, Zaragoza said. Each time you relive the crime, either out loud to an investigator or in your own head, that distorted memory is strengthened.

In one famous case, 22-year-old college student Jennifer Thompson was raped at knife point by an intruder in her bedroom. Through her terror, Thompson tried to categorize the details of her assailant's face. She went to the police and worked with an artist to draw a composite sketch. In photo, in a lineup and in court, she identified her rapist as Ronald Cotton.

"I was completely confident," Thompson (now Jennifer Thompson-Cannino) wrote in a 2000 editorial in the New York Times. "I was sure."

But 11 years later, new DNA techniques disproved Cotton's guilt. He'd spent more than a decade in prison for a crime committed by another man, Bobby Poole.

It's likely that working on the police sketch altered Thompson's memory of her rapist's face, Zaragoza said. Later, when she'd picked him out of a lineup, her confidence only grew. Cotton's face started haunting her flashbacks. When she met her real rapist in court, she didn't even recognize him.

What happened to Cotton and Thompson, chronicled in the book "Picking Cotton: Our Memoir of Injustice and Redemption" (St. Martin's Press, 2009), wasn't a weakness of Thompson's, Zaragoza said. Anyone's memory can become twisted with time.

Mike McQueary

So, as Mike McQueary glanced into the shower, was his focus on the victim, who was behind Sandusky or was it on Sandusky (the threat)?

And did the questioning by investigators have an effect on McQueary's memory?  Ziegler's "Victim 2" was a 14 year old boy in 2001, yet McQueary identified the boy as being 10 or 11.  Did the investigators suggest that Sandusky had a habit of showering with young boys that influenced McQueary to state the boy was of a younger age than he actually observed?

These are legitimate questions that aren't posed to make the case that Sandusky is innocent.  As a matter of law, every time Sandusky showered with a minor, he was committing two felonies and one misdemeanor.  However, the science suggests that McQueary's memory of the 2001 incident may have distorted the incident over time or that his recollection of the event was influenced by information provided to him by police during the investigation.   This does not mean McQueary is lying because he may indeed believe that his recollection of events is truly what he saw.  

But I would be willing to be any amount of money that Mike McQueary's recollection of offensive formations and offensive football plays is far superior to his recollection of the events of  February 2001 because his brain has established the schema for performing the recall of that information.

Conclusion

The limits of memory regarding an isolated incident preclude one from remembering exact words or exact details of the event.  It is likely that no one involved in the 2001 incident remembers exactly what was said.  Tim Curley, as athletic director, had many other things on this plate that demanded his attention, particularly the expansion of Beaver Stadium in 2001,  that would taken precedence.  Similarly, Gary Schultz, Joe Paterno, and Graham Spanier, would not have focused on this event, given the multitude of issues they faced on a daily basis.

Dr. Joseph A. Cattano: The Tragedy of Premature Conclusions

 A NEW NARRATIVE: THE TRAGEDY 
OF PREMATURE CONCLUSIONS

Sometimes it is painfully difficult to hold onto something that in your soul you believe 
is true, particularly when that very belief has faced an onslaught by those 
parties and individuals who control the dialogue:  Maybe that is what faith is all about.  Penn State students, alumni, and fans who have followed the tragic situation at their university have had to sit tight and endure the anger, incrimination, and vitriol that were the manifestation of the Louis Freeh Report, a presentment that went without
 challenge or vetting: The fact is, that it was literally accepted in its 
entirety at face value.  However, in recent months we have had the opportunity to experience new
 and revealing reports commissioned by the Paterno family.   These presentments offered cogent,
 well constructed, comprehensive counterpoints and challenging findings by
 individuals with truly impressive credentials.  Finally, we have the opportunity to experience the long overdue 
vetting and rebuttal to what some considered the questionable findings of the Louis
 Freeh Report.  Yet for the most part, these new presentations have been ignored by the media or discredited for
 a host of what seem ill-considered reasons. It feels as if there is a dedicated
 unwillingness to countenance the possibility that the Freeh Report was flawed 
and overstated in its conclusions.

Let us not forget the response to the findings and pronouncements contained in the Louis
Freeh Report.  The popular hosts of television and radio talk shows, sports commentators, columnists, private 
citizens, fans, the Penn State Board of Trustees (BOT), and of course the NCAA 
all reacted almost instantly, ruthlessly castigating in particular the 
legendary coach Joe Paterno for allegedly being an accomplice in a disgraceful
 cabal to hide what happened at Penn State.  In my opinion, Mr. Freeh presented his findings in a manner
filled with hyperbole and overstatement, a theatrical, dramatic style clearly
 designed to "raise the ire" of the audience.  Of course, the media picked up the "drum beat" and opined in
 a similar style, the airwaves and editorial pages filled with commentaries couched 
in indignation and outrage. To be incensed with Jerry Sandusky after the trial revealed
 his guilt is totally understandable and maybe even welcome.  But regarding the "Penn State Four"
(Spanier, Schultz, Curley and Paterno), it quickly became apparent that for far 
too many there was neither the time nor the desire to be patient until a more
 complete picture could emerge - a picture wherein other sources of factual
 evidence could be put on the table and considered before reaching conclusions 
regarding any alleged cover-up.  And, regardless of the Paterno presentments, I fear that the particularly loathsome 
nature of sexual predation and victimization has permitted and justified in the 
minds of many a sweeping attack upon and sterilization of everything Penn
State-related.  A predator hurt young children; hysteria and the lack of due process damaged a great university and
 an iconic figure.

