Punishing Paterno, Part II

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I appreciate Gary Werkheiser’s comments on my earlier blog post, “Punishing Paterno.” Mr. Werkheiser’s observations can be found here. He is concerned that I too uncritically accepted the conclusions of the Freeh Report, the result of the investigation conducted by former FBI Director and federal judge Louis Freeh at the request of the Pennsylvania State University Board of Trustees.

There is no doubt that the NCAA penalty stage of the Sandusky-Paterno-Penn State affair developed with remarkable speed. It was that very fact that prompted me to publish the original blog post and to offer a similar recommendation on the SportsLaw Blog. I thought it was important to point out that punishments directed only at future football players and coaches would not adequately penalize those who were most responsible for the Penn State disaster. Nothing that Mr. Werkheiser mentions in his comment provides a reason to alter my original judgment regarding the culpability of Penn State Head Coach Joe Paterno.

Mr. Werkheiser, incidentally, is not just an ordinary Penn State alumnus, but is a leader of the Los Angeles Penn State alumni chapter and has been actively involved in fund-raising on behalf of Penn State and its Alumni Association. He earned a degree in accounting from Penn State in 1981, and, on his LinkedIn page, he describes himself as a “successful real estate professional, investment advisor and event producer.”

Mr. Werkheiser’s argument can be divided into three parts.

First, he insists that the Freeh Report contains no evidence that Joe Paterno was aware in 1998 of his friend Sandusky’s inappropriate conduct with young boys, and that the emails cited as evidence in the Freeh Report only contain references to “coach,” which Mr. Werkheiser suggests may refer to someone other than Joe Paterno.

Had Mr. Werkheiser read the Freeh Report more carefully, he would have noticed that the key May 5, 1998, email from Penn State Athletic Director Tim Curley to University Vice President Gary Schultz and University President Grant Spanier had as its subject, “JOE PATERNO.”

This email, which involved an incident in which a mother had complained about Sandusky’s inappropriate physical contact with her son in the Penn State locker room showers, contained the statement, “I have touched base with the coach. Keep us [emphasis added] posted.” (Freeh Report, p. 48) To suggest that “coach” might be a reference to an assistant coach for the Penn State woman’s volleyball team, or some other Penn State coach rather than Paterno, whose name appears on the email subject line, is simply silly.

Moreover, in a May 13, 1998, email from Curley to Schultz entitled “JERRY,” Curley wrote, “Anything new in this department? Coach is anxious to know where it stands.” (Freeh Report, p. 49) I suppose it is possible that by “Coach,” Curley was referring to the coach of the Penn State club bowling team, but I don’t think he was.

So, unless Curry was for some bizarre reason lying about having discussed the matter with Paterno, the two May emails indicate that Paterno had been informed of Sandusky’s alleged transgressions before May 5, 1998.

Secondly, Mr. Werkheiser also points out, correctly, that no criminal charges were filed against Sandusky as a result of the 1998 incident. Apparently, the state officials who investigated the complaint concluded that the lack of evidence that Sandusky, while cavorting in the nude with the 11 year-old boy, had touched the boy’s genitals made it unlikely that a criminal conviction could be obtained. (Freeh Report, pages 47-50.)

Whether or not this conclusion on the part of public officials was legitimate, or whether it was part of a widespread public effort to protect the reputation of the Penn State football program is still an unanswered question. However, the decision not to prosecute in no way relieved Joe Paterno of his moral and ethical duty to ensure that his coaches were not exploiting their connections to Penn State to the detriment of minors.

Even if Mr. Werkheiser’s arguments that the Freeh Report does not establish that Paterno had knowledge of the 1998 incident were correct, that fact would only push the date of Paterno’s culpability forward to 2001, when he clearly failed to take meaningful action upon evidence of continued abuses of young boys by Sandusky.

Finally, Mr. Werkheiser takes Judge Freeh to task for failing to interview Joe Paterno, Tim Curley, Gary Schultz, assistant coach Mike McQueary, Penn State Police Chief Harmon, and the Centre County district attorney. Again, had Mr. Werkheiser read the Freeh Report more carefully, he would have realized that Freeh’s investigators actually attempted to interview all of these individuals, except for the district attorney from 1998, who was already dead at the time the investigation began. (Freeh Report, p. 46.)

