A Modest Defense of Joe Paterno

by Kurt Schulzke

As a father, coach, college football fan and attorney for whistleblowers, I have watched the Penn State scandal unfold with equal measures horror and fascination.  Some have asked my opinion.  Others have offered theirs. One told me, “Paterno becomes the biggest human disappointment I remember…. I’m not sure I’ve ever seen a drop so far in my personal estimation of a human being.” It’s a painful confession but one with which I do not yet agree.  I will go on admiring Joe Paterno until I see real evidence he doesn’t deserve it.

I am disappointed but not surprised at the public reaction on all sides.  Maybe “public reaction” is too mild.  How about “high-tech lynching”?  What happened to Clarence Thomas was mild by comparison.  Whatever we call it, it says scary things about the state of our union and our tattered notions of due process.  If the allegations in the indictment are true, children have been seriously traumatized and someone is a monster.  But this is a big “if.”  For me, it is way too early to draw conclusions about individual roles and responsibilities even accepting as established fact everything the indictment says.

This snippet from Sunday’s Boston Herald suggests that Paterno deserves more consideration than he has so far been given:

 A spokesman for the state attorney general’s office is questioning why Curley, who has taken a leave of absence, remains on the Penn State payroll.

“We find it extremely interesting that a senior administration staff who has been charged with a crime [Curley] remains on the Penn State payroll, while an employee (Paterno) who is a cooperating witness has been terminated,” said attorney general spokesman Nils Frederiksen. “That causes us reason for concern.”

I share the concern.  I fear that in their outrage over the alleged violation of innocent children some are mindlessly tearing other innocents to shreds.

About the allegations themselves, we know only that a Pennsylvania grand jury was sufficiently persuaded by a one-sided presentation by prosecutors (whose witnesses were not cross-examined before the grand jury) that enough evidence exists to put on a trial.  The trial will determine (a) whether children were sexually assaulted multiple times at PSU, (b) whether PSU officials (not including Paterno) failed to report sexual assault allegations as required by law, and (c) whether the same officials lied to the grand jury about their response to the allegations.  Grand juries do not establish guilt.  They only authorize prosecutors to take their case to a court authorized to validate facts — through due process and adversarial cross examination — which may or may not add up to guilt under the law. If the allegations are true, Jerry Sandusky is a sick pedophile and a felon.  But even if they are true, Paterno’s role is unclear.

Over the weekend, I had an illuminating interchange with friends.  Here’s the essence:

Friend:  If Paterno knew there was ANYTHING of “a sexual nature” going on, he was duty bound to get to the bottom of it.

Kurt: And that’s what we don’t know: what he did to get to the bottom of it.

Friend:  I think if Paterno had a defense we would have heard it already.

Kurt: I disagree.  The speed of the media onslaught has been overwhelming.  No time for Paterno to explain anything.  The guy is 84 years old. He’s used to calling plays, but not these kinds of plays.   First, the grand jury notes that Paterno did report the allegations to Schultz who was the ultimate boss of the PSU Police.  For all we know, after doing so himself, Paterno may have encouraged McQuery [who says he witnessed Sandusky raping a boy in 2002] to go to the police with his story. If Paterno knew that McQuery had gone to the police, I can see Paterno saying to himself, “It’s in the right hands, now.  If Sandusky needs to be arrested, the police will handle it.”

Friend: But the idea of them [PSU Police] having jurisdiction here is laughable.

Kurt: It’s no joke from where I sit.  If a witness like McQuery were to tell me a similar story, the campus police would be my first and probably only call.  I’d leave the investigation (and further action) to them.

Friend: So, let’s say that this person is a subordinate of yours and you serve on the board of his charity, which involves close interaction with boys and your assistant witnessed “something of a sexual nature” with a 10 year old boy.

Kurt: The campus police are full-fledged police with primary jurisdiction over the matter.  If I call 911, my call may be routed to them anyway.

Friend: You would either call the police or have the witness call the police and drop it? You wouldn’t follow on your own and find out what the hell was going on, and find out if it was dropped, why it was dropped, and make damn sure it could never happen to anyone else, at least not through your institution?

