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Onward State: Putting the Freeh Report Into Perspective One Year Later, From a Former Trustee

by on November 26, 2012 10:51 AM

This article was written by Rodney Hughes, a student member of the Penn State Board of Trustees from July 2008 to October 2011. Hughes was on the Special Investigations Task Force that commissioned Judge Louis Freeh, and is a current Ph.D. candidate in Higher Education at Penn State.

Last November, a grand jury presentment outlining criminal allegations against Jerry Sandusky prompted Penn State’s Board of Trustees to commission an internal investigation to understand the circumstances of the Commonwealth’s case against Sandusky and the university’s response to information it may have had about Sandusky. Earlier this month, a second presentment leveled criminal charges against former Penn State President Graham Spanier and added new charges against former administrators Tim Curley and Gary Schultz.

The Freeh Report (named for former FBI Director Louis Freeh, who led Penn State’s internal investigation) was a product of the first presentment, and much of the information it presented forms the basis for the second presentment. Since the Freeh Report was released in July, many have expressed concerns about its scope and accuracy, and, moreover, many figures and bodies who traditionally speak with authority about the university, including its former president, representatives of its faculty, and the NCAA, have made conflicting statements about the report. What follows is an attempt to outline what we know and what we still don’t know after the Freeh Report and 12 tumultuous months.

At the outset, the board’s decision in Nov. 2011 to commission an investigation was appropriate and forthright, insofar as the number of individuals with knowledge about Sandusky’s activity and the depth of the knowledge they possessed were unknown. However, this was a limited response in a number of legitimate ways.

First, the investigation was not a criminal proceeding and could not subpoena witness testimony or physical evidence. By request of the individuals’ legal representatives, the Freeh team could not interview Tim Curley, Gary Schultz, Wendell Courtney or Jerry Sandusky himself.

Second, the team could not cross some boundaries of the ongoing Attorney General’s investigation, and this prevented the group from interviewing Mike McQueary.

Third, the team was unable to interview Joe Paterno, despite his agreement, due to his passing while the investigation was ongoing.

Finally, Penn State paid for the investigation, so it could not proceed indefinitely. Given these constraints, the Freeh Report presented a number of findings and evidentiary items that have informed public discourse and now ongoing criminal investigations, but it also leaves a number of open questions.

Major Findings

A major finding of the Freeh Report identifies the central motivation for Curley, Schultz, Spanier, and Paterno’s decisions as the avoidance of negative publicity for Penn State. However, the report only recognizes the avoidance of negative publicity in two instances: first, the legal counsel for the executive director of the Second Mile reported to the Freeh team that Curley cited the avoidance of negative attention as a reason for banning Sandusky from bringing Second Mile children into campus facilities in a conversation with the executive director, and, second, Graham Spanier told the team in his interview that he was more concerned about the attention around Sandusky’s access to campus in 2001 than he was about the criminality of the situation, because he had no indication that Sandusky had committed a crime. Only these statements refer to the avoidance of negative publicity, and no contemporary evidence from 2001 or earlier refers to it as a motivation for any decisions that were made.

Another major finding attributed to the report is the existence of a cover-up or conspiracy on the part of university officials, or what the Freeh Report refers to as “conceal[ment]” of their knowledge of Sandusky’s activities from legal authorities, the Board of Trustees, and the community. This withholding certainly did occur, but evidence in the report does not support the idea in the public discourse that the withholding proceeded from a more calculated or long-term cover-up.

Specifically, Sandusky was investigated in 1998, and authorities concluded that no charges should be brought against him at that point. The Freeh Report itself finds that Sandusky’s 1999 retirement was unrelated to the 1998 investigation, using contemporary evidence to suggest that discussions were underway before the incident investigated in 1998 took place, which undermines the notion of a more coordinated effort to get Sandusky out of the spotlight.

Finally, discussions recorded in discovered emails from 2001 suggest there was not a coordinated effort to conceal information underway before Mike McQueary’s witness account, because the administrators in question specifically identified going to the Department of Public Welfare as an option. Clearly, they did not exercise this option, but their naming it undermines the idea that they were covering for Sandusky before this point. In fact, Tim Curley’s statement from the 2001 emails, “I need some help on this one,” brings to mind at least two interpretations: He needed help concealing information about Sandusky, or he needed advice from fellow administrators to try to exercise sound judgment on the matter.

