1976, Insurance, Evidence, and Media Hypocrisy

In what should have been a story about how the Penn State Board of Trustees blew $93 million dollars, the media spun a story about an uncorroborated allegation about Joe Paterno

By
Ray Blehar

Yesterday, a judge ruled that Penn State University was not entitled to insurance reimbursement for most of the claims it paid to victims as a result of the Sandusky scandal.  The majority of the settlements paid for claims after 1992 are not covered. 

You can read a responsibly written report by Lori Falce of the Centre Daily Times about that here.

The story that made all the national headlines, however, involves an unsupported allegation about a 1976 incident that was allegedly reported to Joe Paterno by an alleged Sandusky victim.   The media malpractice came about not only when the word "alleged" was dropped from the headlines, but when the Patriot News ran with the uncorroborated allegation.

Getting back to responsible journalism, Falce wrote:  

But why use the word “alleged”? The retired defensive coordinator was convicted of 45 counts of child sex abuse crimes in 2012, right?  Yes. Those 45 counts relate to 10 boys, and incidents that occurred between September 1995 and the summer of 2009. However, Glazer’s order points to many more people and claims that include 1976, 1987, 1988, 1998 and 2001.

Based on the judges ruling, PSU is not entitled to reimbursement for the compensation awarded to almost all of the victims who testified at the trial, to the person who claimed to be Victim 2, to John Doe A (whose abuse in 1994 brought about PMA's lawsuit), and John Doe X who claimed abuse in 2004.  Victims 1 and 9's 2005 allegations will be covered as a single claim and will result in serious financial impact of around $20 million to PSU. 

It should also be noted that PSU's failure to challenge the validity of the Freeh Report resulted in no coverage for claims between 1998 and 2001.

As for the other non-trial claimants, PSU has admitted it has no evidence to corroborate their claims.  

Uncorroborated Allegations

On Friday, PSU released a statement that it does not possess any information to corroborate the allegations about the 1976 report and others:

  "The university has no records from the time to help evaluate the claims. More importantly, Coach Paterno is not here to defend himself. Penn State does not intend to comment further, out of concern for privacy, and due to the strict confidentiality commitments that govern our various settlement agreements."

If there was more responsible journalism in America, the second part of the story is that PSU didn't bother to vet the claims.  

In 2013, the PSU Board of Trustees Legal and Compliance Committee, then chaired by current Vice-Chair Ira Lubert, approved a settlement program then allocated $59.7 million dollars for compensation based on 31 claims.  In what is surely not a coincidence, PSU's insurance coverage for bodily injury claims was $2 million per incident and a $3 million aggregate limit.   

Do the math.

26 of the 31 claims were approved and all $59.7 million was spent. However, 3 of the claims not approved happened to be for incidents in which the claimants were asking for compensation over $3 million.  

The bottom line was that the legal team from Feinberg Rozen, basically approved the claims based on whether or not it was inside the insurance coverage limits.  

In 2015, an additional $33 million was paid for later claims, including an exorbitant payment to one claimant who was previously denied compensation (after his lawyers were granted access to the Freeh Source materials).

As the judge ruled, PSU was not covered for many to most of the claims -- and had no legitimate reason to EXPECT coverage based on its policies.

Use of Evidence

As I write this, various alleged legal experts, some from the world of sports, have weighed in that the 1976 allegation about Paterno cannot be corroborated.   They are correct, however, the legitimacy of the entire 1976 claim can be evaluated in light of the other evidence in the case. 

Former FBI child molestation investigator, Kenneth Lanning, who wrote what was is commonly referred to as the "Child Molester Investigator's Bible" provides this guidance on assessing victim claims.

Given the above, the 1976 deposition could be accessed and reviewed for consistency with the grooming and victimization techniques used by Sandusky.  Other details in the deposition can also be examined for credibility, as I will show below.

In summary, not only can the 1976 deposition be evaluated, but any and all depositions should be evaluated by qualified individuals. 

The Feinberg Rozen team proved themselves not capable of the task -- and the same goes for the unqualified investigators and biased prosecutors who worked on the Sandusky case.

Notable Vetting Failure

Using Lanning's "template of probability," Victim 5's most serious abuse allegation was not credible nor was the August 2001 time frame of it.  The significance of the date was that PSU paid the (then) largest settlement to Victim 5 because PSU could have prevented his abuse (because it allegedly occurred after the McQueary shower incident).