I believe it is incumbent upon us to at least wonder why so
 many individuals were willing to almost blindly accept one presentment and not
at least wonder if there should not have been a public vetting of a document 
that was filled with such damning conclusions, particularly since the 
conclusions were based upon a suspect methodology of investigation.  To me, that was unconscionable! It 
should not have been permitted to happen. Were those who based their opinions strictly on the Freeh Report not 
aware of his investigative record? It is both important and revealing to note 
the fact that Louis Freeh completed a report for FIFA, the governing body of
 the International Soccer Association, pertaining to corruption charges against 
Bin Hamman, a candidate for president. Upon review by the Court of Arbitration of Sport, many of the charges 
were dismissed as they found the investigative report by Freeh to be incomplete 
and lacking in the necessary comprehensiveness.  Should that not at least be a flag that suggests proceeding
 with caution before taking his findings at Penn State as irrefutable, rock-solid 
truths? I would think so.

Apparently in what has been termed a "rush to injustice," there was neither tolerance nor time for another 
narrative to develop.  Due process and in particular one of the most honored pillars of American jurisprudence, the
 notion of prosecution and defense, were cast to the wind.  It seemed everyone knew who the guilty 
parties were - so let's not waste time: Might as well just throw the rope over 
the limb and have a good old-fashioned media lynching!  It would have been helpful if someone 
had reminded those individuals who were so quick to convict and punish of that famous 
novel that so dramatically depicted the consequences of callous injustice ? The Ox-Bow Incident.

Unfortunately, like many media-generated stories, the Penn State saga has a "media life" wherein other more recent 
narratives and information no longer pique the interest of the media and general public; the once irresistible sensationalism of Paterno and Penn State has quickly lost consumer interest.  In essence, the damage has been done and the thinking of many has been set almost irretrievably in concrete.

As a psychoanalyst, I believe that what we are currently experiencing (as evidenced by the recent Piers Morgan and 
Matt Lauer interviews) is technically what we call resistance. Particularly, individuals are often rigidly resistant to facing the 
reality of their actions and misperceptions.  Simply - they would rather not know and remain attached to 
their false notions, delusions, and dysfunctional behavior.  When these individuals are confronted, 
they often become agitated and highly defensive.  A perfect example of this was the manner in which Piers 
Morgan attacked Ziegler and tried to dismiss his information as bogus and ridiculous.  

Unfortunately, Ziegler's 
natural manner is not conducive to having a reasonable conversation with someone as defended as Morgan. 
Resistance must be tactfully addressed and removed before an individual can engage in a conversation that might raise their anxiety and promote a degree of self-examination. Few have the capacity of a Bob Costas to entertain 
the notion that he was premature in his opinions and consequently found the capacity and strength to revise his conclusions.   For most of those who publicly denounced Paterno, they must either flee from or discredit the new revelations in order to save face and to sidestep the damage to a great university, its alumni, and a legendary 
iconic man, which in part they are responsible for.  Sadly, it seems to be a characteristic of our still immature
 and often tabloid-minded society.

I am particularly confused by the actions of the NCAA regarding the draconic sanctions imposed upon Penn State. To me, they seem a little "psychotic;"  that is, not in touch with the reality of what transpired at Penn State. 
And, it is important to understand that what happened at Penn State has likely happened at other universities and institutions across our country.  This is a national problem, not just a Penn State problem.

In my opinion, the NCAA wandered far out of bounds from their designated role; that is, to monitor and assure the fairness of competition and safety of college athletics.  And, it is important to keep in mind that the true scope of these sanctions or more to the point - punishments, intentionally or unintentionally, has caused substantial distress to the entirety of the Penn State: the reputation of a great university; the alumni of Penn State; the current 
student body; present and past football teams (wins vacated from 1998 through 2011); and of course the residents and businesses of central Pennsylvania that are reliant upon the revenues generated by football at Beaver Stadium.  Of course, it is particularly frustrating, as the justifications for these sanctions have now been challenged with some well-considered opinions that are rather convincing in their dismissal of the assumptions and poorly substantiated conclusions contained in
 the Freeh Report.

Again, I believe that the NCAA is in the same situation regarding resistance.  It would be rather anxiety provoking for them to change their position, as it might suggest that they were at least extreme in their actions regarding PSU, if not downright wrong.  Attacking or confronting them simply will strengthen their resistance and resolve to keep the sanctions in effect.  However, an empathic, non-confrontational strategy that helps reduce their resistance to considering the Paterno presentment might at least provide a stepping-stone to reducing or eliminating the sanctions.