Paterno initially declined the interview request of the investigators, although he agreed to speak with them at a later time. Of course, his subsequent death made that impossible. (Freeh Report, p. 12.)

Both Curley and Schultz, who were under indictment for criminal offenses related to the Sandusky cover-up, refused to speak to the investigators, citing advice of counsel. (Sandusky himself refused to be interviewed for similar reasons.) McQueary and Police Chief Harmon were not interviewed, but only because of the Pennsylvania Attorney General’s request that the two not be questioned because of the possibility that criminal charges might be filed against them as well. (Freeh Report, p. 12.)

Given the Fifth Amendment and the priority of state criminal proceedings over administrative investigations, Freeh and his team had no opportunity to interview the individuals cited by Mr. Werkheiser. Consequently, Mr. Werkheiser’s criticism of Judge Freeh on these grounds is either uninformed or disingenuous.

I understand that Mr. Werkheiser bleeds Penn State blue and that it can be emotionally wrenching to learn that a man that you have idolized all your life was capable of serious transgressions. However, even the most resolute Penn State fan should know that ad hominem attacks and misstatements of fact are not going to clear the name of Joe Paterno.

I do not believe that Joe Paterno was an evil man, although I think the proclamations of his saintliness in his lifetime were a bit exaggerated. (After all, how many actual saints earned millions of dollars on their way to canonization?) In a very human way, Paterno fell victim to the worship of an idol of his own creation—the Penn State football program and his vaunted “Joe Pa” image. Somewhere along the way, he unfortunately chose the protection of the reputation of his program and his image over his Christian obligation to care for those who could not protect themselves.

The Freeh Report can be found here.

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16 Responses to “Punishing Paterno, Part II”

  1. Good post, professor. Lord Acton summed up the problem when he wrote that “power tends to corrupt, and absolute power corrupts absolutely.”

    Joe Paterno’s problem was he stayed too long. Also, there was no check on his authority. He turned a nothing university in the middle of nowhere into an international powerhouse and in return was allowed to do whatever he wanted.

    He was a despot. A benevolent one, but a despot nonetheless. In this case, he really blew it. Had he retired or had some check on his authority, perhaps Sandusky could have been stopped earlier.

  2. Gary Werkheiser Says:

    Nick, I will politely ask if you have read the Freeh report. You really had nothing substantive to say here. Paterno stayed too long? What does that have to do with the crimes committed by Sandusky? While I appreciate your assessment of Penn State being an “international powerhouse” I’m not really sure what that means. An international football powerhouse? An academic powerhouse? He was “allowed to do whatever he wanted.” What does that mean? And what facts support that. Here’s a fact. When PSU was planning a new baseball stadium, they wanted to put it right next to the football stadium, because it was cheaper to build it there. Paterno vehemently objected, as the baseball stadium would displace a significant number of football parking spaces. Do you know where the baseball stadium is? Right next to the football stadium where the administration wanted it. So, go back to your law books and learn about using actual facts and evidence to support your case.

  3. Gary Werkheiser Says:

    Mr. Hylton – Thank you for creating a new blog entirely about my response to your previous blog. I’m flattered. I apologize if you found some of my initial comments offensive. Your blog was posted only 3 days after the Freeh report was issued, so many people had not had time to read it thoroughly in that time. You may be an exception.

    This is a very serious matter to me and many fellow Penn State alumni, and sometimes our passion gets the best of us. We do not find the Freeh report credible in many areas, and many people, especially the media, have not read the report. They merely recite its unsubstantiated conclusions, spreading the mantra of a football program out of control and a maniacal leader in Joe Paterno leading a conspiracy of cover up. These facts are clearly not supported by the evidence. And there are serious misgivings about a report which did not speak to many of the parties involved, for whatever reason, as I will address. As an attorney, you certainly understand due process. This report fell far short. I don’t mean to bring my issues with the media’s handling of the situation to bear here. But I do take exception to the general derogatory nature of your response. I would expect better from a law school professor. So game on.

    First, thanks for noting my background. You failed to mention that I’m a third generation Penn Stater, born while my father was a student, so Penn State has literally been part of my entire life. I also was Chairman of the Los Angeles alumni chapter’s charity event to benefit THON, Penn State’s student dance marathon, which has raised over $89 million in its history to fight children’s cancer. Despite my close ties to Penn State, I am able to objectively look at the facts and evidence of this situation, and I take offense to the mishandling of the situation by the media and others such as yourself.