Unlike Feinberg Rozen, the jury likely used the "template of probability" in vetting V5's indecent assault allegation -- and voting not guilty for that charge.  

V5 testified to meeting Sandusky in 1999 and attending numerous events, including trips to Albright College to watch football games over two years.  However, unlike the rest of the victims he testified he didn't work out and shower with Sandusky until 2001.  Almost all of the other victims stated they were introduced by Sandusky the first year of camp and then invited to work out very early in their relationships with Sandusky.  In Victim 6's case, it was his initial one-on-one encounter.

Also, Victim 5 alleged being indecently touched the first time he showered with Sandusky.  Other victims who showered with Sandusky on multiple occasions testified to a gradual progression of touching/washing leading into indecent touching.  This gradual progression is typical for acquaintance offenders, as noted by Dr. Alycia Chambers Report about the Victim 6 (1998) incident.

In summary, Victim 5's abuse scenario didn't fit the "template of probability."

The testimony about the time frame of the incident was also inconsistent.

-- Victim 5 told the grand jury he was abused in 1998 (when he was ten years old).

-- In November 2011, he met with investigators to tell them he might have been the child referred to in the 2000 janitor incident (when he was twelve)

-- At the trial and in his claim, he stated he clearly recalled being abused in August 2001 (when he was 13).  Note:  Prosecutors changed the Bill of Particulars in his case from a very broad time frame 1996 to 2002 down to a single month (August 2001).

Notably, Judge Cleland instructed the jury that child victims who were abused many years ago can't be expected to know the exact date of the abuse.

So which date was most accurate?

According to his grand jury testimony, Victim 5 stated Sandusky had an erection in the shower didn't understand what it meant.

Given that testimony, it is more likely he was ten and it was in 1998 and not 13 in 2001.  Also, given Sandusky's penchant for early showers with his victims, it occurred soon after he met Victim 5, not two years later.

Again, Feinberg Rozen made the Victim 5 settlement the highest on the grounds that it happened in August 2001 and could have been prevented by PSU.

Victim Credibility/Media Hypocrisy

The media is quick to criticize anyone who questions the claims of a child sexual abuse victim. In the Jerry Sandusky case, the media remains quick to accept and run with uncorroborated allegations and sensationalize them.  

While Sandusky was convicted of 45 of 48 counts, the single count that caused the media firestorm - the 2001 rape allegation -- resulted in an acquittal.  You will be hard pressed to find media coverage highlighting that fact.

Interestingly enough, the only other victim to allege being raped and have it result in a conviction was Victim 9.  The media dutifully reported that he was raped repeatedly and had little issue with his story -- until it came crashing down on Tom Corbett's Sandusky investigation.

After AG Kathleen Kane correctly reported that Victim 9's abuse occurred in 2009 during the Sandusky investigation, the Patriot News' Charles Thompson quickly leaped into action claiming his abuse ended in 2008.  

His testimony on cross-examination was certain.  The abuse was through his 16th birthday -- as reported by the Patriot News in its trial coverage.

Unlike Victim 5, who was trying to recall an incident from 10 or more years prior, Victim 9 was 18 when he testified to being abused two years prior at age 16.

The Patriot News editorial board wrote an op-ed that contradicted their own newspaper's  trial coverage.

CNN's Sara Ganim, a Pulitzer winner,  also got in on the action, turning back the clock on Victim 9's abuse when she wrote about his civil lawsuit.

But the hypocrisy wasn't just about Victim 9.

Victim D.F., who was identified by Kane as another child abused while the Sandusky investigation lagged, was also labeled as not credible by the Patriot News (and Penn State).

D.F. made the "mistake" of claiming his abuse took place from 2008 to 2011.  As such, his allegations were dismissed outright by Prosecutor Frank Fina and the Patriot News.

The facts are that D.F.'s lawsuit allegations are extremely similar to those of Victim 10, who was presented as a witness at the trial by Fina and who received a settlement from PSU.

In summary, the Patriot News determined credibility in these cases based on WHO it implicated, not the evidence on which it was based.    It blamed selected PSU officials, but protected those at the state government level who were truly responsible and had the information needed to stop Sandusky in 1998 and in 2009. 

Real Tragedy: PA's Kids Sold Down the River

The real tragedy of the Sandusky Scandal is that the truth became the biggest victim -- and Charles Thompson, Sara Ganim, and the editorial board of the Patriot News sold PA's kids down the river to win a Pulitzer prize.