When considering what happened at Penn State, we need to promote a rational perspective.  Jim Clemente, a highly recognized expert on child sexual abuse and a former FBI profiler, clearly points out in his report that the failure on the part of individuals and institutions to  quickly recognize the identity of sexual predators and the scope of their actions is both 
well documented and unfortunately all too common. Psychologists and sociologists have long elaborated upon how incredibly masterful predators are in covering up or obscuring the reality of their behavior with children - the so-called "grooming" process: familiarity with family members, a high level of regard within the community, and a revered image all work in the service of cleverly concealing that which is actually happening and can cause hesitation within the minds of those who might entertain suspicions.   In his report, Jim Clemente uses the expression "nice guy acquaintance" victimizer in referring to the pattern and style of predation that Jerry had mastered. Under an elaborately constructed disguise as a pillar of the community, legendary defensive coach, and the force behind the Second Mile program, he was able to satisfy his sexual needs with children with no suspicios by anyone.  In essence, he was a masterful and cunning "groomer;" but it was not strictly the children who were groomed for his needs.  Over a long period of time, the entire Penn State
 University - State College community was successfully groomed to cover up his deeds and provide for his special needs. 
It is well within reason to at least consider that the situation at Penn State was one in which anyone who may have had some questions regarding Jerry Sandusky's behavior with children may unfortunately have cavalierly dismissed 
them as just "Jerry being Jerry." And of course, his development of and commitment to the Second Mile
 Program put him high in the regard of the entire State College community.

I believe that we need to communicate to our detractors and doubters how incredibly difficult it was to even contemplate, let alone believe, that someone who maintained such high esteem within the community - an individual who had been the source of accolades and admiration- could be guilty of abusing those very children he purported to assist and protect.  And, in Jim Clemente's opinion, that is what happened at Penn State and that is why in fact there was no cabal - no sinister intent to cover-up of Sandusky's actions.  It is just those thoughts - those very misperceptions regarding "acquaintance victimizers" that enable masterful predators like Jerry Sandusky in particular, to go without revelation until the tragedy that has befallen the victims is finally recognized and confronted.  Finally, there now is a reasonable, plausible narrative presented by an acknowledged expert in the field of child sexual abuse and victimization that makes sense out of how things went down at Penn State in the late 1990's and early 2000's.  I suggest that it is relatively impossible to use 2011 eyes to see and understand actions in 1998 or 2001.  And that was Freeh's critical fault and the failing of his report; that is, the inability to grasp the true nature of what was happening at Penn State circa 1998-2001.

In my opinion, the Penn State Board of Trustees should have defended, not defiled Joe Paterno's reputation until
 due process, or at least further sworn testimony, showed that he was a knowing participant in any alleged cover-up.  The
 dedication of his life's energy as well as much of his personal wealth to Penn State should at least have warranted that consideration. You do not permit a great university, its alumni, and an iconic figure to be trashed on a singular,
 unchallenged, and suspect piece of so-called evidence.  Had the media and the board of trustees
 waited until the truth came forward, hysteria would have succumbed to the quieting light of due process and honest revelation  and that is the way it should be!

For reasons that are rather apparent, the assault on the legacy of Joe Paterno reminded me of the infamous
"Dreyfus Affair."  In 1894, Alfred Dreyfus, a French army artillery officer, was tried and found guilty of treason by a court martial on the basis of false and misleading evidence - evidence that was contrived and corrupted in order to reach a predetermined desired outcome.  It was later revealed that testimony on the treasonous actions of Dreyfus was perjured -filled with outrageous insinuations and assumptions. However, thanks in part to the relentless efforts of the fiery writer Emile
Zola (J'accuse) and a few dedicated individuals, the truth was finally revealed and the conspiracy against Dreyfus was shown for what it really was - anti-Semitism and the corruption of due process by entrenched powers.  After spending years banished to the infamous Devil's Island in French Guyana, he was found innocent and his rank restored.  But the similarities are disturbing: When initially found guilty, Dreyfus was paraded in front of a jeering public, stripped of his rank and insignia medals, and his sword broken in half.  In his disgraced and torn uniform, he was paraded through the crowd and spat upon. Think about it!  Joe's statue being removed, his placards torn down, his record from 1998 through 2011 erased, and his legacy being dragged through the media to be spat upon and his name a source of disgrace.  Again, are the parallels not compelling at least and frightening at worst?  All this predicated on assumptions and "must have knowns."  J'accuse the American media of a mass hysteria.  J'accuse the media of creating a man of mythical proportions, only then to revel in destroying him.

