The Nittany Turkey

Primarily about Penn State football, this is a tale told by idiots, full of sound and fury, signifying nothing.

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Costas didn’t speak, but we listened

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The hockey game went into overtime, so have another cup of coffee. You’ve earned it. Costas wound up getting bumped back to 11:40, so you struggled to stay awake. (Not I — I was still wound up from a tight, hotly contested hockey game that was almost ruined by a controversial referee’s call in the waning moments of regulation time. In the end, though, that call was mitigated by the winning goal being scored by Chicago in overtime. But I digress.)

If you were hoping that the great, albeit diminutive, god of sports journalism was going to take a pro-Penn State stand, you were grossly disappointed by Costas stating that he was moderating, not advocating:

“…when word got out that we’d be doing this program, some might have thought that we would be taking an advocacy position. We are not.”

He went on to say that the program couldn’t cover the subject with any degree of depth and then pointed viewers who wanted more detail to web sites where they could obtain the Freeh report and the Paterno/Sollers report. Costas made it clear that the viewpoints to be presented on his show would be one collection of opinions expressed by the Paterno family, as represented by Dan McGinn, Dick Thornburgh, and Wick Sollers, not necessarily endorsed by him or NBC Sports. He would allow them to present their case without hostile questioning.

Well, geez! What about all the crap about Costas changing his mind and having misgivings about the Freeh report? That must have evaporated somewhere between the Kevin Slaten radio show and the offices of the NBC corporate counsel. Probably closer to the latter. Nope. Don’t want NBC involved in endless court cases. Be neutral, Bob. Be neutral.

Well, that took the wind out of lots of sails — wayward ships of fools hoping that Costas would set them on a straight course to maritime nirvana or something. (I’m so full of shit this morning.) In any case, much of what would be laid out on this program amounted to tedious repetition of stuff we already knew.

Costas did mention that he invited Mark Emmert and Louis Freeh to appear, but they declined. They have an open invitation from Costas to make fools out of themselves at any time. That ain’t gonna happen. He said that had they shown up, the questioning would have been quite different, indeed becoming a point and counterpoint discussion. Gloriosky, Bob! Woulda, coulda, shoulda! The saddest four words of thought or pen: what might have been.

And so, with the groundwork laid, each of the players stepped up to the plate and took a few swings. The discussion went on for a while, touching on areas of which we are all aware. (If you’re new to this whole thing, you’re in the wrong place. Like Costas, I won’t be discussing particulars of the Freeh report or the Paterno report. We’ve beaten that necrotic horse repeatedly here. I’m concerned only with what went down last night, and most of it was not new ground.)

The newsworthy event of last night, for which we were well prepared by afternoon leaks, was the announcement by Paterno family attorney Wick Sollers that the the family, joined by certain others, would be filing a lawsuit against the NCAA to vacate its draconian sanctions against Penn State that were based solely on the flawed results of the Freeh report, claiming “unlawful conduct” by the NCAA.

The suit will be filed today in Common Pleas Court of Centre County. It asserts that the NCAA, its president, Mark Emmert, and former chairman of the executive committee, Edward Ray, acted in clear and direct violation of the organization’s own rules. The consent decree with Penn State was hastily imposed on the University, completely disregarding the rights of the affected parties.

“An illegally imposed penalty that is based on false assumptions and secret discussions is a disservice to the victims and everyone else who cares about the truth of the Sandusky scandal,” Sollers said. “This matter will never be resolved until the full facts are reviewed in a lawful and transparent manner.”

The co-plaintiffs in the suit are worthy of note. Aside from the Paterno family, trustees Ryan McCombie, Anthony Lubrano, Al Clemens, Peter Khoury, and Adam Taliaferro; along with PSU faculty members Peter Bordi, Terry Engelder, Spencer Niles, and John O’Donnell; plus former Penn State football coaches Bill Kenney and JayPa; and finally, former Nittany Lions Anthony “Spice” Adams, Gerald Cadogan, Shamar Finney, Justin Kurpeikis, Rich Gardner, Josh Gaines, Patrick Mauti, Anwar Phillips, and Mike Robinson.

Also worthy of note is that the suit names Mark Emmert and Edward Ray as co-defendants.