Kurt: I believe that our State law requires me to personally report to LE.  But I’m not sure that this is true in PA.

Friend: Oh, well I don’t give a damn what state law requires. I think that is what the PSU board of trustees is saying.  Ethical obligations have almost nothing to do with state law. No, you get to the bottom of it and get the perv [sic] either arrested or at least destroy his access to boys. You don’t report it and then look the other way in the deafening silence.   See http://espn.go.com/college-football/story/_/id/7221684/the-tragedy-penn-state-nittany-lions-coach-joe-paterno.

Kurt: You are taking a strangely hard line with Paterno given the paucity of information available.  You should know how unreliable and hyperbolic the media can be.  The ESPN link above — which is not to the indictment — includes this misleading question:

“Why didn’t Paterno contact the police when first informed in 2002 by then-graduate assistant Mike McQueary of an alleged locker room incident involving Sandusky and a young boy?”

ANSWER: Effectively, he did so, according to the 23-page grand jury excerpt which has been made public.  Paterno went one better than reporting the 2002 incident to the police by going to the PSU official, Schultz, to whom the University Police themselves reported.  Keep in mind that in 1998 a similar incident was investigated by PSU police who decided not to prosecute.  It was after that, in 1999, that Paterno decided to let Sandusky go.  I don’t quite understand what more people think — based solely on the available grand jury excerpt — Paterno should have done.  He went straight to the top: to the boss of the University Police.

As to Paterno “getting to the bottom of it,” it would be especially important that Paterno refrain from involvement — except as a cooperating witness — in investigation of the 2002 allegations against Sandusky.  If someone alleges that your subordinate engaged in serious wrongdoing under your nose, you should not attempt to “investigate” the allegations.  The appropriate response is to inform your superiors and recuse yourself to avoid even the appearance of meddling or obstruction.  This appears to be what Paterno did.

Friend: Kurt that’s an interesting detail that the University Police report to the President – however, given the scary detail of what McQuery saw, it’s just impossible to absolve Paterno of some level of gross, unethical negligence. Knowing what McQuery had seen and then finding that the guys at the top weren’t taking action, he needed to take further action.

Friend: So here are two questions:

1.  Sandusky suddenly retired at the age of 55 in like 1999 right?  Why did he suddenly retire?  Is there any reason to believe that his retirement was not part of a cover-up?  Is there any reason to believe that the board of trustees was not aware of this last week, and factored that in?  And don’t answer with “burden of proof” because this is not a legal question per se.

2. In 2002 a graduate assistant witnesses a rape and comes and tells you.  His report includes painfully graphic descriptions of sounds and visuals that are very unambiguous.  Somehow, you translate this to “something of a sexual nature.”  OK, let’s grant your dumbing down.  If something of that “nature” occurs with a young boy in your locker room, and you are Paterno, don’t you have an obligation to bring the boy and his parents in and talk to them?  Don’t you have an obligation to ensure that the grad assistant is protected and directly confronts Sandusky about the events?  Don’t these events have implications for your institution that FAR exceed the minimum legal requirements of notifying the Keystone cops at your Keystone State University campus police?

Kurt: The information necessary to fairly accuse Paterno of “some level of gross, unethical negligence” is not yet in the public domain.  It may never be.  But for now, it is grossly unethical and negligent — not to mention entirely unnecessary — to pretend to the level of understanding that would justify destroying Paterno’s reputation.  Those who are engaging in this kind of character assassination should hold their peace pending the outcome of the various investigations.  Holding peace at this point is not merely a legal duty but also a moral one:

1. As to Sandusky’s sudden retirement, we just don’t have enough data yet to say why he suddenly retired or to conclude that his retirement was part of a cover-up.  Temporal proximity is not causation.  The PSU Board have offered precious little justification for their decision to fire Paterno: “We just thought it was time,” or something to that effect.