It is rather ironic to note that the NCAA chastised Penn State for permitting the culture of football to dominate 
and corrupt the affairs of the university.  What? Did I hear that correctly?  Are they joking?  Is the NCAA suffering from delusions? For decades, Penn State has been the absolute model for the student-athlete, with the annual graduation rates 
for football players consistently among the highest in the country - and often the highest.  Particularly,
the graduation rate for African-American athletes surpasses almost all other institutions.  Penn State is noted 
for producing academic all-Americans at an unprecedented rate; yet; the NCAA warns them about the culture of football - a
 culture largely created by the NCAA itself, as it has negotiated massive financial contracts with the media for
bowl games, play-offs, etc.  J'accuse the NCAA of blatant hypocrisy - of pointing an accusatory finger at Penn State when that very finger should be pointed at themselves.  And, J'accuse the Board of Trustees for cowering to bullies by not demanding due process to provide a more reasonable and factual understanding of what really transpired and illuminating any role that Paterno and others might have had in this tragedy.  J'accuse  the Board of Trustees of derogation of the responsibility of debunking the attacks regarding the "culture of football" at Penn State and demonstrating with facts what we have accomplished in the last forty years. J'accuse the Board of Trustees for not properly and openly vetting the Freeh report, before accepting it as fact and justification for their actions.  In fact, I now must wonder if the Board of Trustees had an agenda regarding Joe - maybe even the rare opportunity for a few to act-out some bizarre vendetta regarding Joe Paterno.  It surely begs the question: Was the Sandusky situation an ideal time to get some payback and destroy the legacy of Joe Paterno?  Maybe not to others, but to me that is the only way I can understand the impulsivity of the board in firing Joe and their refusal to stand behind a man who had done so much for Penn State.  There seems to be a play within a play within a play.

In closing, if due process should reveal culpability on the part of Joe Paterno and other members of the
 administration for the tragedy that occurred at Penn State, I will accept it and slowly, painfully work through it - always remembering that children were hurt.  But until that is established, although cantankerous in nature and imperfect as a man, I will continue to embrace the notion of Joe Paterno as a brilliant and dedicated coach, teacher, and philanthropist at a great university. He was steadfastly committed to an idealized notion of what college athletics should be and never veered far from that vision.  Unlike the falsified, aggrandized media image that made Joe Paterno a man for all seasons - the reality is that he was but a man made for the football season.

Joseph A. Cattano, Ph.D.,

PSU 1971

PSU Officials Had Concerns About DPW in 1998

Ken Frazier did what Freeh did - selectively used evidence to state PSU was culpable for 1998. Other evidence indicates PSU officials were concerned about DPW's role - but Freeh left that documentary evidence out of his report.

By
Ray Blehar

At the March 15, 2013 BOT meeting Ken Frazier pointed to a few notes made by Gary Schultz as evidence PSU officials knew about child abuse in 1998.  In most cases, he misinterpreted the evidence.  Frazier was adamant: “I believe that we are entitled to look at the words and contemporaneous emails and other documents that draw the conclusions that we need to draw as a university.”  

However, a fuller view of evidence shows that PSU officials were concerned about DPW's role in the 1998 investigation.

The Evidence

The first piece of evidence is on page 49 of the Freeh Report: "Harmon continued to provide Schultz with information about DPW's role in the investigation and their potential conflict of interest with the Second Mile."  

The reference for this statement is "Schultz confidential file notes (5-1-12)."  This note is not included in the Freeh Report Appendix, thus, it is another piece of evidence that Freeh chose not to include for the public to view.  As I noted in my WHVL interview, the 1998 police report, the psychology report of Chambers, the Seascock evaluation, and other key evidence was excluded from the report's Appendix.

The second piece of evidence is at Exhibit 2B, where Harmon writes on 5/13/1998:  "The psychologist from DPW spoke with the child.  They have not spoken to him.  It is still my understanding that they intend to do this.  I have also been advised that they want to resolve this quickly."

I found it unusual that a child protection agency would want to resolve an investigation quickly.  Under the law, DPW and CYS have sixty days to conduct an investigation and at just 10 days into this investigation - with Schultz's note indicating other children could be victims of Sandusky - DPW intends to resolve it quickly. 

The 1998 police report shows that DPW then waited 18 days to interview Sandusky and agreed to close the case right after the June 1st interview.   Notably, the record does not show that then-Centre County DA was part of the decision to end the investigation.  The DPW program representative, Jerry Lauro, stated in the Pittsburgh Post-Gazette, that he didn't have enough evidence to indicate a finding of abuse.

"It didn't meet the criteria," Mr. Lauro said. "If I really thought there were any child abuse ... I definitely would have indicated it."

The next piece of evidence is at Exhibit 2C, where Schultz, after returning from vacation, he writes to Harmon on 6/8/1998 at 2:03AM:  "Tom, I've been holding some "catch-up time" on my calendar on Monday and I suggest we use a piece of it to meet and discuss the status (I also recall the last time we talked you indicated that there were some aspects of the this that you felt you should review with me when we had a chance to talk).  Please get ahold (sic) of Joan and see what time will work. thanks."