The official media release issued by McGinn’s firm states:

The lawsuit lodges six counts against the NCAA, Emmert and Ray, including breech of contract, civil conspiracy, defamation and commercial disparagement. In addition to overturning the sanctions, the lawsuit seeks compensatory and punitive damages from the NCAA for its improper conduct and breach of contract, as well as reimbursement for legal costs. With respect to the Paterno estate, it will donate the net proceeds of any monetary recovery from this lawsuit to charity.

The family’s official position is that they’re not primarily seeking to restore Joe Paterno’s good name and reputation, which have been immutably tarnished by the Sandusky scandal. Instead, they are seeking truth and justice for all. Obviously, they’re not interested in the money if they’re going to give their winners’ share to charity. But beyond the official position, the family (and most of us) want redemption for Paterno.

When Costas asked McGinn if the family would be happy if the public opinion eventually shifted to paint Paterno as a good man who lived the right way but who became negligent in later years and should have been more proactive in dealing with Sandusky, the response from McGinn was a flat “No.” He went on to say that Joe was a moral man who was fooled by an “incredibly sophisticated criminal”. Clearly, as family spokesman, McGinn is seeking complete exoneration for Paterno.

Wick Sollers opined that the NCAA would do anything within its powers and budget to keep this case from going to trial because discovery would be painful. That’s the crux and that’s why we’re all licking our chops thinking of the veritable feast that lies ahead if either this case or Corbett’s suit (or both) are allowed by the courts to proceed. The NCAA has the money and the legal talent to conduct a withering battle, though. It ain’t going to be easy.

No doubt, the NCAA will point out over and over again that Penn State (in the personage of Rod Erickson) signed a consent decree, laying itself at the NCAA’s feet crying mea maxima culpa. The Sollers suit will counter that with the notion that the consent decree was a midnight “cram-down”, signed under duress and under the threat of complete shutdown of the football program for a period of time, which violated the NCAA’s own rules. We are already quite familiar with the arguments on both sides of that debate.

Who knows where this will go. Given the NCAA’s ability to outspend its opponents, we could be dealing with years of legal bullshit. Many important facts will arise out of the criminal cases against Spanier, Curley, and Schultz, but will they have any bearing on this lawsuit (or Corbett’s)? The NCAA will wear us down. Eventually, passion will fade and this whole thing will become just so much background noise. We might have to be content to dent Mark Emmert’s impervious shell, rather than vaporize it.

The suit will be filed today. Here it is.

 

Report vs. Report: Standing at the Urinal

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The biggest deal thus far on Catch-Up Monday is the issuance of the report compiled by the law firm of King & Spalding commissioned by the Paterno Family (see Sue’s letter to lettermen), which critiques and impugns the Freeh Report. My irreverent post title is not an attempt to demean the efforts that resulted in the document entitled “Critique of the Freeh Report: The Rush to Injustice Regarding Joe Paterno”, which since its publication yesterday has been referred to colloquially as the Sollers Report and the Paterno Report; nevertheless, I can’t get the image of dueling reports out of my twisted brain — I have to wonder whether Louis Freeh will counter this report with another formal report that invalidates its findings. The page count thus far between the two existing reports has topped five hundred. The report pissing contest has indeed commenced.

“Rank speculation. Innuendo. Subjective opinions. This rhetoric, not objective facts and evidence, forms the core of the Freeh report’s conclusions regarding Joe Paterno.” —The Rush to Injustice Regarding Joe Paterno

Wick Sollers, Managing Partner of the Washington D.C. office of the law firm of King & Spalding, is the Paterno Family’s attorney, whom they chose to coordinate an investigation of the notorious Freeh Report. The Freeh Report has been impugned, maligned, and assailed since the day it was first released, due to its many inconsistencies, shoddy investigative procedures, and improperly derived conclusions, yet it was never questioned by the Penn State Board of Trustees, who commissioned it. Furthermore, it served as the basis for the NCAA’s draconian sanctions levied against the University. With such far-reaching consequences in mind, it is remarkable that the Board of Trustees merely accepted the report, leading many to believe that the BoT essentially paid Freeh to corroborate a version of a story that the BoT previously subscribed to.

