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NCAA, Mark Emmert, Unitary Executives & The Death of Due Process

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Once you step beyond the tragedy of Aurora, the big news today centers on Penn State and the aftermath of Jerry Sandusky, Joe Paterno and Louis Freeh. There is a lot of news, and implications to come, from today’s events.

First, and unsurprisingly, Penn State yesterday took down the fabled statue of JoePa. Abandoning larger than life symbols, whether human or otherwise, is never easy. And it is not just the specter of human faces in this regard either, witness the difficulty (irrespective of which side of the equation you reside on) of moving beyond “Redskins” and “Seminoles” as team mascots. But Paterno’s statue at PSU, by now, was more a testament and reminder of gross and wanton failure, not success. A defeating duality if there ever was one for a supposedly inspirational piece of art. The statue had to go the way of JoePa himself, and it now has.

The second part of the news, and discussion thereof, however, will have far greater repercussions. That, of course, is the actual penalties handed down to the Penn State football program. They have just been announced and are as follows:

1) A $60 Million fine to be applied to anti-child abuse charity and organizations

2) A four year ban on bowl appearances

3) A scholarship reduction of 10 initial scholarships year one and 20 overall scholarships per year for a period of four years.* Current athletes may transfer without penalty or limitation

4) Imposition of a five year probationary period

5) Mandatory adoption of all reforms recommended in the Freeh Report

6) Vacation of all football wins from the period of 1998 through 2011. A loss of 111 wins from the record book (109 of which were from Paterno)

These are extremely harsh penalties. In some terms, competitively anyway, the scholarships are the key element. A loss of twenty per year for for four years, when prospective players know they will never see a bowl game in their career, is crippling. It will be fascinating to see how PSU survives this blow.

USC provides the best analogy, as it is just finishing up its sanction of a two year bowl ban and loss of ten scholarships per year for three years. While the Trojans will be eligible for a bowl game again this year, they still have one more year of the scholarship reduction to get through. USC has remained competitive and, in fact, is considered to be a major contender for the championship this coming year. Penn State, however, has much longer terms, especially as to the Read more →

Judge Issues Gag in Sandusky Case–After ESPN Exposes Tom Corbett’s Conflicts

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The judge in the Jerry Sandusky case, John Cleland, just gagged all the parties to the case. The Inky suggests the gag is targeted at Sandusky’s lawyer, Joseph Amendola. Of course, Amendola and even Sandusky himself have been working the media since Sandusky was first charged in the case, and the judge never issued a gag. The Inky points to contradictory psychological evaluations from one of the victims, suggesting (without any evident proof) the report came from Sandusky’s team.

Cleland’s gag order comes just more than a week after two conflicting psychological evaluations of one of Sandusky’s alleged victims were leaked to NBC News and other media outlets. Prosecutors had argued that not even the former coach’s defense team should have access to the files because releasing them would violate the rights of the purported victims.

One of the psychologists who interviewed a boy that Sandusky purportedly showered with in 1999 while on the Penn State campus concluded that the coach showed a “pedophile’s pattern of building trust” with a victim. Another, however, saw nothing inappropriate and noted that coaches often showered with their college-aged athletes.

But as the Inky admits, that report came out more than a week ago. A more recent collection of new revelations (with a reference to one of the psychologist’s reports) came from Don Van Natta Jr just two business days ago. His JoePa-friendly investigative report for ESPN focused on Governor Tom Corbett’s role.

A 62-year-old Republican, Corbett is a blunt-spoken former prosecutor whose political career has been built pursuing powerful people who, he has said, “believe they are beyond the law.” And his role in the Penn State scandal, fraught with potential conflicts, placed him in a remarkable position. As Pennsylvania’s attorney general, he investigated Sandusky for nearly two years but failed to make an arrest. But then, as governor, he blamed the university’s leaders for not doing more.

[snip]

To some, Corbett relished the opportunity and had even planned to play a role in managing the crisis. Eight days before the Sandusky grand jury presentment was released this past November, Corbett’s staff booked hotel rooms in State College. Becoming governor had made Corbett a trustee, and he had decided to attend his first board meeting, after missing the first four. During those days of crisis in State College, he lobbied for the ouster of Paterno and Spanier, ending with that conference call on Nov. 9. And when he was on campus the next day, after Spanier’s resignation and Paterno’s firing, he celebrated the leadership changes. “Throughout this whole process, I felt he had some ulterior motive,” a trustee says of Corbett. “Most trustees felt uncomfortable with his role. It was odd for him to be there and participate the way he did. Very odd.”