Their recent reports aimed at Paterno are nothing more than a desperate attempts to try to prop up Ganim's factually challenged and now crumbling Pulitzer stories about a Penn State football cover-up that didn't happen.  Ganim's latest story is so far fetched that it should be on the cover of the National Enquirer.

The Patriot News and Ganim's feigned concerns about the welfare of children are the height of hypocrisy.  Their reporting failed to educate the public on how acquaintance offenders and that irresponsible reporting continues.

More Hypocrisy: I wrote about settlement payouts here back in May 2015 -- after PSU paid out an estimated $20 million to settle with Victim 9, who was originally denied compensation.  After his legal team had been awarded discovery to the Freeh Source materials, the BOT convened and emergency meeting to approve his payment.

"Nifonged" Part 2: The Real Conspiracy of Silence

According to the Moulton Report, "the Penn State state emails" were turned over by July 7, 2011, proving a key obstruction of justice allegation was false and that Fina suppressed this evidence to charge Curley and Schultz with failure to report.   

By

Ray Blehar

In Part 1 of the series, the evidence indicated that Frank Fina's expectation that Curley and Schultz would "flip" was among the reasons behind his use of unreliable evidence.  Fina's reliance in pressing charges on flimsy evidence was much worse than that of Durham DA Mike Nifong, who was eventually disbarred over his misconduct in the Duke lacrosse case. In Part 2, the Moulton Report and a lot of other evidence reveal the misconduct on the part of Fina and then-Penn State Counsel Cynthia Baldwin during the Sandusky investigation -- in the lead up to the eventual Conspiracy of Silence case.

On November 1, 2012, the Conspiracy of Silence  (CoS) presentment levied allegations of obstruction justice against Graham Spanier, Gary Schultz, and Tim Curley.  While a long list of allegations were included in the presentment, many of which were not crimes, the key allegation of obstruction of justice was the lack of compliance with Subpoena 1179.

GJ Subpoena 1179 (Sandusky case), issued on December 29, 2010 requested:  

"Any and all records pertaining to Jerry Sandusky and incidents reported to have occurred on or about March 2002, and any other information concerning Jerry Sandusky and inappropriate contact with underage males both on and off University property. Response shall include any and all correspondence directed to or regarding Jerry Sandusky."

That allegation was blown away by the Moulton Report's timeline, specifically:

"July 7, 2011. Tpr. Rossman receives a thumb drive containing Penn State emails."

Trooper Scott Rossman and OAG Agent Anthony Sassano were the two investigators assigned to the case in July 2011.  Obviously, Rossman's receipt of the Penn State emails proves the charge of a "total lack of compliance" was false. 

Additionally, the notebook of former PSU President Rodney Erickson appears to confirm that Penn State had Schultz's notes by at least January 31, 2012 -- a little under a year before the obstruction charges were filed.

The analysis performed by Eileen Morgan made a very strong case that Penn State provided the OAG with the Schultz file in early January 2011 and that Fina utilized it in the grand jury examinations of Curley and Schultz.

However, the falsity of the obstruction charges doesn't stop there.  Not by a long-shot.

Smoke and Mirrors

PSU Policy AD49, effective July 19, 2010, clearly states that the General Counsel (Baldwin) was responsible for answering subpoenas: 

"LEGAL DOCUMENTS INCLUDING SUBPOENAS:

Baldwin "stonewalled" the PSU Three

All legal documents including subpoenas are to be referred to or routed through The Office of General Counsel. The Office has the prerogative to send them to other parties after receipt. The Office of General Counsel shall establish all procedures for handling and addressing legal documents."

The entire obstruction of justice and criminal conspiracy ruse is based on the assumption that Baldwin followed through on her responsibilities.  

Baldwin's grand jury testimony (pages 16-21) was clear that she met with each man one-on-one to discuss the subpoena.  

The evidence tells a different story.

Baldwin not only stonewalled the PSU Three about the subpoena, but of all of her knowledge of the evidence relevant to the Sandusky case.  

The Baldwin Stonewall

1998 Incident:  According to the Freeh Report (page 83), Baldwin obtained a copy of the 1998 police report on January 4, 2011.  Based on the consistent lack of recall of the 1998 incident by Paterno, Curley, and Schultz, it is quite obvious she didn't share the report to help prepare them for their appearance. Similarly, Spanier recalled almost nothing about the 1998 incident when he appeared at the grand jury in April 2011. 