    I have read the Freeh report, many times in fact, paying particular attention to the chapters involving the two incidents at Penn State, one in 1998 and one in 2001. These are the only two incidents that were known by officials at Penn State (the incident with the janitors was never reported, and is used inappropriately in Freeh’s conclusion as further evidence against Penn State officials). I have prepared my own detailed written review of the 1998 incident, which I would be happy to share with you, and I am still working on a written review of 2001. I have read reviews prepared by others as well. So I am very familiar with the Freeh Report. To suggest otherwise is offensive.

    As I stated, there are two emails written by Tim Curley that may indicate that Joe Paterno had some knowledge of the incident in 1998. And those are the only two pieces of evidence linking Joe Paterno to this incident. There is no other evidence to corroborate this, nothing from Paterno himself. The first, as you note, was on May 5, 1998, an email from Tim Curley to Gary Schultz. You have correctly quoted the email. I tend to believe that the reference to “coach” by Curley is to Joe Paterno, although many people close to Paterno and the football team have stated that Paterno was referred to by insiders as “Joe” and Sandusky was referred to as “coach.” Obviously, I was not suggesting that “coach” referred to the woman’s volleyball coach, and your snide comment was duly noted. In any event, this email does not prove that Paterno had knowledge about the details of the incident and there is not one bit of evidence that shows he knew the details. Since this incident was being investigated by the police, Paterno may have only been informed that Sandusky was under investigation. In cases involving children, such information is typically confidential.

    The second email, on May 13, again from Curley to Schultz, also references “coach.” In the May 5 email, the subject was “re: Joe Paterno” which you used to support your assumption that “coach” was in fact Paterno. Well, the subject of the May 13 email was “Re: Jerry” so by your reasoning coach in this case would refer to Sandusky. Again, nothing in this email shows that Paterno knew any of the details of the case. And again, I was not suggesting “coach” referred to the bowling team.

    There is one person who knows whom Curley was referring to, and that is Tim Curley. But we have not heard from him yet.

    This incident, which never included any allegation of sexual assault, was investigated by the police, the county DA’s office, county child services, and State Department of Welfare. The Freeh Report acknowledges that there was no interference in the investigation by Penn State officials. No charges were brought. So your question about whether it was “part of a widespread public effort to protect the football program” has no merit, and only fuels the unfounded speculation that “Joe Paterno knew.” And you are therefore also incorrect when you state that Joe Paterno was aware of Sandusky’s crimes since at least 1998. First, there were no crimes in 1998; there were not even charges brought. Second, you imply that Joe Paterno knew about crimes before 1998, based on what? There is not one bit of evidence to support this.

    You go on to question “public officials” and whether their conclusion was “legitimate.” These public officials included law enforcement and caseworkers trained to handle child abuse. Their conclusions and actions are what mattered. You also state “the decision not to prosecute in no way relieved Joe Paterno of his moral and ethical duty to ensure that his coaches were not exploiting their connections to Penn State to the detriment of minors.” So, even assuming Paterno knew the details of the incident, he was supposed to ignore the results of the investigation and confront Sandusky about crimes that were not committed? He was supposed to understand the situation better then people trained to deal with these matters, law enforcement and child welfare caseworkers?

    Regarding 2001, Paterno was informed by Mike McQueary of an incident in a Penn State shower. McQueary, by his own admission, did not tell Paterno the details. Paterno, in turn, informed his superiors at the University the very next day, one of which, Gary Schultz, oversaw the Penn State police department. That much we know. To say that Paterno knew that Sandusky had anally raped a boy in the shower is speculation. There is no evidence of that.

    A brief overview of Mike McQueary’s story, in case you are not familiar with all of this (I am giving you the benefit of the doubt, unlike you). While his testimony is on the record, McQueary’s statements in public have varied over time. Also, immediately after witnessing this incident. McQueary went to his father’s house and talked to his father and Dr. Jonathan Dranov, his father’s supervisor. McQueary’s father and Dranov are both physicians, yet neither told McQueary to call police. Dranov has stated that McQueary never told them he had witnessed a sexual assault. Further, Dranov was a witness for the defense in Sandusky’s trial. Schultz and Curley’s testimony is also consistent in this regard, that McQueary did not tell them about a sexual assault. And as we know, they both have trials pending. Finally, Sandusky was acquitted of the rape charge for the incident that McQueary witnessed. So, what McQueary witnessed and what he told others is certainly questionable.