As Schultz continues catching up on his e-mail, the finds Harmon's e-mail of June 1, 1998, stating the case was closed.  At 2:04 AM, Schultz writes:  "Tom, you can ignore my earlier email, unless you feel we should talk more about this."  (Freeh Report, Exhibit 2D)

At this point in time, Harmon had already been notified by Ray Gricar that there would be no charges filed in the case and a discussion of concerns would have been moot.  However, this goes back to the point of the AG's request to Freeh not to interview Harmon who could have shared valuable insights about his concerns of the 1998 case.

Regardless, this evidence indicates that PSU officials had concerns about DPW's role in the 1998 case and subsequent reporting by this blog and others are in agreement that the 1998 case was poorly investigated.  Former FBI-profiler and child sexual abuse investigator, James Clemente, stated (in an e-mail to Wendy Silverwood) that the entire 1998 case should be reviewed.  In Clemente's interview on Media Mayhem, he specifically called out the evaluation by John Seasock as a major breakdown in the case.

Calling for Reforms

At the same Board meeting, Frazier continued his defense of the Freeh Report, stating that it wasn't chartered to look at the performance of CYS and DPW and that it was an internal investigation. He went on to say that the reforms made by PSU will ensure that incidents like the 2001 occurrence will now be reported to the proper authorities.   

And that is Frazier's and the majority of the BOT's biggest blind spot.

Given the state of Pennsylvania's child protection system, there's no guarantee that reporting abuse incidents the authorities, in 2001 or now, would stop incidents of child abuse.   

The evidence on the record, from a 2008 Health and Human Services review of DPW, shows that in 43% of the cases, children continue to be abused after DPW and/or CYS is contacted.

Frazier and the BOT's willingness to ignore the record and not call for improvements in Pennsylvania's child protection system continues to keep children in harm's way.

Thornburgh, Paterno Rebuttals to Kenneth Frazier's Statement on the Paterno reports

Former U.S. Attorney Dick Thornburgh:

When we released our review of the Freeh report we were very careful not to question the motives or challenge the integrity of Mr. Freeh, his investigators or members of the Penn State Board of Trustees. Overheated rhetoric and personal attacks do nothing to advance the objective we all share of finding the truth in the Sandusky scandal.

That some members of the Board of Trustees want to reject our report out of hand, without the benefit of a review or discussion is unfortunate.  We believe the better course would be for the Board to have a public review of both reports. I personally would welcome a chance to discuss these issues with the Board.

We also believe that all of the files and records related to Mr. Freeh’s investigation should be released to the public. This will make it easier for everyone to judge the accuracy and thoroughness of his work.  The flaws of the Freeh report cannot be dismissed or overlooked. They are significant and numerous and must be addressed.  This case will not be resolved until the record is set straight.

Scott Paterno:

Speaking on behalf of my family, we find it unfortunate that Ken Frazier chose to make comments in a forum where his impressions of disputable facts were not open to challenge.
Mr. Frazier is certainly welcome to his personal opinion, but in his capacity as a member of the Board of Trustees, he should be more concerned with finding the full truth than with defending a clearly flawed report.
It has been and remains our hope that the Board of Trustees, led by Mr. Frazier's committee, would examine both reports as well as others. As we have said from the beginning, our team stands ready to answer any questions - an opportunity that we have been denied by the Board of Trustees since November of 2011.

We also do want to take exception with Mr. Frazier's characterization of both the Freeh report as "independent" and with our report as being merely a bought and paid for result. Mr. Freeh was hired by the Board of Trustees, which was and is an interested party in this matter. He is no more independent than our team.

We are proud of the team we assembled and the work they produced. Our team has the very best credentials and sterling reputations for independence - reputations they staked on their reports. To question their independence is to question their integrity. If Ken Frazier wants to question the integrity of Attorney General Dick Thornburgh, FBI profiler and abuse survivor Jim Clemente and world renowned pedophilia expert Dr. Berlin, he should at least allow them an opportunity to address the Board directly on this matter.

And just for fun, a trip down memory lane with Governor Tom Corbett talking about the Penn State investigation:

November 21, 2011:  I'm very pleased with Ken Frazier leading that. Ken – I've only known him a short time – but I'm very impressed with his leadership. I'm very impressed that he has put together some people, including Ron Tomalis, on behalf of the administration and also as [state] secretary of education, on that team, and the selection of Louis Freeh is I think a very good one. I'm sure most of you by now know the former director of the FBI and former federal judge Louis Freeh was appointed.

Kenneth Frazier: Anti-Child and Anti-PSU

Kenneth Frazier believes that his slick talk about the Freeh Report can fool us.  It can't.  Kenneth Frazier is a phony. He doesn't care about children and he doesn't represent PSU's interests.

By

Ray Blehar

Kenneth Frazier’s remarks in the Philadelphia Inquirer and elsewhere, did a disservice to Pennsylvania’s children, continued to inflict harm on Penn State University, and lacked common sense in terms of understanding the evidence in the Sandusky case.  Frazier commited errors of bias in his use and interpretation of the evidence in this case, and, like Linda Kelly and Louis Freeh, refused to acknowledge (i.e., throws away) any evidence that doesn’t fit his anti-PSU agenda.