2002 Incident:  Subpoena 1179 clearly identified 2002 as the date of the McQueary incident, but when under questioning at their pre-grand jury interviews, neither Curley nor Schultz got the date correct. Curley guessed 2000, while Schultz believed the incident was in 2003.  At Spanier's April 2011 grand jury appearance, he correctly stated 2002, although he said he wasn't sure of the date, but recalled it was about three years after Sandusky retired.

Subpoena 1179:  Baldwin did not advise Penn State officials of their responsibility to search for materials relevant to the subpoena.

Curley: According to Curley's omnibus pre-trial motion, he twice met with Baldwin, once at the Outback Bowl in Tampa, Florida (prior to the issuance of the subpoena) and once in State College, Pennsylvania to discuss his appearance at the grand jury.  Curley's motion makes no mention that Baldwin advised him to search for materials responsive to the subpoena.  

Paterno:  Scott Paterno, son of legendary coach, Joe Paterno, stated that Baldwin resisted providing him with his father's subpoena to testify and didn't provide it until April 2011.  He also stated that Baldwin never asked his father to search for any documents.  The Paterno family later volunteered numerous documents regarding Sandusky to assist in the Freeh investigation.  

Schultz: According to Schultz's omnibus pretrial motion, in December 2010, Baldwin informed him that he was subpoenaed to testify before the grand jury in January 2011.  Schultz agreed to let Baldwin accept service of the subpoena on his behalf. Schultz's affidavit made no mention of Baldwin informing him to search for Sandusky related materials. 

Spanier:  According to Graham Spanier's New Yorker interview, he was not told to search for documents by Baldwin.  

"In that period from January, February, March, she [Baldwin] only gave me a report that these folks are going to the grand jury. She told me somewhere along the way that they were interviewing staff in the football program, and she would be there for all the interviews. But she never told me what was asked about in the interviews, never told me what came up with Curley and Gary Schultz in their testimony."


Motions To Quash: Baldwin never filed a motion to quash the Subpoena 1179 nor did she make any other formal appeal to the OAG for relief.  As such, the OAG was likely expecting many documents to be produced. 

According to the presentment, PSU had only turned over a handful of documents prior to the testimony of Curley, Schultz, and Paterno.

In consideration of the evidence above, Baldwin was either a completely incompetent attorney or she was intentionally undercutting PSU officials.  The circumstances of her hiring appears to point to the latter.

But what do Baldwin's follies have to do with Frank Fina? 

Unwitting Targets

During the January 2011 grand jury, Sandusky case prosecutors Eshbach and Fina didn't ask Curley, Schultz, and Paterno if they were informed about Subpoena 1179 or if they conducted searches to find relevant information. 

Fina: No questions about Subpoena 1179  

Given the allegation that Penn State had turned over just a handful of documents just TWO DAYS before the testimony of PSU officials,  it strains credulity that Fina and Eshbach didn't ask anyone a question about that subpoena or any questions at all about searching for documents related to Sandusky.  The only person asked about documents was Schultz, likely because Baldwin had already passed his notes to them.

Based on the evidence, it is almost certain that the Commonwealth knew Baldwin had not informed Curley, Schultz, and Paterno about their responsibilities to gather information in response to Subpoena 1179. 

This is not a case about a bunch of incompetent lawyers, but more likely a case of Fina, Eshbach, and Baldwin collaborating to extract sworn testimony from Penn State officials who had no idea they were targets of the Sandusky investigation.  

More Lies About Emails

Page 23 of the presentment alleges that Penn State did not use its established procedures or personnel to conduct the searches for emails.  The allegations (below) are false, as # 3 and #4 were disproved by the testimony of Penn State employee, John Corro, who works for Security Operations and Services (SOS).

On July 29, 2013, Corro testified (on page 89 and 90) that in April 2011, he recovered the emails based on the searches for Curley, Schultz, and Spanier, then provided them to Baldwin (page 91).  

Corro further elaborated (pages 91 and 92) that he provided three USB keys to Baldwin, one which contained the entire set of emails and two that were of specific searches. 

When asked if he saw Subpoena 1179, like the others, Corro stated had not. He had only seen a few lines of it as part of another document,  but understood that he was searching for information related to the Sandusky investigation.