Findings Related to Curley, Schultz, Spanier, and Paterno

The report does offer several new insights arising from evidentiary discoveries that have informed the most recent grand jury presentment and should inform the public discourse. Related to Curley and Schultz, Curley testified to the grand jury that he had no knowledge of the 1998 investigation into Sandusky as of 2001, but materials cited in the Freeh Report suggest that Curley frequently asked Schultz for status updates while the 1998 investigation was ongoing and met with Schultz to review the 1998 events within two days of McQueary delivering his witness account to Paterno.

Schultz testified to the grand jury that he didn’t have any notes related to 2001 or that such notes would have been destroyed upon his retirement in 2009, though the Freeh team was able to recover these notes in May 2012. Further, Schultz testified he didn’t know University Police had carried out the 1998 investigation and didn’t have any indication McQueary witnessed anything criminal in 2001, while the Freeh Report illustrates that Schultz corresponded with University Police regarding the 1998 investigation from day one and discussed the “reporting of suspected child abuse” with outside counsel Wendell Courtney after meeting with Curley and Paterno and before even speaking with McQueary. (Graham Spanier’s direct response to the Freeh Report suggests Courtney would have concluded the incident was not reportable since in fact it was not reported, but Courtney consulted with Schultz on Feb. 11, 2001, and the administrators discussed reporting McQueary’s account to the Department of Public Welfare as late as Feb. 26, 2001.)

With respect to Graham Spanier, Spanier testified to the grand jury that he had no knowledge of the 1998 investigation into Sandusky as of 2001, but the report illustrates that he was copied on two emails between Curley and Schultz in 1998 discussing the investigation. He and his representatives have maintained that these emails are insufficient to prove his awareness because only one refers to Sandusky by name, and it describes the conclusion of the investigation without charges. Spanier did not reply to either of these emails.

In 2001, Spanier was included on another email from Curley to him and Schultz in which Curley referred to speaking with Sandusky about “the first situation” (presumably the 1998 investigation into Sandusky) and seeking professional help and also making reports to “his organization” (The Second Mile) and “maybe the other one” (Department of Public Welfare). These were not named specifically, but Spanier responded without asking for any clarification of these signifiers, advising, “The only downside for us is if the message isn’t ‘heard’ and acted upon, and we then become vulnerable for not having reported it.”

In his recent interview with The New Yorker, Spanier has asserted that this statement refers to difficulty in ensuring that Sandusky would listen to Curley’s message. The Freeh Report concludes that this statement constitutes an acknowledgment of failure to report knowledge of a potential instance of child abuse to legal authorities, and the Commonwealth proceeded from this interpretation to charge Spanier.

Where the findings from the Freeh Report do not unequivocally indicate the existence of a cover- up or conspiracy that predated Mike McQueary’s witness account in 2001, evidence is present of concealment in 2010 and beyond. In other words, the report does not prove that Curley, Schultz, and Spanier overtly conspired to conceal the information they learned about Sandusky in 2001, but it does suggest later concealment related to their response to that information. Some of Spanier’s emails to then-General Counsel Cynthia Baldwin illustrate a reluctance to deal transparently with the Board of Trustees regarding news in early 2011 of the ongoing Sandusky investigation.

In response to an email request from a trustee asking for an update about the investigation, Spanier remarked to Baldwin that the trustee wanted “near total transparency”, begging the question of what that means relative to transparency itself. Similarly, in November, after the release of the presentment against Sandusky, Spanier initially remarked to Baldwin that a briefing with the board would be “nothing more than what we said publicly.” In turn, Baldwin resisted the idea of the board engaging an external investigative group to understand the circumstances around the charges against Sandusky, Curley, and Schultz, until the board commissioned its own Special Investigations Task Force and hired Reed Smith as its own dedicated legal counsel. Further, the most recent grand jury presentment asserts that Penn State did not comply adequately with subpoenas for documents relating to Sandusky until the board took these actions, and the Commonwealth’s charges include obstruction of justice and perjury during 2011 grand jury testimonies.

Finally, regarding Joe Paterno, Paterno testified to the grand jury that he did not remember any other incidents involving Sandusky before 2001, but the Freeh team discovered two emails from Curley in 1998 that appear to refer to Paterno. The first, from Curley to Schultz, dated May 5, 1998 (the day after the police investigation began and the day after Schultz learned of it), had the subject “Joe Paterno” and reads, “I have touched base with the coach. Keep us posted. Thanks.” Schultz’s reply refers to a Public Welfare interview, so the email reasonably refers to the Sandusky investigation.

The second, also from Curley to Schultz, dated May 13, 1998, had the subject “Jerry” and reads, “Anything new in this department? Coach is anxious to know where it stands.” The reference to “Coach” would not be referring to Sandusky, because police secretly listened to a conversation between Sandusky and the mother who reported him on May 13, and Sandusky would not have known at that point that he was the subject of police attention.