2. Neither the grand jury indictment nor anything else I have seen makes clear

(a) what precisely the grad assistant told Paterno, or

(b) what, precisely, Paterno told the boss of the University Police.

Hence, it is unfair to insinuate (at this point) that Paterno “dumbed down” what the grad student told him.  Paterno’s first move should be to convey to LE (law enforcement) the essential import of the grad student’s report.  The indictment at least suggests that he did this.

Once LE have been properly notified, Paterno should support the LE investigation by making himself and his staff available for questioning.  Meanwhile, it is the responsibility of PSU LE, upper PSU administration, and Paterno to ensure that the alleged perpetrator (b/c at this point, all we have are allegations) has no further access to potential victims on PSU property or through PSU-sponsored activities.  Paterno should do nothing on his own to arrange for a confrontation b/t the grad student and Sandusky. This could interfere with LE’s criminal investigation and might constitute a separate act of retaliation against the grad student whistleblower.

I don’t know anything about PSU’s LE but if Paterno were dealing with KSU’s LE, he would be entitled to rely on their handling the investigation and calling in other agencies as necessary.  In fact, anything that he did to interpose himself in that investigation could be interpreted as obstruction.  At some point — once it becomes crystal clear that the wrongs are real — with LE’s knowledge and acquiescence, Paterno should offer condolences to the known victims.  But until he knows for sure that the allegations are true, individualized condolences or apologies are premature.

Friend: I just disagree.  I think this kind of legalistic approach feeds cover-up. I think the fallacy here is by focusing purely on criminal law.  Yes, you should not trip on a criminal investigation, so long as it is underway.  But if the DA drops the case, then you are still subject to civil law, and civil lawsuits.  You still have to protect your institution, and you still have an ethical obligation to protect your people.  What the DA does with the facts is one thing, what you do is almost unrelated.  My take on the Board is this:  they knew enough to act and to act quickly.  It was their job to do so.  We don’t know all they know, but we know enough to be utterly creeped out. The details the grad asst offered the grand jury were so vivid, violent and wretched that there is NO WAY that he communicated to Joe a mere vague horseplay notion.  I just think it strains credulity.

Kurt: I have most definitely not focused “purely on criminal law”.  Until the allegations are proven, they are merely allegations.  Grand jury indictments are notoriously slanted and inaccurate.  Prosecutors present their case, typically focusing on the most inflammatory material, without presenting counterarguments.  No one cross-examines the witnesses.  Defense counsel are not present.  DAs sometimes have political motivations.  An indictment means only that the grand jury are persuaded by a one-sided recital of “facts” that there is enough apparent evidence to justify a trial to determine the facts.

The Board want to appear as if they are doing “something” in response to the allegations.  I can well imagine that plenty of folks were just tired of Paterno and wanted him gone.  What a great opportunity to finally can the old guy.  You must protect EVERYONE in this situation, including Paterno and Sandusky in exactly the same fashion that Duke had a duty to protect the accused lacrosse players until after real wrongdoing was proven.  Given the distasteful nature of the 2002 allegations, it is entirely possible that the grad assistant dumbed down the event for Paterno.  The indictment is not conclusive on what Paterno told Schultz.

This part of your note is telling: “What the DA does with the facts is one thing, what you do is almost unrelated.”  What “facts”?  The facts are the question.  What should be done in this situation is to freeze the players (and their reputations) in place to mitigate the risk of further harm to alleged victims (if any harm has yet occurred) AND to prevent defamation of people whose “negligence” or intentional wrongdoing must be proven in a court of law — following a fair process including the rules of evidence — not in the kangaroo court of public opinion. Anything short of this fair process is tantamount to burning witches.

McQuery, however, is a totally different story.  Assuming McQuery’s story (as recounted by the grand jury) is true, McQuery should have clocked Sandusky on the spot and dialed 911.  It’s mind-boggling to think (at least as the indictment suggests) that he just walked away from (what he says was) a rape in process.  But maybe, as Allahpundit asks rhetorically, he didn’t.  Indictments are not meant to tell a complete story.  They are intended to justify the telling of the whole story in a court of law.