According to the agreement made at the Spanier GJ colloquy on April 13, 2011, Penn State was ordered to provide the entire history of emails from PSU officials dating back the University's implementation of email (i.e., prior to 1997) for Spanier, Curley, Schultz, and Paterno.   

Due to the system cut-over in 2004, the search for emails responsive to Subpoena 1179 (citing 2002)  required Penn State to access the archived files where Gary Schultz's 1998 and 2001 email files were located.  Corro didn't testify to any issues with accessing the archived files.

Penn State was to provide the full set - everything found -  to the grand jury judge and then a "culled set" specifically related to Sandusky to the OAG. 

Baldwin agreed to provide everything by April 15, 2011.  

No evidence to date identifies the exact date on which Baldwin provided the USB keys to the grand jury judge and/or the OAG, however, the testimony of Corro, and statements by Fina and Eshbach reveal that all of the 1998 and 2001 the emails were in the OAG's possession by April 2011. 

As for Louis Freeh's alleged discovery of the 1998 and 2001 emails...the evidence reveals that it didn't happen.

Summary of Evidence

The bottom line is that Fina, et al, knew that Penn State had indeed used the SOS to gather materials responsive to Subpoena 1179 and that Spanier, Curley, and Schultz were not guilty of obstructing the investigation by failing to turn over information.  To wit:

1. Schultz was retired from Penn State when Subpoena 1179 was served and had no access to the Sandusky file in his old office or to his 1998 and 2001 (archived) emails. According to an affidavit filed by Schultz, he informed Baldwin of the possible existence of the Sandusky file.  Any failure to provide those materials was because of Baldwin, not Schultz. 

2. Spanier did not possess materials responsive to the subpoena. 

3. There has been no evidence provided to date, aside from a reference in Erickson's notebook, that Curley possessed any evidence responsive to the subpoena.

The only other conspiracy to obstruct justice charge is wholly dependent upon the Commonwealth's legally impossible task of proving that Mike McQueary informed Curley and Schultz that a crime was being committed.  

In other words, the Commonwealth has nothing.

And let's face it, if there was any material/inculpatory evidence to be found, Louie Freeh would have put in his report.

Fina vs. Nifong

One of the reasons Durham County DA Mike Nifong was disbarred was for failure to disclose evidence that negated the guilt of the defendants.  Nifong failed to provide the complete results of the DNA tests that concluded two of the three defendants were not involved in the alleged rape of Crystal Mangum and made numerous misrepresentations about the nature of the evidence before the court.  The withholding of evidence was in violation of former Rule 3.8(d) of the Revised Rules of Professional Conduct.  The misrepresentations were in violation of Rule 8.4 (c). 

Fina's case is a bit different than Nifong's, however the same rules of conduct apply.

The fact that the Penn State emails were in the Commonwealth's possession by at least July 2011 (if not April 2011)  is proof that the Commonwealth knowingly lied about Penn State's failure to comply with Subpoena 1179. 

Given that the emails (and the Schultz file) included the date of the 2001 incident witnessed by McQueary, the evidence also proves that Fina, et al, purposely misstated the year of the McQueary incident in order to charge Curley and Schultz with failure to report in November 2011. 

The Sandusky prosecution team of Fina and Eshbach filed numerous documents with the court misrepresenting the date of the Victim 2 incident as March 1, 2002.  It was not until May 7, 2012 that Fina and McGettigan's Motion to Amend the Bill of Particulars to provided the correct date of February 9, 2001.

The evidence shows that Fina, et al, made numerous misrepresentations to the court during the Sandusky proceedings, in initially charging Curley and Schultz, and during Baldwin's grand jury testimony in October 2012.

Conclusion

The evidence regarding Penn State's provision of the email evidence is exactly the type of information that Frank Fina and his cohorts likely feared would be exposed when their "flip" strategy failed.  

While Moulton's investigation didn't highlight it, there is little doubt that his investigative team uncovered the email ruse.  If not for the toxic politics of the Sandusky case -- and the pre-emptive strike by Fina -- AG Kane might have already went public about Fina's deception.

No doubt, there was a "conspiracy of silence" related to the Sandusky case, but not by the people accused of it.


Next: Freeh "Fail"

Paterno Family Statement on Restoration of Wins

January 16, 2015  1:19 PM

Today is a great day for everyone who has fought for the truth in the Sandusky tragedy. The repeal of the consent decree and the return of the wins to the University and Joe Paterno confirm that the NCAA and the Board of Trustees acted prematurely and irresponsibly in the unprecedented sanctions the NCAA imposed on the University, the players, coaches and the community.

