Penn State’s Evil Game of Telephone: Joe Paterno Is Crucial Witness against PSU
Let me avoid any confusion by stating that what follows is not meant to excuse Joe Paterno of any moral or legal duty. He could have stopped an alleged child predator and did not do so and he bears great moral responsibility for his inaction.
With that said, though, I wanted to lay out what the presentment says about the evil game of telephone that occurred after Mike McQueary reported seeing a boy being anally raped in Penn State’s showers. This morning bmaz tweeted this article, which in turn relies on this article; and while both provide useful legal analysis, I believe both muddle what the presentment shows. A close examination may explain why (on top of a possible inclination to protect Paterno) the grand jury didn’t indict Paterno but did indict Athletic Director Tim Curley and Senior Vice President for Finance and Business Gary Schultz for perjury for the actions they failed to take after learning of the alleged 2002 anal rape of young boy.
As the chronology below suggests, Paterno serves as the state’s second witness to Curley’s perjury, which in turn provides the foundation for the argument that Penn State did not fulfill its duty to report this incident to the state’s child welfare authorities (whereas the University had reported the earlier, potentially less egregious 1998 incident to both).
Rightly or wrongly, the presentment places the responsibility for informing child welfare with Schultz and Curley.
The University, by its senior staff, Gary Schultz, Vice President for Finance and Business and Tim Curley, Athletic Director, was notified by two different Penn State employees of the alleged sexual exploitation of that youth.
Schultz ultimately didn’t deny he was told Sandusky’s actions were sexual; as the presentment explains, the grand jury found his perjury to lie in his claim the 2002 incident was not serious or illegal (which is all the more troubling since Schultz admitted to knowing of the 1998 incident in which Sandusky allegedly “hugged” a naked, lathered boy from behind).
But Curley outright denied he had been told of sexual contact. Yet, according to the testimony in the presentment, Curley was told on two occasions that what Sandusky did to Victim 2 was sexual. According to Paterno’s sworn testimony, he told Curley on March 3, 2002 that “something of a sexual nature” had occurred. According to McQueary’s sworn testimony, he told Curley (and Schultz) around March 14, 2002 that anal rape had occurred.
But without Paterno’s testimony–without him as a second witness that Curley knew Sandusky had done something of a sexual nature to the victim–you’ve got McQueary’s word against Curley and Schultz. In effect, with Paterno’s testimony, you’ve got a clear chain of information showing Penn State failed to act. Without it, you don’t have proof of the University’s legal liability.
One more note (and again, this is not meant to excuse Paterno’s actions). Much has been made of the fact that Paterno’s advisers have initiated discussions–though has not yet retained–J. Sedgwick Sollers.
J. Sedgwick Sollers, who once represented President George H.W. Bush in the Iran-Contra affair, was contacted by Paterno’s advisers on Thursday. But Sollers has not yet met with Paterno, and a formal retainer agreement has not been signed.
A spokesman for Paterno said in an email that “no lawyer has been retained.”
For all that suggests about Paterno’s concern about criminal and civil liability going forward, it also seems to suggest that Paterno may not have retained a lawyer before he testified to the grand jury (which presumably happened between McQueary’s December 2010 appearance and Curley and Schultz’ separate January 12, 2011 appearances, though we don’t yet know how the grand jury learned of this incident). That means that Paterno may have provided testimony that implicated Penn State’s failure to fulfill notice laws without consulting a lawyer first.
Here’s the chronology:
Friday, March 1, 2002, 9:30 PM: McQueary sees the anal rape. He leaves, calls his father, and tells his father what he saw.
Saturday, March 2, 2002, morning: McQueary first calls, then goes to Paterno’s house and tells him what he saw. The presentment doesn’t describe what McQueary testified he said to Paterno, nor does it describe what Paterno testified McQueary had told him. It does describe that Paterno testified that McQueary was “very upset.”
Sunday, March 3, 2002: Curley comes to Paterno’s home. Paterno tells him (the implication is this comes from Paterno’s testimony):
the graduate student had seen Jerry Sandusky in the Lasch Building showers fondling or doing something of a sexual nature to a young boy.
Unknown date, March 2002: Paterno, Curley, and Schultz meet. Schultz testified that Paterno,
reported “disturbing” and “inappropriate” conduct in the shower by Sandusky upon a young boy.
The presentment does not say whether Paterno was asked–and if so, what he testified to–about this meeting.
