Old Main's Leaks & Confidentiality Smokescreen

In June 2012, Ken Frazier was cheerleading for the expected "leaks" to be featured on the Today Show and when they occurred, Old Main said little.

By
Ray Blehar

In the most recent round of filings over access to the Freeh Source materials, Penn State's legal team, led by William Odea, argued (at 44) hypothetically that confidentiality must be maintained because if a person applied to be President of the University, and the alumni trustees  "leak the information that that person has applied and it undermines them and that's it."

So, they're afraid "leaks" might undermine someone?  Really?

Let's flash back to June 11, 2011....

Frazier: Cheerleader For Leaks
Former Board of Trustee (BOT) member, Ken Frazier, who was the co-chair of the Special Investigations Task Force (SITF) that oversaw the Freeh investigation, was cheerleading for the leaking of grand jury information to the media.   

The email below, obtained by PSU alumnus Ryan Bagwell, shows Frazier's June 11, 2012 communique to SITF co-chair Ron Tomalis the Freeh group alerting them that the emails (gathered in response to a 2011 grand jury subpoena) might be featured on the Today Show.  

How did Frazier know that grand jury information was going to be leaked?  And who was in on the leak?  

The short list includes Old Main, the PA OAG, the Freeh group, and the NCAA.      

Old Main Stays Silent, Masser Condemns 

At the bottom of the email, it's clear that the University did not decry the leaked information, but instead stated "it cannot comment."   Ironically, it went on to state it would "cooperate" to "determine what happened and ensure personal accountability."

So, did Old Main attempt to find out who leaked the information and hold them accountable?

Of course not -- and the reason was that "elephant in the room."

Old Main and the Board needed Freeh's investigation to justify the firings of Spanier and Paterno.  The leaks helped advance their cause.

The next day, Old Main and the Board got the rest of what they were looking for when Tomalis mentioned that an article from the Philadelphia Inquirer "had the Paterno hook."  In other words, it mentioned that Paterno was referenced in the 2001 email.

At the time the emails were leaked, neither former President Graham Spanier nor the late Joe Paterno had been accused criminal conduct.  After the leaks, papers reported that Spanier (and Paterno had he been alive) could be facing criminal charges.  But there were no sentiments from Old Main about either man being "undermined" by the leaks.

Masser: Begged forgiveness for
his unauthorized statement  

Instead, then BOT vice-chair Keith Masser took the opportunity - based on excerpts of emails - to sway the court of public opinion and convict Spanier, among others, of not informing the proper authorities.

"It now appears like top administrative officials and top athletic officials were involved in making the decision to not inform the proper authorities."

 "From a board standpoint it was Judge Freeh's investigation that found these emails that relate Spanier, Curley and Schultz to the suspected cover-up."

Masser faced calls for his resignation over his statement.  PS4RS opined that Masser's  statement could be interpreted as an official position and used against Penn State in a court of law.  In another email, Frazier apparently echoed that sentiment, opining Masser's statement was "unhelpful." 

Masser later retracted his statement and apologized to the Board. 

Selective Undermining 

The engagement letter between the SITF and Freeh stated that the Freeh, Sporkin, and Sullivan (FSS) group would: "immediately report any evidence of criminality to the appropriate law enforcement authorities and provide notice to the Task Force" and  "communicate regarding its independent investigation performed hereunder with media, police agencies, governmental authorities and agencies, and any other parties as directed by the Task Force."

On April 12, 2012, SITF Co-chair Ron Tomalis sent an email to Freeh and Frazier regarding a recent media report that Graham Spanier was to begin employment in a national security position.  Tomalis sarcastically noted that "someone might not have done their homework."

Freeh responded that "we have done our job in notifying federal prosecutors."

Spanier's clearance was revoked as a result of the information passed to the federal government by Freeh.  

Rewind the clock to December 2011 and you'll see that Freeh didn't abide by the engagement letter when it was determined that Cynthia Baldwin was facing charges of contempt.

Lead Sandusky prosecutor, Frank Fina, sent a letter to then-PSU General Counsel Cynthia Baldwin castigating her for failing to comply with a subpoena concerning Sandusky's retirement information, as well as for a "lengthy history of noncompliance."   