This case should always have been about the pursuit of the truth, not the unjust vilification of the culture of a great institution and the scapegoating of coaches, players, and administrators who were never given a chance to defend themselves.

For nearly three years, everyone associated with Penn State has had to bear the mark of shame placed upon the institution by the NCAA. It was grievously wrong action, precipitated by panic rather than a thoughtful and careful examination of the facts.

Fortunately through the tenacious efforts of Senator Jake Corman and Treasure Rob McCord, a large measure of the wrong has been righted. This is a major victory in our continued pursuit of justice for Penn State. The victims deserve the truth, as do those who have been smeared by the deeply flawed Freeh report, which served as the basis of the actions by the Board of Trustees and Penn State.

Through our pending litigation, we intend to continue the job of uncovering the full truth in this case. 

Analysis: Freeh Report Proved There Was No Basis for NCAA To Penalize PSU

The PSU BOT and NCAA must have believed...that PSU alumni were stupid enough to believe......that Erickson was stupid enough to believe.....that the NCAA had authority to impose the death penalty... based on the "plain language" of the Freeh Report. 


By
Ray Blehar

Over the past month, the media has quickly jumped on a few words or a passage from a deposition to draw conclusions about the NCAA's role in punishing PSU.  In most cases, the conclusions drawn have been incorrect, including the conclusion that PSU was bluffed by the NCAA and a later piece citing Rod Erickson's "out for blood" statements as proof that PSU was under duress. 

However, when reading and digesting all of the information available to date, the thing that sticks out most is that the "plain language" of the documents from this case defeat the "stories" being put forth by the defendants (and others, like former AG Linda Kelly).

Prior to the recent filings, the NCAA and PSU were both attempting to defend the legality/validity of the NCAA Consent Decree (CD).   As the Corman case has progressed, the co-defendants now have somewhat opposite agendas which must be considered when evaluating the truthfulness of their statements.    

PSU Agenda: Maintain duress scenario, Erickson's authority

PSU's agenda is to maintain the story that it signed the CD under threat of the death penalty, that Erickson had authority to sign for PSU, and that Erickson did the best that it could in light of the NCAA "being out for blood."  However, the depositions of Guadagnino and Erickson contained numerous inconsistencies and outright falsehoods that undermined their stories. 

Guadagnino (at 19) stated that he was hired as counsel for the Board in November 2011 -- which should give anyone pause about his qualifications -- considering the failure of all the lawyers involved to push back against the baseless charges against Curley and Schultz. 

He also stated (at 50) that in July, he and Dunham, with help from Paula Ammerman (!),   determined the President of PSU had the authority to sign the consent decree because nothing in PSU's rules prohibited him from doing so.  Erickson (at 125) also made that statement.  Those statements were patently false based on the "plain language" of the PSU BOT Standing Orders that were in effect in July 2012.  

Order IV. MATTERS REQUIRING APPROVAL OF THE BOARD OF TRUSTEES, 2. e.

"(e) Authorization to borrow money; authorization of persons to sign checks,contracts, legal documents, and other obligations, and to endorse, sell,or assign securities." 

Guadagnino and Dunham: Legal advice on
Erickson's authority influenced by Frazier?

There is no doubt that the the $60 million fine committed to by Erickson without a vote of the Board of Trustees was clearly a violation of this standing order.  Thus, the NCAA Consent Decree should be invalid because Erickson didn't have the authority to make an obligation of funds.   

The question in my mind is how did the  TWO lawyers come to the conclusion that Erickson had the authority to sign the Consent Decree?  My guess is they were told to come to that conclusion by former Merck Counsel and SITF co-lead Ken Frazier.

The NCAA's agenda: Maintain it was authorized to punish PSU

Erickson's "guilty plea" of LOIC
was all the NCAA had to go on.

The NCAA's agenda is to maintain that the NCAA Consent Decree is valid and that they had the authority to penalize PSU. However, after reading through the depositions of Don Remy, David Berst, Bob Williams, and Kevin Lennon, it became clear that the ONLY reason for the NCAA's decision to go forward with penalties against PSU was the "guilty plea" that was submitted by Rod Erickson. 