That's right.  Anti-PSU.  Any person who would defend the Freeh Report, which resulted in PSU being labeled Pedophile State University, certainly can't be labeled anything but Anti-PSU.  At least that's how I see it.

I find it astonishing that one of our Board members, who is a well accomplished attorney and who gained notoriety for fighting the Vioxx lawsuits on a case-by-case basis (rather than in a class action), would refuse to defend PSU officials who were erroneously charged with failure to report child abuse. 

Frazier contends – as do Freeh and Kelly - that the decision made not to report the 2001 incident to DPW provides a reasonable basis to conclude a report was not made to authorities.  Yet, two former PSU employees (Courtney and Schultz) both stated that they believed the University contacted Centre County CYS about the incident -- fulfilling their legal mandate to report. 

Why wouldn’t Frazier, as an attorney, and as someone representing PSU, come to the defense of Schultz and Curley in light of these statements?  Why wouldn't Frazier, as I have done, challenge the AG to prove a report was not made to CYS?  Proving a negative is nearly impossible. And Frazier knows it.

Why wouldn’t Frazier review the law and take the position that Curley’s report to The Second Mile should have fulfilled the legal requirement of causing a report to be made to authorities and put the onus of the failure on The Second Mile?

The simple answer is that Kenneth Frazier does not care about the reputation of PSU.  What Ken Frazier cares about is PSU's bank account and the bank accounts of he and his cohorts on the BOT.

PSU Finances

It has become rather obvious that Frazier and the November 2011 BOT cut a budget deal with Tom Corbett (with a few other "sweeteners" thrown in).  The deal makes a lot of sense from a financial perspective, because the $60M in fines and other costs of the scandal pale in comparison to what Corbett could do to PSU in a single year with his budget axe.  How was it that in Spanier’s last year, Corbett proposed $160M in budget cuts, but after Spanier’s departure, PSU got (and will continue to get) a level budget?   

However, there is yet another financial reason that is likely behind the BOT’s push to “move forward” and not fight the sanctions.  PSU is loaning the Athletic Department the money to pay the fines.  The first loan was for $12M at 4% to be paid back to the University over 30 years.  As a result, the University stands to make $8.8M on its loan if the loan goes full term.  If similar arrangements are made for the other loans to the Athletic Department, PSU stands to gain $44M over the next 35 years.  The Athletic Deparment pays the loans from its revenues, the University doesn't pay a dime.  But who ends up paying?  The student athletes who don't get scholarships to PSU, the same athletes who will have to make due with less than the best facilities (as maintenance and other support are cut), and the athletic boosters who support PSU athletics will likely face increasing costs for tickets, parking, and concessions. 

What does the BOT have to pay for their negligence in the scandal?  Nothing. 

They're indemnified --  unless it can be proven they committed crimes. 

Just thought I'd throw that in.     

For those of you who are hand-wringing over the potential payments to Sandusky’s victims,  you need not be concerned.   These are settlements to avoid the potential heavy costs of litigation. In comparison to the other money involved in the scandal, the settlement money to the victims is "chump change."

BOT Not Protecting Children

In the article, Frazier sets up a false choice between the BOT’s alleged purpose of preventing harm to children and the BOT’s critics as people whose only concern is vindicating Paterno. 

It’s a convenient set of labels, but neither is true.

Frazier and the BOT have steered clear of making any mention of the failures of The Second Mile, DPW, and CYS in protecting children.    All of these entities had far more qualified people to identify Sandusky as a child molester back in 1998 and 2001, yet failed to do so.  Yet, Kenneth Frazier wants us all to believe that it was Curley, Schultz, Paterno, and Spanier that “at the moment of truth..did not put the welfare of children first.” 

Frazier hides behind the excuse that Freeh was chartered to do an internal investigation and not look at DPW, CYS, and The Second Mile.   That's a convenient out for Kenneth Frazier and the BOT, but it's not convenient for the 25,000 children who will be harmed and the 40 children that will lose their lives this year in child abuse incidents. 

Frazier needs only to find a mirror if he wants to see who is failing Pennsylvania’s children. 

His silence – as well as the rest of the BOT members who refuse to acknowledge failures outside of PSU – continues to put children at risk.  Anyone who has fallen for the story that PSU is the world’s leader in child abuse prevention (as some are claiming) needs to understand that funding a child abuse research center at Hershey Medical Center and throwing money at child protection charities doesn’t put the resources where they are needed most – on the front-lines at CYS and DPW to recruit, train, and retain qualified and caring child protection caseworkers.

The U.S. Department of Health and Human Services last reviewed DPW in 2008 and published its findings in March 2009.  The report revealed substandard performance in all sixteen of the items related to child safety.  Pennsylvania's record for child protection is abysmal and it was the last state in the U.S. to meet the standards for funding under the Child Abuse and Prevention Treatment Act.  It didn't obtain CAPTA compliance until 2006.