Around March 14, 2002: Curley and Schultz call McQueary to a meeting (Paterno is not present). McQueary tells them (the implication is this comes from McQueary’s testimony):
he had witnessed what he believed to be Sandusky having anal sex with a boy in the Lasch Building showers. Curley and Schultz assured the graduate assistant they would look into it and determine what further action they would take.
Curley testified that McQueary told them,
that “inappropriate conduct” or activity that made him “uncomfortable” occurred in the Lasch Building shower.
Curley was asked, two times, whether McQueary had reported “sexual conduct” “of any kind.” Both times he responded “no.” He was asked if McQueary had reported “anal sex between Jerry Sandusky and this child,” to which Curley responded, “absolutely not.”
Schultz testified he was unsure what McQueary had told them.
he had the impression that Sandusky might have inappropriately grabbed the young boy’s genitals while wrestling and agreed that such was inappropriate sexual conduct between a man and a boy.
conceded that the report the graduate student made was of inappropriate sexual conduct by Sandusky.
testified that the allegations were “not that serious” and that “he and Curley had no indication that a crime had occurred.”
denied having such conduct reported to him by either Paterno or the graduate assistant.
Unknown date, March 2002: Curley informs the Executive Director of the Second Mile of the conduct reported to him and also meets with Sandusky to tell him he was prohibited from bringing youth onto PSU campus anymore.
[Update] Here’s what Second Mile’s head testified Curley told him.
he was informed in 2002 by Pennsylvania State University Athletic Director Tim Curley that an individual had reported to Mr. Curley that he was uncomfortable about seeing Jerry Sandusky in the locker room shower with a youth. Mr. Curley also shared that the information had been internally reviewed and that there was no finding of wrongdoing.
Around March 28, 2002: McQueary hears back from Curley, According to McQueary, Curley tells him
Sandusky’s keys to the locker room had been taken away and the incident had been reported to The Second Mile.
According to Curley, he told McQueary,
Sandusky had been directed not to use the Penn State athletic facilities with young people and “the information” had been given to the director of The Second Mile.
Unknown date: Curley tells PSU President Graham Spanier “of the information he had received from the graduate student and the steps he had taken as a result.”
That Sandusky would rape a child at the PSU Athlectic Dept showers shows he felt immune from accounabilty or much fear of repercussions of being caught. Will be interesting to see if Texas charges Sandusky. A lot more will likely come out. The Second Mile Foundation is getting a lot of deserved scrutiny.
@frandor55: True. Though I’m still puzzling out where the GJ learned of these incidents from.
@emptywheel: I assumed it was from the victim that went to Texas for the Alamo Bowl as related to the GJ and then the San Antonio DA got alerted via the GJ report.
@bmaz: That victim would have no way of knowing abt Victim 2 (not least, because no one knows who that kid is yet). Victim 2 and Victim 8 had to have come from someone internal to PSU.
Sandusky still recruiting for PSU football less than a year ago? Sounds like it.
San Antonio investigation begins.
@bmaz: Maybe I misunderstood, wasn’t the question how Texas knew?
Mr. Paterno has been a media savvy, multi-millionaire near-pro football director and coach for one of the country’s premier “college” football programs for decades. He deals with local and national media constantly, as well as high-powered lawyers, tax accountants, the panoply of specialist advisers that keep the mega-industry of college football and major universities going. That he gave testimony to a grand jury about alleged rape and alleged perjury related to his university’s failure to notify public authorities about the allegations beggars belief.
As you point out, the university appeared lackadaisical, to say the least, in responding to this allegation. Taking the suspected child rapist’s keys from him and telling him not to bring young people to the showers again is the sort of restrained response one would expect from a Catholic cardinal or bishop. One hopes the university did considerably more to investigate the allegations and inform public authorities. If not, heads ought indeed to roll. Next fall’s enrollment should drop, too, though I imagine the perps, if guilty of the suspected conduct, will find a safe place to land in Rome.
@earlofhuntingdon: Yeah, but that’s what appears to have happened. They may well have come to him with the shit he’s responsible for and he came clear. I think the GJ knows that Sandusky was forced out in 1999, and that doesn’t happen w/o Paterno’s involvement. And if they knew that, it would give Paterno a powerful incentive to come clean.
@earlofhuntingdon: I agree about your description of Paterno in your first paragraph. Which makes it all the more interesting that, as EW notes, there is no discernible evidence Paterno had counsel of record for his GJ interaction. Now, he may well have, but there is no evidence of that so far, and no counsel that sprung up in the last week to say to the media “Hey boys, y’all need to address me, not JoePa”. Weird.