    You state that Paterno “failed to take meaningful action upon evidence of continued abuses of young boys by Sandusky.” Again, if Paterno did not know about 1998, then he had no knowledge of continued abuses. And if he did know about 1998, he knew that no charges were filed and therefore there was no abuse. Take meaningful action? He reported to his superiors (which included the head of the police department) what was told to him by McQueary, an incident that was not described to him as rape. Last time I checked, law enforcement and criminal investigation are not part of the job description of a football coach.

    With regard to the people that the Freeh investigation did not interview, I have read the report and understand why they could not interview certain people. That doesn’t diminish the significance of my statement. The very fact that the investigation did not have the benefit of testimony from KEY parties involved in these matters severely weakens the conclusions and assumptions of the report. Curley and Schultz, in particular, have knowledge of the conversations and emails that are so critical in Freeh’s conclusions. You incorrectly state the possibility of criminal charges against McQueary and Harmon. No such statement is made on Page 12. This was only a request by the Attorney General and Mike McQueary has stated publicly that he wanted to speak to the investigators. While Ray Gricar, the district attorney of Centre County in 1998, is dead, Karen Arnold was the prosecutor from the DA’s office who was assigned to the case. If you read the report, you would know this. She was not interviewed. So my criticism in this regard is neither uninformed nor disingenuous. I would also add Wendell Courtney and Cynthia Baldwin to the list of people not interviewed. I don’t need to explain who they are; it’s in the report.

    I will not even address your outrageous suggestions about how Joe Paterno should be punished. I will not address the sanctions imposed by the NCAA beyond their authority in a criminal matter, despite the fact that Penn State violated NO NCAA regulations. I will not address the credentials of Louis Freeh, which are certainly an issue. I will not address the fact that The Second Mile, the charity organization that Sandusky founded, the place where all the victims came from, the place where Sandusky spent his time for the last 12 years (not at Penn State), has not been investigated, while all of the focus has been on Penn State and Joe Paterno.

    You don’t understand me at all. I did not idolize Joe Paterno. I respected and admired him. I did not misstate any facts. And you certainly upped the level of ad hominem attacks. I did not refer to Paterno as a saint. This label came from the media. Attacking Paterno for the money he made? Crass. Worshipped the Penn State football program and his own image? Hardly. Chose to protect the reputation of his program over children? Never happened.

  4. “Even if Mr. Werkheiser’s arguments that the Freeh Report does not establish that Paterno had knowledge of the 1998 incident were correct, that fact would only push the date of Paterno’s culpability forward to 2001, when he clearly failed to take meaningful action upon evidence of continued abuses of young boys by Sandusky.”

    We know that Paterno reported whatever was told to him to his administration, one of which was in charge of the police department. This was the moral and legal obligation. We do not know what Paterno was told of the subsequent handling of the case – all else on your part is assumption. Your “meaningful action” is speaking from hindsight. Paterno did the right thing, despite the vague accusations from McQueary, despite the fact that Sandusky was a trusted friend for decades.

    In 2001 Sandusky was not employed by PSU or Paterno, but rather Second Mile. When Second Mile was told of the 2001 allegations by Curley, why did they do nothing? Second Mile is the ultimate responsibility, had information on Sandusky, had the responsibility to call authorities, not Paterno.

  5. Mr. Hylton:

    Your response to Mr. Werkheiser states that those not interviewed had many (valid) reasons. Why they were not interviewed is irrelevant to your argument. Incomplete is incomplete.

    In addition, due process has not been had by those who were brought up on charges, with the exception of Jerry Sandusky, who I believe wholeheartedly is guilty.

    You also did not address Mr. McQueary’s obligation to report the abuse immediately. He did no such thing, yet it remains that he has not been charged nor crucified in the press. This apparent double standard infuriates me. As I child abuse victim, I believe he had an obligation that evening and he failed it.