Friend:  Bottom line: institutions are not obliged or even entitled rely on legalism and the legal process before acting.  A college administrator who witnessed this kind of crap and hushed it up would be canned regardless of what the law did or didn’t do, and they would not wait for the law to can him.  And the board that did the canning would not feel obliged to make explanations.  In fact, they would likely refuse to do so.

The PSU board here felt that they knew enough to know that there had been serious negligence on Paterno’s part.  They didn’t feel obliged to detail that, but they don’t have to.  However, that sense of borne out by what we already know, and the logical connections that we can make on our own.  The grad asst saw graphic and horrible detail.  No reasonable person would suppose that this horrible detail would then be offered to Paterno in a Clean Flix edit.  Paterno hushed it up. And in fact, it was probably this telephone game that started the fumbling failure up the chain of command.

But the bottom line is that this is not a court of law.  This is an institution acting to protect itself and the people who move through it.  They are totally different imperatives, and it’s folly to confuse them.

Kurt:  “What we already know” is basically nothing except (a) a grand jury saw enough smoke to call for a trial to learn what really happened and (b) an 84-year-old pillar of the community ambiguously laments his failure to “do more.”

Why anyone on the outside would want to so quickly condemn anyone involved in this case — including Paterno — is a mystery.  What advantage do you perceive in doing so?  No evidence available to us suggests that any administrator at PSU “witnessed” anything.  Not Curley, not Paterno, not Schultz.

You appear to be defending the PSU board of trustee’s firing of Paterno.  All I’ve said is that you don’t know enough about their motives to take a position on it.  Certainly, in this convo you’ve offered zero evidence (in terms of board statements or fairly-tested facts) to support the hard line you’ve taken.  Currently, the case in proceeding in at least four venues: this conversation; the badly-informed, media-slanted court of public opinion; a PSU internal investigation; and a court of law.  It was previously “tried” by the PSU Board of Trustees who, as a Board, have effectively offered no explanation for their decision.

One trustee, however, has reportedly spoken to the Boston Herald:

Why did the trustees rush to judgment? Intense media attention and public outrage compelled them to take immediate action against coach Joe Paterno and President Graham Spanier, according to a trustee who spoke to The (Allentown) Morning Call.

The board feared any delay would only fuel the frenzy outside, said the trustee, who asked to remain anonymous.

“Every day it was going to get worse and worse,” he said.

“Delay would fuel the frenzy outside.”  In other words, Paterno was sacrificed to placate a mob.  Or so a reasonable jury could conclude on the basis of evidence currently available.  Another intriguing note from the Herald story:

The trustee who spoke to The Morning Call described Wednesday night’s decisive two-hour board meeting as “somber.” He said Gov. Tom Corbett, a trustee himself, participated in the discussion via conference call and fully concurred with the unanimous decision to force Paterno and Spanier out.

 “The fact that someone saw something wrong and did not take the time to ask the right questions, that’s the part it all goes back on,” the trustee said.

“That someone saw something wrong,” ergo someone must be fired to protect the Board.  Paterno heard from the grad assistant and relayed it to the boss of the University Police who did what?  We just don’t know enough to say whether Paterno acted appropriately.  We do know that a sitting governor can be counted on to do the mob’s bidding by firing someone, anyone, to save his own political skin.

The Penn State scandal is a complex tragedy involving layers of victims, bureaucrats and whistleblowers.  Among the whistleblowers, in order of their appearance, are McQuery, Paterno, Victims 1-8, and the anonymous member of the Board of Trustees who has shed some light on why the Board suddenly terminated Coach Paterno.  Many have suffered harm.  While some of that harm may be justified, the general public do not yet have the facts to draw fair conclusions.  A society whose very core is ordered liberty and due process of law owes itself and the players in this sorry drama a more thoughtful, considered examination of the facts.  In this vein, Penn State’s sudden firing of Joe Paterno — a still honorable man whom prosecutors have specifically identified as a cooperating witness — did not help.



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