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September 17, 2012

Column: Jumping to Conclusions

Since the early days of the child abuse scandal that has changed Penn State forever, I have been appalled by the lack of due process and the frenzied rush to judgment.

No one has been hurt more than the victims and their families, but thousands of others - including most Penn State graduates and many, many central Pennsylvania residents - who had absolutely no involvement with or knowledge of Jerry Sandusky's heinous crimes are being punished simply because of their loyalty to their school or their association with it. All this is exemplified by the woefully deficient Freeh report and the draconian sanctions placed on the football team by a hypocritical, sanctimonious and power-hungry NCAA leadership.

This is not a defense of Joe Paterno, Tim Curley, Gary Schultz, Graham Spanier and others who are part of current criminal proceedings and continued investigations, or may be in the future. In that regard, I again stress the need to allow the judicial process to run its course before making final judgments on what those four did or did not do in this case. Nor is this a tirade against the biased, agenda-driven portions of the media that are so convinced of their own infallibility that they have already prejudged individuals and Penn State as an entity and have persuaded a majority of the public to do the same. We'll leave that discourse for another time.

My grievance here is with a special group of people connected to the Freeh report. First, there is the Penn State administration and board of trustees that hired Louis Freeh's consulting group at $6.5 million and meekly accepted without public challenge the final report as factual and indisputably truthful. Second is Freeh himself, with his own baggage, his team of unidentified investigators and the hundreds of anonymous "witnesses" who were questioned in secret by the committee - none of whom gave sworn testimony under oath no matter what they said.

Then there was Freeh's premature news conference, held only an hour after the report was released, giving none of the media proper time to read it all and fully analyze it.

With Penn State's grossly apologetic and self-serving officials turning a defective report into gospel, Mark Emmert and the NCAA's 21-person executive committee and 18-person Division I board of directors pounced, and for their own reasons went beyond the NCAA's own legal structure to destroy and humiliate the university as much as they could. We now know from Penn State president Rodney Erickson and legal counsel that the NCAA used strains of blackmail and extortion to be the judge, jury and executioner without any independent investigation whatsoever.

Finally, there was the equally self-righteous and surprising attitude of Jim Delany and the Big Ten leaders who jumped on the overflowing Freeh-NCAA bandwagon with an additional threat of even more harsh punishment for the foreseeable future.

It is beyond my comprehension how any fair-minded, unbiased and responsible person, one who understands how the Freeh report developed and has read it in detail, can accept the 267-page document as the ultimate truth. Even more inconceivable, many people within the media and the public have refused to read the report yet have attacked Penn State and anyone associated with the university - frequently in the most nasty and vitriolic language - for supposedly harboring a serial pedophile for years strictly to benefit the football program.

Dozens of people, including many with solid legal backgrounds and many with no ties to Penn State, have dissected and analyzed the Freeh report in minute detail. Anyone truly interested in a countering view of the document can easily find many of those evaluations on the Internet.

From what I have read of these analyses and from my own examination of the report, there are two parts that are not being overly criticized, but are still open for clarification and additional concrete evidence. These are contained in chapters eight and 10 regarding requirements for reporting child sex abuse and recommendations for the future protection of children at Penn State.

But the rest of the report is loaded with inaccuracies, distortions, innuendoes, misinformation, inconsistencies and arguable conclusions. It also is incomplete in many aspects, including the lack of personal interviews with several people still entangled in formal criminal proceedings. And many of the key elements depend on seven handwritten notes and several selected e-mails and documents out of 3.5 million that were turned over to the investigators.

The most egregious and incendiary distortion of all is contained in the initial findings on page 14 that allege a "total and consistent disregard by the most senior leaders at Penn State for the safety and welfare of Sandusky's child victims" and that "Four of the most powerful people at Penn State [Spanier, Schultz, Curley and Paterno]... failed to protect against a child sexual predator harming children for over a decade. These men concealed Sandusky's activities from the Board of Trustees, the University community and authorities. They exhibited a striking lack of empathy for Sandusky's victims by failing to inquire as to their safety and well-being…"

That charge is pure conjecture without legal factual proof and ignores the evidence that there were only two known accusations against Sandusky from 1998 to 2001 - one of which was investigated thoroughly and dismissed by the district attorney - until late 2008. It is precisely these inflammatory findings that have the media and public so angry at Penn State.