    Your original discourse, from my perspective, pushes the opinion that it is acceptable to impose sanctions (which the NCAA has no authority to do) BEFORE proving guilt in a court of law.

    To my mind, the assumptions you make based on your opinion of the data are ironic (again based on your original posting and response to Mr. Werkheiser).

    I would expect more than a blanket acceptance of a flawed report as the (seemingly) majority of background of your discourse.

  6. As for Gary Werkheiser’s comments, it’s nice to stick up for your alma mater, but me thinks thou doth protest too much. Let’s consider who did not protest the Freeh report and the NCAA sanctions – Penn State. If the school itself is not complaining, that pretty much says it all.

  7. Steven Cochran Says:

    I would like to hear from Professor(s) Blinka, Hammer, O’Hear etc. . . as to what, if any, of this ‘evidence’ would actually have been admissible had Joe Paterno actually been afforded due process (in either the civil or criminal realm).

    I think there’s just too much torch & pitchfork mentality. Punish Sandusky, not the kids at Penn State who did nothing wrong.

  8. Aileen J. Dingus Says:

    “However, the decision not to prosecute in no way relieved Joe Paterno of his moral and ethical duty to ensure that his coaches were not exploiting their connections to Penn State to the detriment of minors.”

    What, exactly, was Joe Paterno supposed to do? Follow Sandusky around? Assign a watchdog to keep JS away from kids? Sandusky was never charged with a crime, never arrested for anything at that point. Paterno would have been accused of slander, at the very least.

    And he DID try to keep 2nd Mile kids at least out of the football facilities. In 1999 Sandusky retired and asked for special perks after he retired, including ‘access to training and workout facilities.’ In a handwritten note by Paterno on this proposal (Exhibit 2G) it reads: ‘Is this for personal use or 2nd Mile kids. No to 2nd Mile. Liability problems.’

    So, at least as far as keeping kids out of the football facilities, for whatever reason, Joe Paterno did make an attempt, and, as we see- he was turned down, effectively negating the tired “What Joe Paterno wanted, Joe Paterno got” refrain that so many people like to reiterate.

  9. Gary Werkheiser Says:

    You are incorrect, Mr. Zales. The Board and the President have their own agenda, to get this over with quickly and move on. They are not interested in the truth. The Board hired Erickson, so they will stand behind him, or else admit their own failure. The Board hired Freeh, same thing. The Board hastily fired Joe Paterno, now they have a report that supports that decision, right or wrong.

  10. Caroline Dixon Says:

    I’d like to know how you concluded WHAT Joe was told by Mike McQueary in 2001 since nothing sexual was indicated in the Grand Jury testimony (NOT the presentment). WHAT Mike told Joe is highly speculated upon and not yet proven to constitute abuse or reportable. He was in the shower with a boy and Mike thought it inappropriate. Joe reported it to his supervisors (as required by PA law) and they told the Second Mile as the law indicated. Mike did NOT SEE anything and Joe followed through on what was required. Joe did not know Jerry was a monster. Why is it SO hard to believe that when social workers who investigated Sandusky and placed foster kids with him, allowed him to adopt… did not know? Joe has clearly been held to a higher KNOW ALL standard than trained professionals in this matter and by whom? The media, jealous haters, and the UNIFORMED. Your above responses to the Freeh report are continued mere speculations and STILL does not prove anything, yet you remain so quick to accuse. Why is that? If we could allow DUE PROCESS to run its course and stop speculating, we might just see the actual TRUTH come out!

  11. Joseph Hylton Says:

    For an analysis similar to the one advanced above, see Andy Staples’ article at

    http://sportsillustrated.cnn.com/2012/writers/andy_staples/07/12/penn-state-free-report-joe-paterno-jerry-sandusky/index.html.

  12. Aileen J. Dingus Says:

    Thank you, Mr. Hylton, for that extra link.

    However, I’m interested to see your response to my question- What exactly do you think Joe Paterno was supposed to do “to ensure that his coaches were not exploiting their connections to Penn State to the detriment of minors.”

    Remember- the 1998 investigation resulted in no arrest or conviction, and by 1999, Jerry Sandusky was no longer even a Penn State employee, let alone one of Joe Paterno’s coaches.

