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July 12, 2012

Who should prosecute and what is a fitting "sentence" for Penn State officials after Freeh Report?

The question in the title of this post is prompted by this CNN report on the new investigative report just released about Penn State's poor (and surely criminally negligent) behaviors in the Sandusky affair.  Here is how the CNN report starts:

Penn State's most powerful leaders showed "total and consistent disregard" for victims of child sex abuse and failed to protect children, according to the findings of a long-awaited internal review over how the university handled a scandal involving its former defensive coordinator.

In fact, the report says several former officials "empowered" Jerry Sandusky to continue his abuse, and investigators say legendary head football coach Joe Paterno could have stopped the attacks had he done more.

In a statement released along with the 267-page report, Louis Freeh, the former FBI director and federal judge who spearheaded the review, blasted several top former officials at the school, accusing them of forging an agreement to conceal Sandusky's attacks. "There are more red flags here than you can count," said Freeh, who added that the abuse occurred just "steps away" from where Paterno worked in the university's Lasch Building.

"Our most saddening and sobering finding is the total disregard for the safety and welfare of Sandusky's child victims by the most senior leaders at Penn State," Freeh wrote. "The most powerful men at Penn State failed to take any steps for 14 years to protect the children who Sandusky victimized."

He went on to name four former school officials -- former President Graham Spanier, former Vice President Gary Schultz, Paterno, and former athletic director Tim Curley -- saying they "never demonstrated, through actions or words, any concern for the safety and well-being of Sandusky's victims until after Sandusky's arrest." Their failure "to protect against a child sexual predator harming children" lasted "more than a decade," the full report says.

"They exhibited a striking lack of empathy for Sandusky's victims by failing to inquire as to their safety and well-being, especially by not attempting to determine the identity of the child whom Sandusky assaulted in the Lasch Building in 2001. Further, they exposed this child to additional harm by alerting Sandusky, who was the only one who knew the child's identity, of what (Mike) McQueary saw in the shower on the night of February 9, 2001."

The full report, with all its exhibits, can be found at this link.

July 12, 2012 at 01:16 PM | Permalink


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Didn't Paterno tell what he knew to his boss, the athletic director? Shouldn't he have been able to rely on his boss to do the right thing with the information?

Sandusky is the villain here. Does Paterno, who by all accounts, was a great man and a great coach for many, many decades, need to be dug up and tormented?

Posted by: Nittany Lion | Jul 12, 2012 4:53:37 PM

@Nittany Lion: wrong on all counts.

1) The report makes clear that Paterno was an active participant in the decision NOT to report Sandusky to the authorities.

2) When you are aware of wrongdoing as severe as Sandusky’s, your moral obligation goes much farther than merely “telling your boss and forgetting about it.” If you knew what Paterno knew, and had told your boss, wouldn’t you follow it up when you saw that nothing was done?

3) For a failure as horrible as this, the cause simply must be investigated and discovered, even if it implicates the reputation of someone now deceased.

By all accounts, Paterno was a brilliant football coach. Most of his charges graduated with Penn State degrees and went on to live honorable lives. For the most part, he ran a clean program.

But he had at least one spectacular failure. If you want his successes to be remembered and honored, you cannot expect his failures to be ignored. And his failure in this case was not a minor matter. It may even be disqualifying.

Posted by: Marc Shepherd | Jul 12, 2012 6:00:27 PM

Mark -

I've listened to player after player, who played under Paterno, attest that he made them better men, and that he was the epitome of a decent man.

As a PSU alumn, I am certainly biased. But, I question whether you have your facts straight. I hope you and others are not solely relying on government man Louis Freeh for your facts.

Posted by: Nittany Lion | Jul 12, 2012 6:37:22 PM

I have no relationship to Penn State or even to the state itself. But I do know that Freeh was a terrible director of the FBI. "It's OK to lie in the pursuit of justice" is a direct quote from him during his tenure. So I don't trust anything the man says; he is not a man of honor.

If were looking for some to do a hatchet job, I'd pick Freeh.