Fina stated that the Sandusky retirement information had just been received on December 19, 2011, nearly a full year after it was originally subpoenaed. 

The December 19th letter from Fina set off a chain of emails between Frazier, Tomalis, Omar McNeil of FSS, and PSU hired attorney, Frank Guadagnino regarding what to do about Baldwin.

Frazier, Freeh and Tomalis: Torched
Spanier, but let Baldwin walk away

Frazier: "I just finished speaking with Frank. I explained why I think there are issues with the incumbent [Baldwin].  He agrees.  I believe he will be providing that advice to Surma when they meet tomorrow.

McNeil:  "any further need for Louie to follow up? I trust that Frank got a clear message from you."

Frazier:  "I think I was very direct. After hearing my position he said he was already thinking in a similar direction. No need for Louie to call." 


Frazier's coded language -- "issues with the incumbent" --  was a reference to the OAG's  "intent to pursue contempt" charges against Baldwin.

On January 16th, 2012, the board held a briefing call about "Strategic Issues Moving Forward."  

The next day, Baldwin announced her retirement.  The media reported her retirement was unrelated to the Sandusky scandal.

It's very likely that FSS asked if they needed to intervene or follow-up because Baldwin was not one of the "targets" of their investigation.  When they asked, the SITF told them to stand down. 

Conclusion

As stated in my last post and as above, the elephant in the room regarding the position of Old Main not to allow review of the Freeh Source materials is that it is all about self-interest.

The Board majority voted, without making a single statement to support their position,  to pay out untold millions of dollars to prevent the legal team of Victim 9 from accessing those documents.  

Undoubtedly, the source materials would prove what most people already know -- the Freeh Report's pre-determined conclusions weren't based on any real evidence.  Tampered evidence, maybe, but not real evidence.

Two lawsuits involving the Freeh documents pit the Board majority and Old Main against opponents who won't and can't be bought.

The smokescreen is lifting.

An Open Letter to President Barron

Dear President Barron,

In the July/August 2015 (dead tree) edition of the Penn Stater magazine, you remarked:

"Nobody gets to see Penn State. They get to see Sandusky."

And then you asked:

"...how to get people to realize the number of compliments this institution deserves?"

The answer is quite simple.  

You and the unaccountable trustees must resign and let individuals who put the best interests of the University take over.  They will do what's necessary to restore the University's honor.

As the record shows, you flatly refuse to do so.

While you may have mouthed the words that the Freeh Report was "not useful to make decisions," you have agreed to stand by decisions made from it and live with the public relations that were generated.  

This is the record as agreed upon by the PSU BOT and the NCAA and as BELIEVED by the public:

Penn State "allowed Sandusky's serial child sexual abuse."  

The conduct of PSU officials was "egregious" and "amounted "to a failure of institutional and individual integrity far exceeding a lack of institutional control or individual unethical conduct."

Penn State had a "culture in which a football program was held in higher esteem than the values of the institution, the values of the NCAA, the values of higher education, and disturbingly, the values of human decency."

Barron has done nothing to correct the record
 on Sandusky and instead has contributed to it.

You have done NOTHING to correct that record and, in fact, have contributed to it.

You doubled down on the "lack of integrity" farce by committing Penn State athletics to  a new (unneeded) athletics integrity agreement with the NCAA.   

You also agreed to continue paying former Senator George Mitchell for positive public relations  disguised as monitoring.  Well, at least you now know that those payments for Mitchell's positive PR haven't amounted to jack squat.

And quite tellingly, when the BOT debated the issue of reviewing the Freeh Report, you sat in silence, holding your finger over your mouth.  

Silence.  There's been far too much of it.

When evidence surfaced in July 2013 providing that Louis Freeh lied about his discovery of the "secret file" of Gary Schultz, Old Main remained silent.

In September 2013, when Sandusky prosecutor Frank Fina publicly stated that he "did not find that evidence" in reference to the late coach Joe Paterno's alleged role in a cover-up, Old Main remained silent.