@emptywheel: I’m not disputing your or bmaz’s comments, only that it seems woefully unlikely that Paterno did not, in fact, consult a top criminal lawyer on how best to proceed in what has become a moral, legal and PR nightmare. Since no representation has been declared, I assume that to be part of a strategy to handle the PR, not the legal ramifications of these disclosures, which portray no one at Penn State in a good light. I hope he’s giving as much energy to sorting out the moral consequences of these decisions as to the legal and PR consequences.
The once normal course would be to resign because it happened on his watch, regardless of technical legal liability. That went out post-Tylenol poisoning scare, with the advent of the professional corporate apology industry. It went out with the discovery that the US has openly adopted a policy of torture – which it engaged in for decades beforehand – only to have Congress and the executive respond with a disdainful, “So?”. It went out with the persistent disclosures of sexual predation among the Catholic Church’s priests, and their protection by those who came before them.
It would be refreshing if Mr. Paterno, at the end of his career and long since independently wealthy, were to lead a renaissance of taking leadership seriously. That includes being responsible and taking the fall when bad, even criminal, things happen on your watch. That would do more to restore his vaunted university and its athletic program’s credibility than a string of perjury convictions. Next in line for real, not corporate media-hyped, penance would be the university’s president and its board chair. Both are charged with more than making money by selling tickets and air time for fall entertainment.
Watching PSU interim President Rodney Erickson’s press conference right now. He was asked whether McQueary would be fired. He said there were “complexities” about that question he was not prepared to go into.
@earlofhuntingdon: Oh, I’m not sure I disagree with that. I think you may have missed a word in this sentence.
@emptywheel: Yep, thanks for the correction. I obviously thought I had including the bracketed phrase.
@emptywheel: “Complexities” in this context usually involve employment contracts. How much, for example, it costs to fire a highly compensated executive, and what level of proof is required to document the behavior the university claims justifies the firing.
I assume that here, it would also involve whether asserting such a claim against a senior executive would open the university up to further legal liability. That could be criminal, with which it would have to negotiate with the state, or civil, with which it would have to negotiate with affected children, parents and adults harmed by the behavior the university allegedly failed to prevent, that it failed to detect or investigate, that it failed to disclose as a result of lies or obstruction by senior officials empowered to act on its behalf.
I would assume the most knowledgeable people the university might consult with in that regard are in the Vatican. I recommend the university consider its analysis, but draw conclusions opposite from those drawn in Rome.
I hadn’t read that Penn State’s board had already fired Mr. Paterno. Assuming the facts are as stated, I applaud the decision. I would applaud louder had Mr. Paterno resigned voluntarily. His retirement will be whatever he wishes it to be. The same can’t be said about the lives of the children who were allegedly raped or sexually assaulted by his former defensive coordinator, alleged acts hidden for too long by those responsible for preventing, disclosing and investigating them.
School sports is about leadership, not money. I understand that at school’s like Penn State, Ann Arbor and Notre Dame, football money is nearly unlimited. That makes being a competent leader harder, not an elective that can be passed by. The high six- and seven-figure pay is there; these universities can recruit the best talent in the business on and off the field. Avoiding moral and legal corruption and its appearance is part of the gig.
As noted on FDL and by bmaz, Sandusky was asked to leave in 1999 after some incident in 1998, and even as a star DC from a top-flight program in the prime of the coaching life at 55, got no nibbles. Dayen’s interpretation is that the conduct was an open secret in the CFB community, and I would agree. But, JoePa could have stepped up , should have stepped up [for exactly the same reasons we’re pissed at Obama for looking backwards – justice needed to be done here and wasn’t], and he may still go on trial. Ten more years of victims mark JoePa’s failure to lead. There is no way that JoePa would agree to the HC-in-waiting unless there was a reason, and this qualifies.
The fact PSU kept Sandusky around well after his “termination” [in the de facto sense] is damning. The fact that Sandusky was able to continue the [alleged, Sandusky denies it] depredations unfettered in any concrete or effective way while still representing the school means the housecleaning is nowhere near done in Happy Valley. It may spread farther depending on the trials to come and what comes out.
Paterno officially retains Wick Sollers.
When I was in a convenience store today (here in Iowa City), I overheard a few people talking about all this. I was quite surprised to hear that the “someone connected to PSU killed Gricar” story coming from them. I listened for as long as was excusable; none of them questioned it. They almost took it as a given.
We’re gunna need a bigger boat of popcorn for this one.