BTW, I haven't read the report. But I wouldn't anyway, not when I consider the source.

Posted by: Daniel | Jul 12, 2012 7:46:47 PM

How about closing down the PSU law school (two campuses!), selling the assets, and giving them to the victims.

As a plus, a great service would be done for the citizens of PA.

Posted by: smitten | Jul 12, 2012 8:22:44 PM

First the feminist lawyer protects a sex predator who should have been eradicated before age 18, and entering the period of greatest criminal activity. Sandusky should be water boarded for an accurate count of all his victims. If typical, they will number in the hundreds. He should be executed after being enhanced interrogated to solve all his crimes.

Then the feminist lawyer and its male running dog, Freh, goes after a party with assets. This charade is for lawyer money making.

This is the feminist lawyer and its male running dog, Freh, witch hunt of all institutions that compete with government for authority. This report is a road map for the tort bar to feed off PSU for decades. Because there is no duty to report, to prevent crime, the PSU have no liability. I have proposed arming all law abiding citizens, and enacting a duty to kill. So you see Sandusky in the shower, with an unwilling boy, you must discharge your weapon into him or face a $100 fine. That would end a lot of crime by ending the criminal at the scene. Such a statute would be enacted if the purpose of the criminal law were to protect our children and the public. It is not. It is to make the lawyer money. So they protect and enable the criminal, and have a witch hunt of innocent parties with assets.

There would be no defunding of any institution competing with government. Freh report is in bad faith and has no validity except for lawyer enrichment.

The male PSU alumni should beat his ass, and drive him out of state. All tort lawyers should get the same treatment. They are like the Mafia coming to extort a merchant. They should be captured, tortured, and their heads Fed Exed to their mafia boss. To deter. I would cheer 50 lashes for any judge and any lawyer that seeks to steal from PSU.

Posted by: Supremacy Claus | Jul 12, 2012 8:58:36 PM

Daniel: "It's OK to lie in the pursuit of justice" is endorsed at the Supreme Court level. The series of decisions allowing police and prosecutorial lying supports sting operations ("We would like to buy from you that stolen Picasso."), and interrogation techniques ("Your buddy has told us everything and is working out a deal to sell you out.")

I support lying to the thugs that run the criminal law, almost as a duty of the innocent defendant. But the best advice is to remain silent, since lying to government officials is a crime itself.

Posted by: Supremacy Claus | Jul 12, 2012 9:04:48 PM

Nittany Lion,

I'll take your word for it that Paterno made many players "better men." But that's not the issue. If you don't see the wrong-doing he did (or omitted to do) in relation to Sandusky's sex abuse, you are not only are biased but your also deluding yourself.

First, Paterno had an obligation to report suspicions of sex abuse not just to his supervisors, but to law enforcement. He was happy to pass the buck so long as he had that "cover" and his precious football program remained free of the bad publicity. Second, there is direct evidence that suspicions about Sandusky weren't reported to the additional authorities (as they should have been) after a conversation was had with Paterno.

I could go on, but I won't.

Posted by: anon | Jul 12, 2012 9:12:59 PM

Daniel, Penn State paid for Freeh's investigation. If Freeh was going to put in a hatchet job, his incentive would be to exonerate the Penn State administration and place all the blame at Sandusky's feet. I don't defend Freeh's time heading the FBI, or his personal integrity, but even if Freeh is scum it doesn't exonerate Paterno or anyone at Penn State. Even Harry Connick Sr. sometimes prosecuted guilty people.

Posted by: Paul | Jul 12, 2012 9:15:34 PM

Hellloo civil liability. I guess tuition is going to be going up next year for Penn State students to help cover the litigation costs.

Posted by: Guy | Jul 12, 2012 9:37:04 PM

"...tuition is going to be going up next year..."