[snip]

A passionate defender of children who had opened a sexual predators unit in his office, Corbett had aggressively pursued such prosecutions during his career. But this time, he assigned just one investigator to the Sandusky case, say lawyers with knowledge of the arrangement, although Corbett has denied this through his spokesman. At the time, he had 14 investigators looking into the activities of Pennsylvania House Speaker Bill DeWeese, a Democrat, who was accused of having staff members use state resources for his campaign.

The information on Corbett appears to come from Penn State’s board and members of the investigative team, who would presumably be covered by the gag, though also by State College locals who reported on Corbett’s actions.

It may well be the judge decided to issue this gag because of those psychological reports (though details about the victims have already leaked). But the timing suggests it might well be targeted at those suggesting Corbett’s actions were less than noble in this affair.

How Did Investigators Find the Victims?

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There’s one more thing I’ve been trying to understand from the Sandusky presentment: How did the grand jury find the victims described in the presentment?

For some of the victims, the answer is clear. The mother of Victim 1 (the boy who Sandusky met at his high school) for example, told his school and the school, in turn, told the cops. That’s what set off this investigation.

From there, they would have quickly found Victim 6 (the boy whose mother called the University cops), because there was a lengthy report on what happened between him and Sandusky in 1998. And it seems that Victim 6 may have led investigators to contact Victims 5 and 7, both of whom he knew (he also alerted investigators to a B.K. who was also allegedly abused; the grand jury couldn’t subpoena him because he is serving in the military overseas).

And it’s always possible that a victim or a witness came forward after the first reports of the grand jury investigation were made public this spring.

But for some of the kids, it seems much more likely that an insider–someone from Penn State’s Football program–alerted the grand jury. This is particularly true for Victims 2 (the boy McQuery witnessed being raped in 2002) and 8 (the boy a janitor witnessed being fellated in 2000), since their identities remain unknown to the grand jury.

Here’s a summary of the victims with a description of any obvious way by which they would come to the attention of the grand jury.

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Penn State’s Evil Game of Telephone: Joe Paterno Is Crucial Witness against PSU

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Let me avoid any confusion by stating that what follows is not meant to excuse Joe Paterno of any moral or legal duty. He could have stopped an alleged child predator and did not do so and he bears great moral responsibility for his inaction.

With that said, though, I wanted to lay out what the presentment says about the evil game of telephone that occurred after Mike McQueary reported seeing a boy being anally raped in Penn State’s showers. This morning bmaz tweeted this article, which in turn relies on this article; and while both provide useful legal analysis, I believe both muddle what the presentment shows. A close examination may explain why (on top of a possible inclination to protect Paterno) the grand jury didn’t indict Paterno but did indict Athletic Director Tim Curley and Senior Vice President for Finance and Business Gary Schultz for perjury for the actions they failed to take after learning of the alleged 2002 anal rape of young boy.

As the chronology below suggests, Paterno serves as the state’s second witness to Curley’s perjury, which in turn provides the foundation for the argument that Penn State did not fulfill its duty to report this incident to the state’s child welfare authorities (whereas the University had reported the earlier, potentially less egregious 1998 incident to both).

Rightly or wrongly, the presentment places the responsibility for informing child welfare with Schultz and Curley.

The University, by its senior staff, Gary Schultz, Vice President for Finance and Business and Tim Curley, Athletic Director, was notified by two different Penn State employees of the alleged sexual exploitation of that youth.

Schultz ultimately didn’t deny he was told Sandusky’s actions were sexual; as the presentment explains, the grand jury found his perjury to lie in his claim the 2002 incident was not serious or illegal (which is all the more troubling since Schultz admitted to knowing of the 1998 incident in which Sandusky allegedly “hugged” a naked, lathered boy from behind).

But Curley outright denied he had been told of sexual contact. Yet, according to the testimony in the presentment, Curley was told on two occasions that what Sandusky did to Victim 2 was sexual. According to Paterno’s sworn testimony, he told Curley on March 3, 2002 that “something of a sexual nature” had occurred. According to McQueary’s sworn testimony, he told Curley (and Schultz) around March 14, 2002 that anal rape had occurred.