Freeh claims his report is authenticated by 702 endnotes and 60 footnotes. By my count, 429 endnotes indicated a least one interview to support a specific statement, with 59 citing anywhere from two to 18 interviews to back up a reference. Of the 60 footnotes, only two included interviews: five involving the university's Office of Student Affairs and three regarding Mike McQueary's qualifications to be promoted from a graduate assistant to assistant coach in 2004. These are not trivial statistics.

On page 9 of the report, the Special Investigative Counsel states that it conducted "over 430 interviews of key University personnel and other knowledgeable individuals to include: current and former University Trustees and Emeritus Trustees; current and former University administrators, faculty, and staff, including coaches; former University student-athletes; law enforcement officials; and members of the State College community at the University Park, Berhend, Altoona, Harrisburg, Wilkes-Barre campuses, and at other locations in Delaware, Pennsylvania, New York, Maryland and the District of Columbia, by telephone..."

The statement may appear to be overwhelming and conclusive. It is not. It doesn't mean all those interviewed are represented in the document. Nor is there any way of knowing from the report whether 434 different individuals were cited in the endnotes-footnotes or far, far fewer. Surely, there were many interviewees who took exception to the interrogators' line of questioning. Nor does it mean the committee should not have interviewed 430 additional individuals who may have refuted or disputed what the others told them.

Most significant, not one of the interviewees was identified in a footnote or endnote (although some were identified in the text and a few were obvious by their position) and that is what I find reprehensible about the document. No one had to go on the record with sworn testimony. And because interview transcripts are not available as part of the appendices, it's impossible to know how truly independent and unbiased Freeh and his investigators were.

Of course, it's impractical for me to detail all my concerns about the report in this short column. But there are three areas that caught my immediate attention because they epitomize for me the deceptive nature of the document: 1) the reliance on information about discipline from the Office of Student Affairs without any rebuttal; 2) the interpretation of the crucial 1998 child abuse investigation that never reached the criminal court; and 3) an uncalled for cheap shot aimed at the working relationship of Curley and Paterno.

And these do not count the dearth of data regarding the actions of Gov. Tom Corbett and the Second Mile charity, whose direct ties to Penn State fell under the Freeh committee's broad investigative mandate as stated on pages 4 and 5.

The first OSA matter is critical to Freeh's conclusion that Paterno and his football program were out of control and isolated from the rest of the university. It centers on an analysis in chapter four of the hearsay evidence presented at the Sandusky trial concerning a now-deceased janitor telling two fellow workers he saw Sandusky with a child in a shower in 2000. One of the janitors told the committee his friend was afraid to report the incident because "Paterno has so much power" and all of them would have been fired, adding this sentence: "He explained 'football runs this University,' and said the University would have closed ranks to protect the football program at all costs." To back up that sentence and others preceding it about Paterno's alleged omnipotence and his "excessive influence at the university" there's a long footnote (pages 65-66) referring to the OSA and a well-known off-campus fight in 2007 involving the discipline of football players.

The footnote credits the head of the OSA at the time - Vicky Triponey, who is not mentioned by name - as telling the committee she "perceived pressure from the Athletics Department, and particularly the football program, to treat players in ways that would maintain their ability to play sports," and that Spanier later reduced the sanctions OSA imposed on the players. Since the scandal broke, Triponey has been saying this and more to a susceptible media unwilling to seek out a countering view. Thus far, no one has publicly rebutted her. One who might - Curley - cannot talk about it now for legal reasons. If Spanier told the committee anything about the disciplinary situation in 2007 during his interviews, it isn't mentioned. And, of course, Paterno isn't alive to tell his side of the story.