One of the significant “findings” of the Freeh report involved the conduct of Joe Paterno in relation to the Sandusky affair. Without ever having interviewed Paterno, and basing its conclusions on mainly hearsay with many leaps of faith, the Freeh Report essentially implicated Paterno in a cover-up, alluding to his status as an unassailable football god at Penn State. His character thus besmirched, as mentioned above, his widow Sue felt compelled to vindicate what she and her progeny believed to be a gross misrepresentation of the family patriarch.

Sollers assembled a team led by former U.S. Attorney General and former Pennsylvania Governor Dick Thornburgh (I’ll see your former FBI Director and raise you a former Attorney General) to investigate the Freeh report. The result, available on paterno.com, is tiled “Critique of the Freeh Report: The Rush to Injustice Regarding Joe Paterno.”

If the BoT hired Freeh to hammer down their favored story of what happened, and the Paterno family hired Thornburgh to say it wasn’t so, what’s the next move? The BoT engages Bill Clinton to say Thornburgh’s report is full of shit? It’s a grand scale pissing contest! Just kidding. I digress.

Nevertheless, when you dig into the report, you’ll find that it is a summary, stand-alone report, backed by three separate stand-alone efforts by three preeminent investigators from three different backgrounds, which are included as appendixes. Some of these appendixes have appendixes of their own, and by the time I skimmed the entire document, I was getting appendicitis, already.

Among other things, the Sollers Report found that:

  1. The allegation is false that Joe Paterno participated in a conspiracy to cover up Sandusky’s actions.
  2. There is no evidence to support the allegation that the football culture at Penn State was to blame for Sandusky’s crimes.
  3. Freeh’s failure to conduct interviews with most of the key witnesses is a glaring deficiency.
  4. Freeh investigators did not have subpoena power and no one testified under oath. Worse, witnesses were allowed to speak anonymously.
  5. The conspiracy claim made by the Freeh report based on a string of three emails falls apart under scrutiny. Because of a technology switch in 2004, most of the Penn State emails for the time in question are not accessible.
  6. The validity and thoroughness of the Freeh report was oversold to the public, leading to the report being accepted in full and without review by the Board of Trustees and the NCAA.

Thornburgh condemns the whole thing as a “rush to injustice” and says that “by supplying judgments without fact, it undermines our faith in justice and due process.”

In the report, a preeminent physician and psychologist from the Johns Hopkins Hospital and School of Medicine, which is I think where House worked, Dr. Fred Berlin concluded:

“I have not seen evidence supporting a conclusion the Joe Paterno had acted in bad faith, nor have I seen evidence supporting a conclusion that he has ever been a man who lacked a genuine concern about the wellbeing [sic] of others — including the wellbeing [sic] of children.

“In my professional opinion, there is absolutely nothing about the way in which Mr. Paterno had led his life, or about his characterological makeup, that would support the unsupported inference that ‘in order to avoid the consequences of bad publicity,’ he had been one of the ‘powerful leaders’ at Penn State who had ‘repeatedly concealed critical facts related to Sandusky’s child abuse from the authorities, the University’s Board of Trustees, the Penn State community, and the public at large.’”

One of the most compelling sections of the report is Section VI: The Freeh report is based on numerous errors and unsupported opinions, categorically:

  1. That Joe Paterno knew that Jerry Sandusky was a child molester and concealed it in 1998.
  2. That Joe Paterno lied in his Grand Jury Testimony, particularly about the 1998 incident.
  3. That Joe Paterno concealed the 2001 incident reported by Mike McQueary as part of a 14-year conspiracy to avoid the consequences of “bad publicity”.
  4. That Jerry Sandusky’s Office was “steps away” from Joe Paterno’s office, and, as one of the most “powerful” people at Penn State, Joe Paterno must have known but concealed that Sandusky was a pedophile.
  5. That a janitor who apparently witnessed Sandusky’s sexual misconduct in the Fall of 2000 chose not to report it for fear of losing his job because Joe Paterno must have known that Jerry Sandusky was a child molester and actively created a culture to harbor a pedophile.
  6. That the Freeh report is neutral and free of bias.
  7. That the Freeh report adequately evaluated Joe Paterno’s  lifetime of integrity in reaching its conclusions.