When the Moulton Report (p. 158) was issued in May 2014 and proved that the Penn State emails were not discovered by Louis Freeh, Old Main remained silent.

Was the silence a result of the embarrassment over an $8.5 million outlay for a fraudulent investigation and worthless report?  

Perhaps.  But then you made the situation worse by talking.

In April 2015, when asked about the return of the Paterno statue, you stated that there is a group of people who believe it should never be returned  "because of what they know."  Then you winked into the camera.

And you wonder why people still view Penn State and Joe Paterno as enablers of Sandusky's sexual abuse of children?

It is quite obvious that you and the unaccountable members of the PSU Board of Trustees (PSU BOT)  have put your self-interests ahead of the University's.

The PSU BOT won't correct the record because - among other reasons - it justifies their removals of Spanier and Paterno.

And you won't correct the record because you answer to the PSU BOT.

Quit whining, Dr. Barron.  

This is your Penn State.

McQueary With More Inconsistent Testimony at Preliminary Hearing

Mike McQueary's testimony has proven to be consistently inconsistent in the Sandusky case.

By
Ray Blehar

The two things in life that are certain are death and taxes.
-- Benjamin Franklin

And now we can add a third thing to that list -- Mike McQueary's testimony will be inconsistent.

Eileen Morgan has already covered McQueary's inconsistencies about what he saw and how he reacted to February 2001 the shower incident.  And the accounts between the November 4, 2011 grand jury presentment, the December 16, 2011 preliminary perjury hearing and at the June 2012 Sandusky trial all differ in varying degrees.

Now that the preliminary hearing has concluded and the transcripts made available for review, the list of inconsistent things have now expanded to who he talked to about the incident, his dissatisfaction with Sandusky's presence in the football building,  and never before mentioned discussions with Joe Paterno.  Note that the media only reported the latter because it contains the key word -- Paterno.

But, what I found even more remarkable is what Mike remembers and doesn't remember.

"Rocket Scientist"

At the first preliminary hearing in December 2011, Mike McQueary could not remember the exact words he used to describe the act with his father, but at the latest hearing he recalls saying "you don't have to be a rocket scientist to figure out what was going on."  This is quite a change from the "extremely sexual and over the lines" terminology he used at the 12/2011 hearing.   Where did these new words come from?

Answer:  John McQueary.

While John McQueary also used the terms "extremely sexual" in his 12/2011 preliminary hearing testimony, John introduced the "rocket scientist" term at the Sandusky trial on 6/12/2012 (page 10).  His exact words, in typical John McQueary, confusing fashion, were:

"He said it didn't take a rocket scientist or something like that.  He might not have said rocket scientist to figure out what was going on."

Remember, this is the same John McQueary who testified that he had never been to the Dauphin County courthouse -- where he testified at the 12/2011 preliminary hearing.

When pressed about what he said to Dr. Dranov, he could not remember the exact words.  So, apparently "rocket scientist" was a code word shared only by Mike and his father (unlike the term "horsing around" which John said was archaic and Mike wouldn't have known about and that it was never used in the McQueary home).

Interestingly enough,  the "rocket scientist" word was never used in Mike's discussions with Joe Paterno, Tim Curley, or Gary Schultz.

More interesting is the fact that McQueary could not remember much at all about what he said to his father and Dr. Dranov on Friday night, but is absolutely sure what he told Joe Paterno the next morning and he's absolutely sure what he told Curley and Schultz at least 10 days after he talked to Paterno.  Those certain words were:

To Curley and Schultz:
12/16/2011: "extremely sexual and over the lines" (p. 32)
7/29/2013:  "a sexual situation, molestation incident" (p. 18)

To Paterno:
12/16/2011: "extremely sexual in nature" (p. 24)
7/29/2013:   "very bad sexual act, molestation act with a minor" (p. 9)

As Jim Clemente postulated, it is impossible for anyone to remember the exact words they used in a discussion ten or twelve years ago.  And it's absolutely incredible that the state continues to pursue perjury charges on statements that cannot be corroborated by another witness.