There is no indication the investigators talked to anyone who might have a different opinion or looked into Triponey's credibility - which is suspect. Almost from the day she was hired, she battled constantly with the university's student leaders, not just the athletic department and Paterno. Those student leaders were so angry about her dictatorial style they set up a Web page that still exists: The Vicky Triponey Timeline of Terror.

Furthermore, even before her arrival, the Judicial Affairs branch of the OSA was considered by a large segment of students and local attorneys to be a "kangaroo court." In fact, what really precipitated Triponey's sudden departure - she only recently admitted publicly that she was fired - was an extensive review of Judicial Affairs in 2007 by a campus-wide academic committee that Spanier had commissioned. When Triponey strenuously objected to the committee recommendations that Spanier adopted, she was given the opportunity to resign or be terminated.

Anyone can read that committee report at safeguardoldstate.org. Obviously, Freeh and his committee didn't. Or if they did, the information they would have found there is not cited in their report. The recommendations are quite revealing. Unless the rules have changed again, no longer does Judicial Affairs have absolute authority over student discipline. That responsibility is now shared by all colleges and departments within the university structure, including Intercollegiate Athletics. Apparently, the Special Investigative Counsel also didn't feel it was worth his time to interview those attorneys who defended the players in the 2007 incident and in other disciplinary cases prior to that.

Triponey is significant not only to the Freeh report but to the perception that Paterno is the ultimate villain in this scandal. Shortly after the scandal erupted, Triponey launched a media blitz that continues to this day, an effort that has turned her into a revered whistle-blower. The headline on a CNN.com story from July 15 - "The woman who stood up to Joe Paterno" - has since been copied by other unchallenging media outlets.

So, if the Freeh Group was remiss in conducting an incomplete probe and making premature assessments of the OSA, one wonders what other deficiencies are contained in the report.

The May 1998 report of Sandusky taking a shower with a boy is the crux of this entire scandal. That incident spawned everything that followed, including the Freeh Group's allegation of a cover-up by Spanier, Schultz, Curley and Paterno. The aftermath of the 1998 incident is too detailed and complex to go into here, but three things bother me about the Freeh Report's conclusions.

First, those conclusions are based primarily on selected emails that may have been taken out of context and grand jury testimony that is an integral part of a continuing criminal proceeding and has yet to be proven in court. Second, no one knew in 1998 that Sandusky was a serial child sex abuser. False accusations of child abuse can be devastating to the accused and are common; a close friend of mine had one in his family a few years ago. If there is a second accusation, as there was with Sandusky in 2001, then the alarm bells should go off. That is why Freeh seems to be on firmer ground in his investigation of the 2001 McQueary encounter. But even here, his findings are suppositions. The truth is still to be determined, and many questions remain unanswered. Third, after the 1998 incident was investigated by the Penn State police, Department of Welfare, and Children and Youth Services, the district attorney declined to press charges. So to use 1998 as the benchmark for irresponsibility and a 14-year cover-up - as Freeh and the NCAA have done - is clearly disingenuous.

Finally, the uncalled for snide remark on page 75 and other such innuendoes spread throughout the document are indicative of the derisive tone of the report. In trying to claim that Paterno, not Curley, was the de facto athletics director, the report stated that a "senior Penn State official referred to Curley as Paterno's 'errand boy.' " That derogatory remark was out of line and should not have been included in a report from an experienced, high-profile professional like Freeh because it was followed by a second sentence attributed to two different interviewees that basically made the same point: "Athletic Department staff said Paterno's words carried a lot of weight with Curley, who would run big decisions by Paterno."

A recent editorial in the Pittsburgh Post-Gazette, entitled "Valley of denial: Some Penn State supporters don't get it," praised Freeh personally and his report. The editorial went on to attack Penn Staters who have challenged Freeh, the board of trustees and the NCAA sanctions, characterizing them as "myopic" supporters with a "self-destructive attitude" and "addicted to the football program and obsessed with old coach Joe Paterno."

What the editorial proves is that ignorance, conceit, bias and irresponsibility have no bounds in today's media. Penn Staters get it, all right. Too bad we have to go through such media and public bitterness to prove it.


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