The deposition of Don Remy shows this most clearly, when he was asked if the NCAA accepted the Freeh Report.  He responded that they did not need to -- because Penn State did.   Really, what Erickson did in one fell swoop was to accept the Freeh Report and, most importantly, state to the NCAA the Freeh Report contained the evidence to support a Lack of Institutional Control  (LOIC).   

The "plain language" of its Constitution and By-Laws required violations of "applicable rules and regulations of the Association in the conduct of its intercollegiate athletics programs" for LOIC.  The NCAA knew there was no case -- and so did PSU.

Regardless of Erickson's admissions and willingness to enter into an agreement, the NCAA had no authority to uphold PSU's "guilty plea" of  LOIC or to penalize PSU.   The situation is analogous to a judge knowing that no crime was committed but accepting a guilty plea by the defendants' "attorney" (Erickson) -- all the while knowing the defendants (i.e. Curley and Schultz) were innocent.

Moreover, the NCAA's Julie Roe stated that it was doubtful that the penalties could have survived the enforcement (Committee on Infractions) process.  As I wrote here, even if the premature conclusion that there were ethical issues among the President, Head Coach, and/or Athletic Director at PSU, there were no NCAA rules violations resulting from the lack of ethics.  To make another analogy, if Spanier, Paterno, and Curley all turned out to be tax cheats, would the NCAA be authorized to punish the football program based on their dishonesty?  The answer is obviously, "no."

Those, like David Berst, who made the argument that their alleged lack of ethics/dishonesty enabled 14 years of despicable crimes being committed by Sandusky would, ironically, be proven wrong by the "plain language" of the Freeh Report.

Irony: "Plain Language" of Freeh Report Disproved LOIC

In the greatest irony in this case, the validity of three Freeh Report key findings cited in the CD were actually undermined by the contents of the Freeh Report.   In an equally interesting twist, no one had to do more than read to page 40 and leaf through the Exhibits to find the evidence that obliterated the so-called "factual basis" for the sanctions.  


These facts likely explain why there was such a rush by PSU to create a smokescreen of about the quality of the Freeh Report in an attempt to legitimize its findings.

Frazier:  “We thank Judge Freeh for his diligence in uncovering the facts over the past eight months and issuing such a comprehensive and thorough report.."

While the report was neither complete nor thorough, it had enough in it to disprove the key findings in its own Executive Summary, which were quoted in the CD.

Consent Decree Finding 1

Pages 20-30 of the Freeh Report specify crimes between 1998 and 2001, a span of four years -- not a decade.  No other crimes occurred on campus after 2001, according to the "plain language" of the Freeh Report (at 24 and 25).  

Next, there was no concealment of Sandusky's behaviors in 1998 nor in 2001.  

Freeh Report (at 20) clearly shows that the head of the University Park police department, a police detective, child welfare caseworker, and the local district attorney were all engaged on the case in 1998.

It is important to note that Sandusky was a full-time assistant coach with the football team during this fully reported and investigated incident in 1998.  The NCAA's assertion that the football program was unanswerable to oversight was nonsense.

In 2001, when Sandusky was a retired football coach, the Freeh Report (at 23) proved that head football coach Joe Paterno and graduate assistant coach, Mike McQueary, promptly reported Sandusky's activities to those in positions of power both inside (Curley) and outside (Schultz) the Athletic Department.  Additionally, Schultz sought legal advice on the matter from PSU's outside counsel Wendell Courtney.  

The charge of the football program concealing Sandusky activities from the Board of Trustees is also nonsense, given that Spanier and Schultz were members of the Board of Trustees (Freeh Report, Exhibit 10A).    

Emmert and NCAA officials ignored
the factual record in the Freeh Report

It truly boggles the mind that NCAA officials, such as Berst, Roe, and Emmert all stated that penalties should be levied from 1998 forward when the Freeh Report clearly showed PSU did everything correctly regarding the handling that incident.

This December 2012 exchange between Franco Harris and Mark Emmert reveals just how much  Emmert ignored the factual record in the Freeh Report.

Franco:  The report said in 1998 that Penn State was not involved in that.

Emmert:  Uh, uh, I read the report multiple times and I'm sure you have, and we'll have to agree to disagree.

Consent Decree Finding 2

The "plain language" in the Freeh Report (at 24) revealed that PSU Athletic Director Tim Curley instructed Sandusky not to use the facilities with children.  According to the trial verdicts in the case -- and the Freeh Report -- Sandusky did not use the facilities to commit crimes after 2001.