But without Paterno’s testimony–without him as a second witness that Curley knew Sandusky had done something of a sexual nature to the victim–you’ve got McQueary’s word against Curley and Schultz. In effect, with Paterno’s testimony, you’ve got a clear chain of information showing Penn State failed to act. Without it, you don’t have proof of the University’s legal liability.

One more note (and again, this is not meant to excuse Paterno’s actions). Much has been made of the fact that Paterno’s advisers have initiated discussions–though has not yet retained–J. Sedgwick Sollers.

J. Sedgwick Sollers, who once represented President George H.W. Bush in the Iran-Contra affair, was contacted by Paterno’s advisers on Thursday. But Sollers has not yet met with Paterno, and a formal retainer agreement has not been signed.

[snip]

A spokesman for Paterno said in an email that “no lawyer has been retained.”

For all that suggests about Paterno’s concern about criminal and civil liability going forward, it also seems to suggest that Paterno may not have retained a lawyer before he testified to the grand jury (which presumably happened between McQueary’s December 2010 appearance and Curley and Schultz’ separate January 12, 2011 appearances, though we don’t yet know how the grand jury learned of this incident). That means that Paterno may have provided testimony that implicated Penn State’s failure to fulfill notice laws without consulting a lawyer first.

Here’s the chronology:

Friday, March 1, 2002, 9:30 PM: McQueary sees the anal rape. He leaves, calls his father, and tells his father what he saw.

Saturday, March 2, 2002, morning: McQueary first calls, then goes to Paterno’s house and tells him what he saw. The presentment doesn’t describe what McQueary testified he said to Paterno, nor does it describe what Paterno testified McQueary had told him. It does describe that Paterno testified that McQueary was “very upset.”

Sunday, March 3, 2002: Curley comes to Paterno’s home. Paterno tells him (the implication is this comes from Paterno’s testimony):

the graduate student had seen Jerry Sandusky in the Lasch Building showers fondling or doing something of a sexual nature to a young boy.

Unknown date, March 2002: Paterno, Curley, and Schultz meet. Schultz testified that Paterno,

reported “disturbing” and “inappropriate” conduct in the shower by Sandusky upon a young boy.

The presentment does not say whether Paterno was asked–and if so, what he testified to–about this meeting.

Around March 14, 2002: Curley and Schultz call McQueary to a meeting (Paterno is not present). McQueary tells them (the implication is this comes from McQueary’s testimony):

he had witnessed what he believed to be Sandusky having anal sex with a boy in the Lasch Building showers. Curley and Schultz assured the graduate assistant they would look into it and determine what further action they would take.

Curley testified that McQueary told them,

that “inappropriate conduct” or activity that made him “uncomfortable” occurred in the Lasch Building shower.

Curley was asked, two times, whether McQueary had reported “sexual conduct” “of any kind.” Both times he responded “no.” He was asked if McQueary had reported “anal sex between Jerry Sandusky and this child,” to which Curley responded, “absolutely not.”

Schultz testified he was unsure what McQueary had told them.

he had the impression that Sandusky might have inappropriately grabbed the young boy’s genitals while wrestling and agreed that such was inappropriate sexual conduct between a man and a boy.

[snip]

conceded that the report the graduate student made was of inappropriate sexual conduct by Sandusky.

[snip]

testified that the allegations were “not that serious” and that “he and Curley had no indication that a crime had occurred.”

[snip]

denied having such conduct reported to him by either Paterno or the graduate assistant.

Unknown date, March 2002: Curley informs the Executive Director of the Second Mile of the conduct reported to him and also meets with Sandusky to tell him he was prohibited from bringing youth onto PSU campus anymore.

[Update] Here’s what Second Mile’s head testified Curley told him.

he was informed in 2002 by Pennsylvania State University Athletic Director Tim Curley that an individual had reported to Mr. Curley that he was uncomfortable about seeing Jerry Sandusky in the locker room shower with a youth. Mr. Curley also shared that the information had been internally reviewed and that there was no finding of wrongdoing.

Around March 28, 2002: McQueary hears back from Curley, According to McQueary, Curley tells him

Sandusky’s keys to the locker room had been taken away and the incident had been reported to The Second Mile.

According to Curley, he told McQueary,

Sandusky had been directed not to use the Penn State athletic facilities with young people and “the information” had been given to the director of The Second Mile.

Unknown date: Curley tells PSU President Graham Spanier “of the information he had received from the graduate student and the steps he had taken as a result.”

