Seven months after a report commissioned by Penn State and written by former FBI director Louis Freeh portrayed former Nittany Lions football coach Joe Paterno as part of the cover-up of sex crimes perpetrated by longtime defensive coordinator Jerry Sandusky, Paterno's family has struck back with a report of its own. The 237-page Paterno report mostly reiterates previous criticism of Freeh's account: that it was biased and that it lacked both crucial evidence and insight from important witnesses, since Freeh did not have subpoena power.
Commissioning a report was probably the Paterno family's only way to rebut Freeh. When the coach died at age 85 on Jan. 22, 2012, so did his legal capacity to file a defamation suit, and courts typically bar family members from filing such suits on behalf of deceased relatives. Paterno's family is instead taking its case to the public. In addition to the release of the report on Sunday, Paterno's widow, Sue, sat down with Katie Couric for an interview that aired on Monday afternoon. (I also appeared as a legal commentator on the show, which was taped on Feb. 6.)
The Paterno report offers scant new information about—or an alternative narrative for—the Sandusky scandal. It has been skillfully crafted to undermine the Freeh report. Like that report and other so-called "independent" reports on other issues (including MLB's Mitchell report), the document is a carefully crafted blend of legal reasoning and public-relations spin. Except in the minds of Paterno's most ardent supporters, it will not fully restore the coach's reputation.
But the family's report does make one distinct contribution that may give pause to those who rushed to judge Paterno. It includes commentary from Jim Clemente, a former FBI profiler of child sex offenders, who contends that Paterno did not know about Sandusky's crimes. In Clemente's view, Freeh "investigated the case in the wrong way" by failing to distinguish between "acquaintance child molestation" and "child abuse" and thus failing to accurately classify Sandusky. Clemente describes Sandusky as a "nice-guy" child sex offender who was in the top 1% of "groomers," or those who gain the trust and silence of victims and the unwitting cooperation of surrounding people. According to Clemente, by founding The Second Mile charity and repeatedly gaining approval for foster parenting, Sandusky engineered a high-profile image for altruism. That made it "reasonable" for Paterno not to view Sandusky as a child sex offender. In fact, Clemente insists that in merely reporting allegations to athletic director Tim Curley, "Paterno did what most people who cared about children [and who had been fooled by a 'nice guy'] would have done in the same situation." Paterno, in the words of Clemente, "simply fell victim to effective 'grooming.'"
February 18, 2013
The main beneficiaries of the Paterno report are arguably the three Penn State officials—Curley, senior vice president for finance and business Gary Schultz (who oversaw the campus police) and former president Graham Spanier—who have been criminally charged with covering up the allegations and lying under oath (all three maintain their innocence). The new report corroborates several of their possible legal defenses: that Sandusky fooled everyone; and that some reports of Sandusky's behavior were ambiguous, such as the description of Sandusky engaging in undefined "horseplay." The three men might avoid trials by reaching plea deals; if not, the report will aid their defense.
Pennsylvania governor Tom Corbett also stands to gain from the new report. He is suing the NCAA—which relied heavily on the Freeh report in its punishment of Penn State—under federal antitrust laws, claiming that the organization had no business sanctioning the school for failing to stop a retired coach from abusing children. The financial impact of the sanctions imposed on the Nittany Lions football program, according to Corbett, extend to the state's economy, thus empowering him to sue.
Penn State may also see its case strengthened somewhat. The Department of Education is investigating whether the school, as the Freeh report contends, did not comply with the Clery Act, which mandates comprehensive reporting of on-campus crimes, with potential penalties ranging from hefty fines to what has never been imposed: suspension of federal financial aid for students. The Paterno report provides the government some grounds to refrain from imposing the harshest of penalties.
While these various factions squabble in the aftermath of the Sandusky scandal, it is the victims who are seeking real justice. The school is close to reaching settlements with 28 claimants. Damages could reach upward of $100 million. The costs in Happy Valley will be much more than Joe Paterno's legacy.