Which brings up the next point - corroboration.

Where were the corroborating witnesses?

As one should have expected, the media declared the prosecution the round one winner for meeting the exceeding low burden of having enough evidence to go to trial.  However, no one in the media has given a  thought to the point that the Commonwealth brought forth no one to corroborate McQueary's story.

Why?

The only corroborating witness is John McQueary.  Not exactly the most reliable witness (he needed considerable help from Judge Cleland to struggle through testimony at the Sandusky trial).

We know from earlier court proceedings that Dr. Dranov does not corroborate Mike's testimony and he (Dranov) - at one time - would have been the only other witness that could have corroborated Mike's story.   Mike testified at the 12/2011 preliminary hearing that the ONLY persons he told about the incident were his father, Dranov, Paterno, Curley, and Schultz.

But now the list has expanded...

At the Sandusky trial, Mike testified that he told his family members and his girlfriend, who defense attorney Caroline Roberto named as Ms. Long.  Apparently, Mike believes he may have called her during his trip from the Lasch Building to his father's home.

Mike also admitted at the preliminary hearing that he told former equipment manager, and now football operations director, Kirk Diehl about the incident.

And there are at least three other people - outside those now named - who received a contemporaneous report of the 2001 incident and have yet to be called as witnesses in the case.

What are the chances that these people will come forward and testify that they were told (by McQueary) Sandusky was molesting children -- and that they too remained silent?

I'd say those chances are quite slim.

Other revelations

The media jumped all over McQueary's testimony about his discussions with Paterno as if it were manna from heaven.

I found it particularly interesting that a USAToday column cited Wes Oliver, a professor from Duquesne University who had been following the case, who stated he could not gauge the truthfulness of McQueary's testimony because the grand jury transcripts are not available.  Apparently, this "close follower" missed the December 2011 preliminary hearing.

Another "close follower" of the case, Christoper Mallios, a former prosecutor, said McQueary's testimony provided the burden of proof to take the case to trial.

The statements both men were referring to was McQueary's assertion that Paterno met with him over the years and said Old Main screwed up and that Paterno would say - through the years - that Sandusky was a sick guy.

Of course, McQueary's latest revelations are absolutely nothing but hearsay, but the media bought them because it fits the current false narrative about the scandal.  However, a check of the 12/2011 preliminary perjury hearings and Mike's lawsuit against PSU pretty much slams the door on the honesty (or dishonesty) of these claims.

On page 104 of the 12/2011 preliminary hearing, McQueary is asked, "The questions you say you raised with people about why Jerry was still around there, did you raise that question before or after you were contacted by agents of the Attorney General's Office?

McQueary's answer: "Almost certainly after."

The Whistleblower lawsuit filed by McQueary against PSU makes no mention of the alleged conversation between McQueary and Paterno on November 9, 2011, in which McQueary alleged that Paterno stated the "Old Main screwed up" and he'd be scapegoated.  One would think that information would have been mentioned in the lawsuit.  Pages 6 through 8 recount the events from the release of the grand jury presentment to McQueary's dismissal from his coaching duties.  The discussion with Paterno was not mentioned.

What Did Joe Paterno Say?

Those who follow this close closely know that Joe Paterno stated in his final interview that he told Tim Curley about the incident and left if for Curley to resolve.  Paterno never mentioned following up with Mike McQueary or checking back with him.

Moreover, in his interview with Agents Sassano and Feathers in October of 2010, just a month before the grand jury presentment, Paterno never mentions any follow-up discussions with Curley or McQueary.  Partial transcript follows (my emphasis added):

SASSANO: And do you know what happened after that with regards to Mr. McQueary and/or Mr. Curley?

J. PATERNO: Nope.

SASSANO: Did Mr. Curley get back to you at some point in time after that to advise you what actions were taken…

J. PATERNO: No, no, I didn’t, I had other things to do, we had… As I said, Jerry was not working for me.

SASSANO: Right.

Conclusion:  The existing documentary evidence in this case demonstrates that McQueary's latest revelations are unsupported and, are likely, unsupportable.  No witnesses, save his father, will back his stories.