It is clear that Frazier and PSU BOT have done about as very little research on child abuse and child abuse prevention and are completely unaware of the basics. 

As I pointed out in Tuesday’s blog, the Policy AD73, created in response to the Sandusky scandal, actually puts minor children in one-on-one situations with adults, which goes against well established two person rules in programs for youth. 

Policy AD39, regarding minors involved in university program, is also a lawsuit waiting to happen because it contains no provisions protecting the identities of child abuse victims nor the alleged perpetrator.  It also contains no provisions regarding the destruction of records pertaining  to child abuse reports.

The PSU BOT and the PSU General Counsel are “the gang that couldn’t shoot straight” when it comes to child protection.

World leader?  Hardly.

Freeh's Critics Are the Real Protection Advocates

Conversely, this blogger and many of the blog’s followers are staunch advocates for child protection and reforming Pennsylvania’s abysmal system.  We actually know the facts about the system, whereas Frazier and most of the BOT only know what Louis Freeh put in the text of his report.

It is abundantly clear that Frazier did not read the extremely well-written report by Jim Clemente that undoubtedly is invaluable in helping parents and anyone else identify offenders like Sandusky.  Frazier lumped the Clemente report in with those of Thornburg and Berlin and called it self-serving.  Conversely, responsible and caring BOT members, like Ryan McCombie, have praised Clemente's report for the lessons it provided.

Additonally, it is clear Kenneth Frazier has not visited this blog or the new web-site at SanduskyReports.com  and viewed all of the information about child welfare and child protection.  And it is highly unlikely that Frazier read my  first report which primarily focused on child protection and reforming the child protection system. 

Finally, my quest to improve child protection in Pennsylvania continues.  I will be writing a series of blog posts regarding the service levels provided by Centre County CYS so that the public will be better informed about how the system operates.  I can honestly say that most will find the system appalling on several levels.

Biased Use of Evidence

Frazier’s interpretation of the evidence in this case is exactly the same as Louis Freeh’s and Linda Kelly’s – and it’s wrong.  Of course, as accomplished attorneys all, they are doing as they are trained to do – focus on the evidence that supports their case and diminish the evidence that fails to support it. 

Under scrutiny, Frazier’s arguments based on the evidence he chose, falls apart.

Frazier: "The most important service that Judge Freeh did was to produce that documentary  record for us. We didn't have that," Frazier said. "But for his competence, I don't believe we would have it."

Rebuttal: Court documents show that Gary Schultz provided notification to PSU about the existence of his files on Sandusky on or about January 5, 2011.   Perhaps if Frazier amended the statement above to say, “But had it not been for Cynthia Baldwin’s incompetence, I believe we would have had it a over a year sooner” the statement would have some merit.  The biggest question I have is did Cynthia Baldwin tell Kenneth Frazier about this file prior to it being "discovered" by Louis Freeh?

Frazier:  In response to the e-mail evidence that indicated Paterno knew few details about

Sandusky, Frazier said he found that "at odds with the plain language of those documents."

Rebuttal: There are only 13 e-mails that reference the 1998 and 2001 incidents.  No one knows how many e-mails Freeh excluded that contained exculpatory information.  That is very likely one of the reasons why Frazier is so adamant that the Freeh investigation is not re-investigated.  Not only would evidence be found to exonerate PSU officials, but I firmly believe a re-investigation would result in criminal charges against the BOT and Freeh.  And it would likely reveal the NCAA broke its own rules by using information obtained via a criminal investigation. 

But I digress. 

As for Frazier's contention of the "plain language" of the documents proving Paterno knew the details, the best rebuttal is by the use of a fictional example of an e-mail that Mr. Frazier should equally characterize as having "plain language" that shows he knew many details of a (fictional) fraud committed at Merck.

Here's the email:

From:  Joe Smith, Merck Corporate Security

Sent:   Wenesday, May 6, 2007

To:       John Adams, Merck VP Finance

Subject:  Re: Kenneth Frazier

Will do. Since we talked tonight I’ve learned that the FBI people will interview the individual on Thursday.

At 5:24PM 5/5/2007, John Adams wrote:

I have touched base with the Attorney.  Keep us posted.  Thanks.

According to Frazier - and people like Sally Jenkins - the attorney referenced in this e-mail cannot be anyone other than Kenneth Frazier.  His name is on the subject line and he is an attorney, therefore, it is reasonable to conclude that Attorney has to be Frazier. Additionally, since Smith made the notation that the FBI was interviewing someone, it obviously had to do with the fraud case that was going on in 2007.  And because Adams is a protege (errand boy) of Frazier, Adams undoubtedly told Frazier the complete details of the fraud case.  So, the evidence in the e-mail above, according to Kenneth Frazier, would cause one to reasonably conclude that he knew the all of the details of the 2007 Merck fraud investigation.

Really?

I cannot imagine Frazier being confronted with this piece of evidence and Frazier rolling over and saying it is evidence that he had complete knowledge of the 2007 investigation.   If someone accused Frazier, based on this evidence, he would laugh them out of the room.  So would any other person with half a brain (rule out Sally Jenkins -- she considers these e-mails to be not just smoking guns, but guns with flames shooting out the barrels).