The lawyer protects the vicious violent predator, from a young age. When the predator likely commits 1000's of attacks, the lawyer gets to defund and enrich self from an institution that did nothing wrong. That shows bad faith, and fully justifies violence, as if the Mafia came around to merchants for protection money. Capture them, torture them, and Fed Ex the heads to the Mafia hierarchy. If the Mafia comes around again, burn their buildings and homes with them in them. Kill the Mafia. There is no difference between the Mafia and the lawyer profession except for the false piety. The Mafia is honest about its criminality. The lawyer profession poses as morally superior, and it thus more annoying than the Mafia.

Posted by: Supremacy Claus | Jul 13, 2012 12:00:28 AM

Whoever had the idea to hire Freeh needs to resign. This is a $100 million mistake. It is treason, like handing over all military secrets to the enemy right before the start of battle. If the person was a lawyer, not fired; they should be beaten, tortured, and killed because the lawyer is working for the other side. To deter.

Posted by: Supremacy Claus | Jul 13, 2012 12:18:15 AM

I haven't followed this story that closely, but I don't see how Penn State officials, including Coach Paterno, were he still alive, could be held criminally liable here.

Remember the classic example from torts class of the distinction between nonfeasance and misfeasance --- where the baby is on the train tracks as a train is approaching. If you see that baby, and let the baby get run over, your nonfeasance is morally reprehensible, but not legally actionable, absent a special relationship between you and the baby that gives rise to a duty, on your part, to act. If, on the other hand, you put the baby on the tracks, your misfeasance in causing the harm/death is actionable.

If Paterno and/or other Penn State officials failed to adequately report what they knew about Sandusky's child raping, isn't that non-actionable nonfeasance? Unless they can be deemed to have somehow aided and abetted Sandusky's crimes, what can they be held accountable for? Am I missing something? Perhaps Penn State can be punished by the NCAA, but how can the officials be held liable in tort law or criminal law?

Posted by: Calif. Capital Defense Counsel | Jul 13, 2012 1:08:36 AM

Am I missing something? Perhaps Penn State can be punished by the NCAA, but how can the officials be held liable in tort law or criminal law?

by: Calif. Capital Defense Counsel ♠ 13 Jul 2012 Fri 01:08:36 EDT

You are missing the “silent” rule . Prosecutors and judges do not mention it, but use it .

Any person who commits an act which the law declares to be punishable or which is deserving of penalty according to the fundamental conceptions of the penal law and sound popular feeling, shall be punished. If there is no penal law directly covering an act it shall be punished under that law which most closely fits, in regards to fundamental conception.

Whether such an idea is mentioned in law school, I know not.

It IS available .
▼                                               ▼

Law to change the Penal Code 28 June 1935

The Reich government has ratified the following law which is herewith announced:

Article 1

Creation of Law by suitable application of the penal law.

The sect. 2 and 2a of the penal code contain the following wording:

sect. 2

Any person who commits an act …
At least the Third Reich was kind enough to put it in writing , so that you knew where you stood.

Posted by: Mister Blank | Jul 13, 2012 7:30:30 AM

Anon: the problem is that the report contains evidence that Paterno & co didn't merely sit on their hands, but actively concealed the crime.

Posted by: Anon | Jul 13, 2012 8:52:36 AM

Some professionals are required by law to report child abuse, and breach of the duty is a crime. See Cal. Penal Code section 11166(c). However, I doubt any of the university officials in this case are covered by such a law (though I'm not familiar with Pennsylvania law in this area), and in any event the statute of limitations would likely bar any prosecution.

Posted by: Kent Scheidegger | Jul 13, 2012 9:40:26 AM

According to the Freeh report, Paterno was clearly aware of the 1998 investigation; but he told the Grand Jury he was not. That would be perjury if it could be proven.

Whether they’d indict the iconic coach, assuming he were alive, is a whole other question. The Freeh report wasn’t governed by the standard of proof required to obtain a conviction. And getting perjury convictions against celebrities is notoriously difficult, as the Roger Clemens prosecutors learned.

Posted by: Marc Shepherd | Jul 13, 2012 11:20:24 AM

For a failure as horrible as this, the cause simply must be investigated and discovered, even if it implicates the reputation of someone now deceased

Posted by: Packers Snapback | Sep 11, 2012 8:11:47 PM

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