  13. Gary Werkheiser Says:

    Mr. Hylton, I have challenged your points in your original blog, and in this new blog, with details and facts from the record, and counter arguments to the outlandish conclusions in the Freeh report drawn from facts not in evidence. I don’t know the purpose of your latest comment here – posting a link from a Sports Illustrated article, from July 12, the day the Freeh report is issued, because they agree with you? Is this some new legal strategy, I read it online, so it must be true. I really mean no disrespect, I am just trying, where I can, to inform people of the facts, and what we don’t yet know, in the hope that they will better understand this horrible situation. We have been tried in the media, and I understand that’s their job, to ignore facts and focus on ratings. But again, I would think you would not fall in with this same lunacy.

  14. Mark Kubiske Says:

    Responding directly to Mr. Hylton’s blog statement that “coach” in the 1998 emails refers to Paterno. Mr. Werkheiser correctly pointed out that Paterno was widely referred to as “Joe,” even the players called him “Joe,” not “coach.” Sandusky, on the other hand, was routinely referred to as “coach.” Moreover, close observation of Exhibit 2A, the email from Curley entitled “Joe Paterno” was responded to by Gary Schultz. But, Schultz’s signature block is not shown. Compare with Exhibit 2B, which clearly shows Schultz used a signature at the bottom of his emails. Some portion of the email chain presented as exhibit 2A, is missing. How much, I wonder?

    Now let’s talk about 2001 and this supposed cover up. 1) McQueary’s story changed continually leading up to the Curley & Schultz prelim hearing. It seems he wasn’t quite sure of what he remembered seeing. 2) McQ testified, in the Curley & Schultz hearing, he observed, in three separate glances in a mirror for a total of about 2-3 seconds, Sandusky standing behind a boy about 10-12 years old, with his arms around the boy, and both were standing upright. That’s in the transcript from the hearing. 3) McQ reports to Paterno, who then reports to Curley & Schultz, who in turn talk directly with McQ. 4) Curley & Schultz review the file from the 1998 investigation wherein the boys describe Sandusky giving them bearhugs from behind. Curley & Schultz observe that no arrest was made. 5) Curley & Schultz communicate with university counsel. 6) Curley, Schultz & Spanier conclude to not notify Pennsylvania Department of Public Welfare (DPW).

    Now let’s talk again about the 1998 investigation. Victim 6′s mother arranged for the boy and one of his friends who also had contact with Sanudsky, to talk with Child Pychologist Chambers. Chambers’ report concluded Sandusky exhibited signs of serial pedophilia. Chambers’ report was provided to Centre County Child and Youth Services (CYS) case worker Miller. But CYS referred the case to DPW because CYS had conflict of interest with Second Mile (which seems very odd). DPW assigned case worker Lauro who arranges for unlicensed contract worker Seasock to interview the boy and Sandusky. Assistant DA Arnold ordered suspension of the interviews. Lauro told police, his supervisor at DPW ordered him to proceed with the interviews despite the order from ADA Arnold. Seasock conducted the interviews, and concluded there was no criminal activity and no pattern of serial pedophilia. Neither Seasock nor Lauro were ever aware of Chambers’ report. In addition, under Pennsylvania law, DPW was required to notify the Second Mile that Sandusky was being investigated for Child molestation – the notification was never issued.

    Where is the cover up?

  15. Joseph Hylton Says:

    I appreciate the detail of many of the above comments. Although I am not convinced that the “coach” of the emails at issue was not Paterno, I will concede that there are still issues to be explored.

    This is an issue that has clearly divided the world of sport into warring camps.

    Now that the Curley and Shultz trials are scheduled to begin in early January, we should know before too long if there are in fact problems with the Freeh Report.

    If Paterno is exonerated and if it turns out that the Freeh Report contains serious errors, the wins can always be restored and the statue can be returned to its moorings.

    Joe Posnanski’s soon to be published Paterno biography may also shed additional light on these issues.

  16. Richard Kirkland Says:

    I am not a Penn State fan (Roll Tide) but I think it’s reprehensible how Joe Paterno, the man who put Penn State on the map, was treated in this case. Furthermore I can’t believe the NCAA would jump to such conclusions without definitive proof! They are punishing students\players and fans that didn’t even attend Penn State when all this was going on… some of them were only 4-5 years old when it started, or not even born if you believe it started well before 1998!

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