Precisely what will come of this is anyone’s guess at the moment. However, Louis Freeh has already stuck his foot in his mouth in voicing his response to the report. He stated that during the investigation “we contacted Mr. Paterno’s attorney in an attempt to interview Mr. Paterno. Although Mr. Paterno was willing to speak with a news reporter and a biographer at that time, he elected not to speak with us.” Yet the actual Freeh report sings a different tune, to wit: “The Special Investigative Counsel requested an interview with Paterno in December 2011. Through his counsel. Paterno expressed interest in participating but died before he could be interviewed.” Astounding assholatry on the part of Freeh, don’t you think? You can find the full text of his comments about what he refers to as “the self-serving report” here. The battle of report generating egos has begun.

Well, what did you expect Freeh to say? Something like: “Oh, yeah. Thornburgh is right. We screwed up.”? Nah, he has to go offensively on the defense. The best defense is a good offense. Did Darrell Royal say that? I dunno, but Machiavelli and Mao subscribed to it. Perhaps he was pissed off over the following two paragraphs, which appear on Page One of the report:

In short, Mr. Freeh unilaterally anointed himself the judge, jury, and executioner by deciding to redefine Jerry Sandusky’s personal crimes as a Penn State and Joe Paterno football scandal. That bell can never be unrung, but the many associated errors can be corrected.

Mr. Freeh also violated the most basic notions of due process by offering his one-sided viewpoint without affording any meaningful opportunity for Joe Paterno, his representatives, or any neutral third-party to test and respond to Mr. Freeh’s opinions before he announced them as gospel at a national press conference.

Big fleas have little fleas,
Upon their backs to bite ’em,
And little fleas have lesser fleas,
and so, ad infinitum.

The Sollers report has a two-pronged thrust. First, and most obvious, it is out to redeem the name of Joe Paterno by discrediting the Freeh report, which excoriated him. This is what Sue paid for. But second, Sollers & Company cleverly include dissemination of information about child abusers and their victims, thus presumably playing the “vvvvvvvvvvictimmmmmms” card obliquely or in the very least defusing critics who would play that same card against them. The retention of Jim Clemente, former FBI profiler and internationally recognized expert in the fields of sex crimes investigations, sex offender behavior, child sexual victimization, and child pornography, as part of the team lends credibility to its findings in that area. Clemente makes several key points about the stealth and cunning of perverts like Sandusky, and the ease with which they cloak their clandestine activities from the rest of us unsuspecting and trusting colleagues and friends. Clemente’s findings, incorporated into the report and presented separately as Appendix B, are quite impressive. It is a grandiose, 72-page treatise on pedophilia and child sexual victimization, generally and with specificity to Jerry Sandusky. It has appendixes of its own that provide information in excess of the 72-page body of the Clemente Report.

Additionally, separate reports by Thornburgh and Berlin are included as appendixes.

If you’re keeping score, the Freeh report still wins the poundage battle by a score of 267 pages to 238, although as you know, much of the Freeh report consisted of reproduced emails and scrawled notes.

One more early reaction to the Sollers report comes from Phil Knight, chairman of Nike, a long-time friend of Joe Paterno who turned against him in the wake of the Freeh report. “According to the investigation, it appears Joe made missteps that led to heartbreaking consequences,” Knight said at the time. “I missed that Joe missed it, and I’m extremely saddened on this day.” However, now he sings a different tune. He says he didn’t read the full 267 pages. Knight was indeed swayed by the Sollers report:

“With the release of the report by the King and Spalding law firm, including analysis by former Attorney General Dick Thornburgh and former FBI profiler James Clemente, it is clear that the findings of the Freeh Report were unjustified and unsubstantiated.”

Knight said a lot more. If you want to read it, check out “Knight reverses course on Paterno” on ESPN.com. Big thanks to intrepid Penn State news junkie Joe for the pointer.

I suspect that there will be a cascade of similar reversals in the wake of this report. Reading it will open some eyes, even if a very few read and digest the plethora of facts and opinions incorporated in it. Compared to this report, the Freeh report gives one the impression of a shoddily assembled collection of pseudo-factoids shakily used to draw biased, pre-ordained conclusions. In this writer’s opinion, in spite of the poundage advantage of Freeh’s 267 pages, Sollers and company have won the pissing contest.

Now, let us sit back and wait for the next crow-eater to emerge. This should be fun. You can find all of the information you’ll ever want about the Sollers report and the three sub-reports at the PATERNO website.