The "plain language" in the Freeh Report (at 36) also revealed that access to the University facilities for sports camps conducted by Sandusky and for the camps of The Second Mile were granted by PSU's Outreach and Cooperative Extension office -- not the Athletic Department.

Consent Decree Finding 3

Freeh Report Exhibit 6A proved that Spanier instructed PSU Counsel Baldwin to brief the Board regarding legal matters involved with the Sandusky investigation in April 2011.  That briefing was provided to the Board in May 2011, which was the first scheduled meeting after Spanier had been subpoenaed and testified in the Sandusky case.  Baldwin's briefing included information on the 1998, 2001, and the then-ongoing investigations of Sandusky.

As stated earlier, the 1998 investigation of Sandusky was handled in a confidential manner and resulted in no finding of abuse.  There was no reason for Spanier or anyone else to inform the Board about this incident as no one could have anticipated a legal action against PSU based on this isolated incident.

Similarly, the 2001 incident occurred when Sandusky was retired from PSU.  As a result, Sandusky's behavior was (at a minimum) reported to his employer (Freeh Report at 25).

Regardless of what Spanier or the Board did or didn't do, the Freeh Report (at 25) showed no  misconduct occurred within PSU's athletic facilities after 2001.  

No Rules Violations Reported In the Freeh Report

The Freeh Report provided no evidence of NCAA violations -- which are required to show that the alleged unethical and/or dishonesty of PSU officials resulted in a LOIC.  The Freeh Report mentions the NCAA just three times in the report at 37, at 38, and at 140, none of which address material deficiencies within the Athletic Department.

First, the report makes an unsupported claim that the Athletic Department's compliance function is understaffed.  Given that PSU had not had a major violation in its history (which the NCAA undoubtedly knew), what was the rationale for additional staffing?

The next reference to the NCAA in the Freeh Report (at 38) states that the University's independent auditing function  (Office of Internal Audit) conducted compliance audits with certain NCAA rules. Obviously, the OIA didn't find any rules violations according to the absence of findings in the Freeh Report.

The last mention of the NCAA in the Freeh Report (at 140) is within a "motherhood and apple pie" recommendation that PSU athletic department compliance officials and new hires should have a working knowledge of NCAA rules, among others. 

Remember, PSU paid Freeh $8.1 million for these types of recommendations and is currently paying George Mitchell about $1.8 million a year to monitor them.

This all begs the question, did anyone at the NCAA actually read the Freeh Report?

Who Really Read the Freeh Report?

It is quite likely that none of the key decision makers on the NCAA Executive Committee and Division I Board of Directors read more than the Executive Summary of the Freeh Report -- if that.  It may be just as likely that they didn't even do that.

Ed Ray's July 12th and 13th emails revealed that the reactions of the Head of the EC were based on media reports -- and not the Freeh Report.  On July 13th, he opined that "I think he has it right" with regard to Rick Reilly's ESPN article which also blamed PSU for the 1998 incident.  Note:  The op-ed by Reilly proved he was among those who didn't read the Freeh Report.

The July 13th email was written at 8:14 PM, which certainly gave Ed Ray time to read the Freeh Report.  However, I don't think Ed Ray spent one iota of time reading it, given his expectation that the NCAA was waiting for PSU's response to its November 17th letter.

The deposition of Bob Williams revealed he was reacting to Freeh's press conference comments and not the Freeh Report.   The word rape appears in the Freeh Report body just one time, on page 113, in a passage regarding the the crimes that fall under the Clery Act.  In addition, the Sandusky trial verdicts also revealed no incidents of rape on the PSU campus.    

David Berst's deposition revealed that he believed the Executive Committee were immediately voicing strong opinions on the matter based on details and was uncertain if they had read the Freeh Report or not.    

Conclusion

Ray: Head of the Executive Committee
or was he the Chief Rubber Stamper?

The lack of due diligence by the key decision makers at the NCAA -- to not make the effort to read the first 40 pages of the Freeh Report -- certainly gives one pause about their ability to be in any kind of leadership role.  Unfortunately, the NCAA EC is much like the "Old Guard" PSU BOT, which was referred to by many as the "country club."

It appears the EC was letting Mark Emmert and a small group run the show and they were simply a "rubber stamp" for that group's decisions.  

The facts of the case provides evidence that the NCAA Executives were the people guilty of violating (their own) NCAA rules by penalizing PSU and that the NCAA was the organization without adequate oversight -- not Penn State.