@earlofhuntingdon: Sure, but they “fired” Spanier, and he’s a tenured professor. They’ve already said they’re going to have to pay fines there.
i don’t care one way or another about paterno. personally i think geriatric coaches like paterno and bowden should be put in wheelchairs and pushed of the end of the head coaching pier long before they agree to retire.
it does seem to me though that if paterno notified his atletic director and fired sandusky, he had done what he was obliged to do. it seems like it is more the ad’s and vp’s jobs to handle this than a head coach’s. neing fampus does not make paterno more or less respobsible than a lesser known head coach. i’d be less tolerant if it were known that paterno acted to protect himself from liability in ’98-’99. in thst regard i’d be be intetested to know if he consulted a lawyer then, and what kind.
another point, most universities have police departments. did paterno or the ad notify the penn state (univ) police? if so, what actions did they take?
finally, though never an academic, i’ve had a lifetime of viewing the conduct of univ deans, registrar, provost, vice-p’s, and prez’s. these officials bend over backwards to bury illegal or embarrassing conduct of faculty, staff, and their admin peers. this obviously happened at penn state or we would not be just learning all this in 2011.
it may well be that sandusky was retained after being released from his coaching duties because firing him would require and explanation for the record and might leave the univ liable for damages.
when you have a mess like this at a univ, always investigate the advice and conduct of the university attorneys. were coaches, ad, and administrators told to keep quier? did the univ make quiet payoffs to some victims? were there sealed settlements? did sandusky grey-mail penn state – “if i go down, so will your football program?”
the only thing i am reasonably confident of at this point is that the univ made the right decision in firing coach and prez (why they made that decision may not pretty to contemplate, however).
I hate being the non lawyer always asking legal questions but where, exactly, is Paterno possibly criminally liable? He didn’t witness the incident. He reported the incident to his superiors. He then apparently went before a grand jury (with ot without counsel) and told them what basically appears to be the same story he told the AD in 2002. I understand the moral implications of what he did (which I assume brings about the civil implications) and for that he was fired but is there really any criminal liability on his part?
@emptywheel: If the fines don’t get ya, then then punitive and compensatory damages will.
but not the only non-lawyer : >)
@JTMinIA: Yeah, I still am aware of nothing that would have led someone to off Gricar in 2005 over this which, I think, is your thought too. I am not saying that there are not people out there crazed enough about PSU football to do the deed, but there is no evidence Roy was going active, much less that anybody had knowledge of it in order to take action. Just not buying into that.
@GulfCoastPirate: I have consistently said I do not, from anything I have seen so far, think Paterno has any real criminal exposure. And I think the DA some time ago made the determination that even if a marginal case could be made, it was too weak and they were far better off with Paterno as a witness against others. It may change, but I stick by that for now.
@orionATL: @GulfCoastPirate: Hey! I’m not a lawyer. I just read lawyers like a CompLit PhD.
That means that Paterno may have provided testimony that implicated Penn State’s failure to fulfill notice laws without consulting a lawyer first.
You have to think he talked to his son Scott, a lawyer. Then I guess you have to wonder why Scott didn’t advise Joe to retain counsel.
like any ordinary six sigma complit ph.d. : >)
@emptywheel: I’ve had a crazy day, and can’t remember whether it was on ESPN as I was doing stuff around the house or NPR while driving in the car, but one or the other had an interview with a PSU person (board member? interim president?) who indicated that while Spanier had been removed as president, he was still a tenured faculty member. Getting him removed from the faculty requires another process, not simple a vote of the board of trustees.
Also, the phrase used repeatedly by the board for the removal of Spanier and Paterno is critical: “best interests of the university.” This is a term of art, meaning “we’re not taking a stand on guilt or innocence, but there’s no way this person can function effectively — and we as the Board have determined that this is a position that must have someone in it who can function in the midst of this crisis.”
@bmaz: the Commonwealth of Pennsylvania does not allow for grand jury witnesses to be represented by counsel in their appearance.
Let’s keep analyses of this situation simple.
McQueary, a 28 year old man, witnessed (accordeing to him) the anal rape of a 10-11 year old boy at the “hands” of Sandusky. McQueary should have called the police immediately (or physically intervened which, on paper, would not be recommended, but certianly would never have brought consequences to McQueary). Given that McQueary did not call the police, but instead told his father, McQueary’s father should have insisted that his son call the police immeditatley. And finally, since his father did not insist on this, JoePa should have insisted that McQueary call the police.