 

On JoePa

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I was born in 1968. At that point, my grandfather was still a Penn State professor. My mom and her 3 siblings were all Penn State grads. Joe Paterno had been head coach at that point already for a year and a half. My entire life, this football coach has been an institution in my life, one my extended family cherished.

Then again, for much of my life, so was the Catholic Church.

I think Penn State clearly did the right thing by firing JoePa and the college President, Graham Spanier. As ESPN’s Chris Fowler pointed out in their coverage, “this forestalls seeing JoePa carried off the field in triumph on Saturday.”

For our society to come to grips with the kind of predation of which Sandusky is alleged to have committed, it is crucial that no one, particularly not powerful people like JoePa, escape accountability.

That said, I think that few people commenting on this have read the grand jury presentment in detail. I think that shows two things:

  • JoePa avoided legal liability–but absolutely not moral liability–in 2002 when he referred the reports of a rape witness up his nominal chain of command. (If the two men accused of perjury did so to protect JoePa, as I think possible, that may change.)
  • JoePa almost certainly forced Jerry Sandusky out in 1999 because of an investigation into Sandusky’s totally inappropriate actions (though apparently not anal rape) discovered in 1998.

The presentment shows that JoePa himself admits to having been informed by a graduate student in 2002 of seeing Sandusky doing something–the graduate student describes it as rape, Paterno described it under oath as “doing something of a sexual nature”–to a young boy.

Joseph V. Paterno testified to receiving the graduate student assistant’s report at his home on a Saturday morning. Paterno testified the graduate student was very upset. Paterno called Tim Curley (“Curley”), Penn State Athletic Director and Paterno’s immediate supervisor, to his home the very next day, a Sunday, and reported to him that the graduate assistant had seen Jerry Sandusky in the Lasch Building fondling or doing something of a sexual nature to a young boy.

Even putting aside Paterno’s reluctance to call this rape, this makes it clear that Paterno learned of this incident and yet reported this only to Penn State officials, not the cops.

That’s the only testimony from JoePa in the presentment, so we don’t know what else he knew of Sandusky’s behavior. But it seems almost certain that JoePa forced Sandusky out in 1999, after an earlier incident got investigated.

The presentment describes Sandusky showering with victim 6, who was then 11 years old, in spring of 1998.

While in the shower, Sandusky approached the boy, grabbed him around the waist, and said, “I’m going to squeeze your guts out.” Sandusky lathered up the boy, soaping his back because, he said, the boy would not be able to reach it. Sandusky bear-hugged the boy from behind, holding the boy’s back against his chest.

When the boy’s mother, who reported this to the University Police, asked Sandusky whether his “private parts” touched her son when he hugged him, Sandusky responded, “I don’t think so … maybe.”

Ultimately, the county DA decided not to press charges. The detective involved described the director of the campus police telling him to close the investigation. When confronted about this incident, Sandusky admitted it was wrong.

The presentment leaves a lot about this incident–particularly, whether the cops were pressured to drop the investigation, and if so by whom–unmentioned, though it does say there was a lengthy report on it. It also doesn’t say whether this is the reason Sandusky was pushed into retirement the following year. It describes that Senior Vice President for Finance and Business, Gary Schultz (who oversaw the campus police), knew of the earlier incident. But here’s the explanation Schultz offered for Sandusky’s retirement.

Schultz testified that Sandusky retired when Paterno felt it was time to make a coaching change and also to take advantage of an enhanced retirement benefit under Sandusky’s state pension.

In addition to this detail from Schultz’s testimony the presentment also describes this detail from another victim.

Victim 4 remembers being emotionally upset after having a meeting with Joe Paterno in which Paterno told Sandusky he would not be the next head coach at Penn State and which preceded Sandusky’s retirement. Sandusky told Victim 4 not to tell anyone about the meeting. That meeting occurred in May, 1998.

All of which at least hints that Sandusky was forced out because of the 1998 investigation.

In his press conference last night, Board of Trustees Vice Chair (and US Steel CEO) John Surma made an oblique reference to people offering up information to the trustees, which I thought might be a reference to either the cops or victims or their families sharing information beyond what appears in the presentment (note, too, that one of the presumed victims from this period, referred to as “B.K,” didn’t testify to the grand jury, because he’s serving overseas in the military). And he seemed to suggest the Board knew of additional information that had yet to come out.

But from what we know, there’s a strong indication JoePa responded to evidence that Sandusky was abusing boys by separating him from the football program, not by reporting him to the police.