The only other e-mail referencing Paterno was Exhibit 5G, which indicates Curley had a discussion with Paterno before coming to a decision on the Sandusky matter. There is nothing in the e-mail about the content or the length of the discussion with Curley that would provide evidence  for Frazier to make a conclusion that Paterno knew details based on the “plain language" of that document.  There is no evidentiary basis for Frazier's statement.

Frazier stated that Exhibit 5A, the McQuaide-Blasko timesheet of Wendell Courtney indicates that Schultz considered the incident to be a case of child sexual abuse.

Rebuttal:  This is an attribution error.  The author of the document is Wendell Courtney, not Gary Schultz.  Schultz reported the 9 February incident, as told to him by Paterno, to Courtney.  No one knows, without talking to Schultz, what he believed he was reporting to Courtney.  Courtney performed legal research that dealt with child abuse.  It is Courtney's interpretation of the incident, not Schultz's.

-Frazier stated never in writing did anybody say “horsing around” or “can’t tell how bad this is.”

Rebuttal:  Spanier’s statement at Exhibit 2J states:  “I recall asking two questions: “Are you sure that is how it was described to you, as horsing around?  Both replied, “yes.”

Clearly, Frazier was omitting evidence that does not fit his narrative.  If Frazier were to argue that he was exclusively addressing what was said in the e-mail discussions, then he is correct that the term "horsing around" was not used in e-mail.  However, using the same argument, the words child sex abuse, sexual, or even showering were not mentioned in formal e-mails in 1998 and 2001.  In both cases, there is nothing specifically mentioned in e-mail about the nature of the incidents.  His argument would be ripped to shreds in court by anyone who has watched an episode of Law and Order.

Frazier noted that  Schultz’s handwritten note (Exhibit 2H)  that Schultz and others knew Sandusky had gone over the line because of the notation “had to be genital contact because of the size difference.”

Rebuttal:  There are at least three errors in Frazier’s logic. The first is his conclusion that the description of the act was over the line.  The 1998 investigation resulted in no finding of abuse and that Sandusky’s genitals didn’t contact the child.  Frazier’s conclusion is not only at odds with the results of the official investigation but the trial verdicts regarding Victim 6 -- which found Sandusky not guilty of indecent assault.

The second error is that Frazier considered this a statement of fact.  It wasn’t.  It was an assumption made by the mother.

The third error is another attribution error.  The source of that information was the mother of Victim 6 and the statement is not a conclusion, but an assumption.  The full statement is: “Mother asked how did he give hug – had to be genital contact because of the size difference.”  However, the full context of the note shows that the flow of information is attributed to the Mother, not Schultz.  See below:

The italicized “but when asked of boy” indicates that the first statement, which Frazier referred to, was provided by the mother.  Also, note that the mother asked Brendan, then neighbor, questions.  The questioning of Brendan took place between 9PM on May 3 and 1100AM on May 4. Schreffler called CYS spoke with caseworker John Miller about the incident.  Miller phoned back later to state he would accompany Schreffler on the interview of the second child (Brendan).

Frazier Is Covering for the state, Corbett, and the BOT

Kenneth Frazier’s concern for children is insincere and his behavior in this case has been despicable.  It is clear that Frazier has gone over Schultz's notes, and like Freeh and Linda Kelly, refuses to acknowledge the most important notation on those four pages:

Mother concerned something more

– kid took another shower last night & this a.m.

Repeated washing or feeling dirty is one of the strongest signs of possible child sexual abuse.

Yet, this remark doesn’t appear in the text of the Freeh Report.

Nor is it ever mentioned in the text of the November 2011 and 2012 grand jury presentments.

 According to the 1998 police report, Detective Schreffler explained the information he had obtained from the mother and Victim 6 to CYS’s Miller.   Miller shared his files with DPW official, Jerry Lauro.  The police and the caseworkers were aware of not only this potential sign of child abuse, but of many others, based on Schultz’s notes. 

They knew it - and they blew it.

Clearly, Governor Corbett did not want the responsibility for Sandusky’s 14 years of abuse to roll up on his state agency – DPW.   While the state can’t be sued, arrangements such as the 9/11 victims fund, typically get set up when there is a case of the government failing to provide adequate protection resulting in massive harm to citizens.  This would have been the case for PA DPW, had it not been for the PSU BOT’s willingness to cut a deal with Corbett to take the fall for Sandusky.

Moreover, as an additional favor to Corbett, the PSU BOT has not said one harsh word about the failings of DPW or about The Second Mile (who provided funds and held fundraisers for Corbett).

Many of us have come to the realization that Frazier and the Board sold out Pennsylvania's children to preserve the PSU budget. 

And most of us know the BOT's call for "moving forward" was because they are likely hiding something far worse than a budget deal and don't want the alumni digging around.

We're digging until the truth is uncovered.