Finally, in a Feb. 27, 2001 email from Curley to Schultz and Spanier, Curley mentions a meeting he had with Paterno then proposes telling Sandusky about the administrators’ knowledge of “the first situation” as a result of that meeting. This proposal might have arisen from Curley’s conversation with Paterno, or Curley might have proposed this himself after reflecting on that conversation.

The Freeh Report leaves some open questions related to Paterno’s involvement. The Feb. 27, 2001 email from Curley to Schultz and Spanier has received a large amount of attention, because it signaled the group’s movement away from their plan to report what they learned about Sandusky to the Department of Public Welfare. This movement appears to be a consequence of Curley’s “giving it more thought and talking it over with Joe”. However, regarding Paterno’s involvement, nowhere else does the record of available information suggest anything about the content of the conversation between Curley and Paterno. (Again, the Freeh team was unable to speak with Paterno about this finding due to his passing before the discovery of these emails.)

Another open question relates to Paterno’s rationale for informing Sandusky he would not replace Paterno as head coach of the Penn State football team. Notes from Paterno’s records suggest he thought Sandusky was spending too much time on The Second Mile to be able to focus on football. There is no evidence to suggest that this idea was related to any troubling interactions with Second Mile children, but at Sandusky’s trial, former Penn State assistant coach Dick Anderson testified that Sandusky often showered with children in football facilities before 1998 and that other coaches were aware of this. Another set of handwritten notes recovered from Paterno’s records suggest Paterno disagreed with the idea of Sandusky having access to Penn State facilities for Second Mile children because it posed a “liability problem”, but again there is no evidence to suggest this disagreement was related to any problematic interactions between Sandusky and children from the Second Mile at that time. Evidence delimiting the scope of Paterno’s (or anyone else’s) awareness of Sandusky’s criminal activity before 1998 is absent from the record, so this remains an open question.

Summary

In summary, no contemporary evidence from 2001 or earlier supports the Freeh Report’s claim that avoidance of negative publicity was a major motivation for the response to information about Sandusky’s activities. Also, little evidence supports the notion of an overt cover-up before or around 2001, but evidence is much stronger for concealment of information in 2010 and beyond. Curley’s, Schultz’s, and Spanier’s stories should become clearer as their criminal proceedings play out and they can issue defenses, but Paterno’s role is not clear from the Freeh Report and may never become so.

Moving Forward

One year ago, the Penn State community was shaken by the revelation of the charges against Sandusky, the cognitive dissonance greatest for those identifying most with the attitude of “Success with Honor” espoused by the university and its athletic programs. The NCAA took exception to this picture of the university, concluding from the Freeh Report that Penn State harbored “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 most disturbingly the values of human decency.”

However, the most recent grand jury presentment contrasts with this view. Rather than fostering a culture that put football first, a few individuals, at least in some instances, apparently went to great lengths to inhibit broad awareness of Sandusky’s activity. Remaining criminal and civil proceedings likely will add greatly to our collective understanding of this story, but a narrative of contained secrecy within the larger university community is more consistent with, for example, the recent characterization of past Penn State faculty leaders describing the university’s culture as one in which athletics do not trump academic standards, academic revenues do not subsidize athletics, and student-athletes can succeed in both dimensions of the term.

Still, what went on was able to happen within the university’s governance structure. The Freeh Report censured Penn State’s Board of Trustees for lacking sufficient legal reporting mechanisms in 1998 and 2001 and not questioning Spanier and Baldwin aggressively enough in 2011. Beyond outlining evidentiary findings, the Freeh Report made 119 recommendations to improve compliance, reporting, governance, and safety at Penn State. Penn State already has implemented many of the recommendations, including hiring a new compliance coordinator to oversee different unit-level functions at the university, and implementation of further recommendations is underway.

Hopefully, the thought invested in governance over the past year will move Penn State into a much more secure and transparent arrangement, and hopefully other institutions of higher education can learn from our experiences.

For those of us currently affiliated with Penn State, we might take these events as an opportunity to reflect on our “We are Penn State” mantra. In the past, the cheer called to mind the image of imposing numbers, of students, alumni, and supporters, but now it might remind us each of our individual responsibility to support the safety and wellness of others who “are” Penn State. If “no names on the jerseys” in the past symbolized the importance of the unity of team and school over the individual, perhaps now we all symbolically affix our names to the university’s, painting the picture of it and its culture for others, unavoidably, with what we do in our own lives.



This post was originally published by the staff at Onward State. Follow Onward State on Twitter @OnwardState
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