In today's world of 24-hour cable news and non-stop social media, we as a society are increasingly demanding instant answers and snap judgments. We see stories explode on the Internet almost every day and thousands of voices rush out to pass judgments. But, in the haste to find instant answers, the true story is often missed and justice ill-served.
The condemnation of the late Penn State football coach Joe Paterno in the wake of the Jerry Sandusky scandal is an example of what can happen when pressure to produce a result outruns the record. In the end, the evidence against Paterno falls far short of sustaining allegations that he attempted in any way to conceal or cover-up Sandusky's sexual abuse of children. In fact, the contrary is true.
In the case of Paterno, this was a rush to injustice.
There is no question that Sandusky's conduct was reprehensible. He has been dealt with appropriately by our justice system, having been sentenced to serve up to 60 years in prison for his crimes. The lives of Sandusky's victims will never be the same, and I feel deeply for them and their families.
When the allegations against Sandusky became widely known in 2011, the Penn State Board of Trustees hastily dismissed Joe Paterno after 61 years of service to the Penn State. Only after dismissing him did the board retain former FBI director Louis Freeh to conduct an investigation of the matters involving Sandusky at the university. Freeh prepared a report that concluded that Paterno and three other high-level officials at Penn State conspired together to conceal information about Sandusky for a decade. The board released the Freeh report without review, and weeks later the NCAA used the report to apply unprecedented sanctions against Penn State without conducting its own investigation.
The problem with all of this is that, upon close examination, the Freeh report does not stand up to the kind of scrutiny it deserves.
Although I was retained by the Paterno family to review the report, I was asked to make an independent assessment of the Freeh report and not asked to reach any particular result. I would not have accepted this assignment had it been otherwise.
After reviewing the Freeh report and examining the limited evidence cited by Freeh as well as additional materials from court proceedings and other sources, I can say without qualification that the Freeh report is seriously flawed, both with respect to the process of its investigation and its findings related to Paterno.
The Freeh report claims that it conducted a "complete" investigation. This is not accurate. Despite the fact that they supposedly conducted 430 interviews, Freeh investigators did not speak to virtually any of the persons who had the most important and relevant information. Contrary to a widespread belief, Freeh did not have subpoena power and could not use any other tools of a law enforcement investigation to compel people to talk to his investigators.
The usefulness of the Freeh report is also restricted because many of the interviewees cited are not identified, limiting the reader's ability to weigh the witnesses' credibility and reliability. The failure to conduct key interviews is all the more consequential because of the lack of relevant documents. Although the Freeh report claimed to review more than 3.5 million documents, the report references and relies upon only about 30 documents, including 17 e-mails. Notably, none of the documents most critical to Freeh's damning allegations against Paterno were sent or received by him.
Indeed, none of the evidence cited by Freeh supports a claim that Paterno acted to conceal information about Sandusky. In fact, the evidence is contrary to a cover-up. Most significantly, the findings in the Freeh report about Paterno, particularly concerning his alleged concealment of 1998 and 2001 incidents involving Sandusky, are not supported by credible evidence. Instead, the Freeh report attempts to construct an unsubstantiated "collective guilt" among Paterno and three senior university officials.
Another key finding was that the motivation for Paterno and the others to conspire to conceal information about Sandusky was to avoid bad publicity. However, the Freeh report contains no support for this finding, and it seems to be pure speculation. It was widely reported that Paterno did not like Sandusky much and informed him in 1999 that he would not be the next head football coach at Penn State, resulting in Sandusky leaving before the 2001 incident involving a young boy in a university shower room. Thus, if one were to speculate, it actually is more likely that Paterno, who had a long-time commitment to improving the lives of his players and other young adults, would have reported the 2001 incident to authorities if he had known of a former coach's criminal conduct.
When the evidence relied upon in the Freeh report is considered in an objective manner, it is clear that its findings are not accurate, supportable or fair. The fact that there also is no evidence that Paterno or anyone else ever instructed anyone not to discuss the Sandusky incident undermines the finding that Paterno conspired with others to cover it up. This lack of evidence supporting the report's most scathing findings and the serious flaws with respect to the process of Freeh's investigation cause me to conclude that the report's findings concerning Paterno are unjust and wrong.
Why is all this important to anyone beyond the legacy of one man? The Freeh report -- by rushing to supply harsh judgments without facts -- undermines our faith in justice and due process. If it is allowed to stand unchallenged, it will establish a terrible precedent to justify accepting unsupported allegations as true. That is incompatible with the American system of justice that we all cherish.
Dick Thornburgh served as Pennsylvania governor and then U.S. attorney general. Currently, he is counsel to the law firm of K&L Gates LLP.
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