McQueary, his father, and JoePa all screwed this one up and maybe all for the same crazy reason – to protect this over-hyped institution of Penn State Football.
Does the slime never end? John Raykovitz, Exec Director of Second Mile is a child psychologist, PhD, licensed in PA. He should never earn another cent in his life, after raking in a sizable salary while enabling Sandusky to ruin kids lives. Raykovitz’s wife is Vice President of Second Mile. I’m just sick over this. RICO.
ALL of these people, from the top to the bottom, should be made to witness and live with the detritus and horror of childhood sexual abuse. My husband and I do. Our newly adopted son, who is 6yo, is a victim. He is diagnosed with PTSD, and it is REAL PTSD — flashbacks in entirety. He becomes completely dissociated, distintegrates psychologically, and truly believes he is coming apart. Most cases of Dissociative Identity Disorder (aka Multiple Personality) stem from childhood sexual abuse. And it is a long, long road to healing. He is without question the bravest person I have ever known. It is an honor, and unbelievable experience to parent him as he faces one day at a time in recovery.
Penn State faces Moody’s rating downgrade
@Sparkles the Iguana: That son Scott is a lawyer?? Whoo boy, don’t think I would rely on that, might seek, you know, other counsel.
@Julia Erwin-Dominguez: Uh, you ALWAYS have the right to be represented by counsel (except apparently in some terrorist situations); it is simply that the counsel may not be with you in the grand jury room. But Paterno, and anybody else, has the right to consult with and be advised by counsel. In fact what I do with clients is tell them to request leave to go outside the GJ door and consult with me and then go back in and answer the question.
@posaune: Don’t you think there should first be some evidence they knew? Just a little?
@emptywheel: Hey! I’m not a lawyer. I just read lawyers like a CompLit PhD.
LOL – I don’t even know what that is but whatever it is you appear to be good at it.
@posaune: You’re pretty brave yourself to take that on.
@GulfCoastPirate: Oh, don’t buy that bunk; she may not be a member of the bar, but the woman can lawyer just fine.
@frandor55: Do you think there will be any federal involvement in the case because Sandusky crossed STATE lines to bring the victim to the Alamo Bowl. Is it illegal to bring children across state lines w/ the intent to commit rape or statutory rape?
My take is that Paterno and others at PSU feared how a scandal would impact both the program and the university. BUT in covering up the whole sordid mess and refusing to deal w/ it head on, they all guaranteed said scandal, but this time it would be far worse than had they done something in 1998.
bmaz, do you mean that PSU knew? or the folks around my son?
I think it is absolutely UN-EFFING BELIEVABLE that John Raykovitz, the ED of Second Mile, and a PdD child psychologist DID NOT KNOW! The symptoms in that many children would have to have been obvious. That a licensed professional did not respond is outrageous. Read Bruce Perry, MD/PhD, head of Child Trauma Academy http://www.childtrauma.org/index.php/articles/articles-for-professionals .
(Hmmm….. if Texas AG has a case, Perry may be an expert witness, as he is in Houston).
As far as my son, yes, they knew and the placing agency (a county department) didn’t tell us. Cover-up.
I read yesterday (State College Patriot News, I think) that the bio mom of one of Sandusky’s foster kids suspected abuse in the foster home. She appealed in writing to CPS and the judge asking them to move her son. Sandusky got a court order limiting the bio mom’s contact to 4 hours per month, supervised by Sandusky! Then, the kid tried to commit suicide with one of the other foster kids. ALL COVERED UP – the number of people in authority who failed these kids will number in the hundreds. There will be reverberations in the PA foster/adopt circuit — i.e., how did Sandusky get Home Study update for the placement of more kids in his home after that? The GJ must have been pretty far-reaching to find the bio mom, who testified. Good for them.
@posaune: Oh, the people at Second Mile and PSU, I would not presume to say anything about your situation. But there are a lot of allegations being made, not necessarily by you, about the guy at Second Mile and the whole kit and kaboodle at PSU, and it does strike me that there ought to be evidence against people, at least some, before bad things are wished on them.
@bmaz: @bmaz: I agree, bmaz that the evidence must be obtained. What is mind-boggling is how many threads need to be followed to get the evidence. Not being of steel-trap mind (like the lioness and you-&*g), it all seems so murky — all these layers of state entities, semi-state entities, non-profits, volunteers, charities, county agencies, authorities, and not-authorities, “family,” etc. Death by a thousand discoveries.
@posaune: It really is difficult to pull it all together when it spans a number of years and crosses through multiple jurisdictions and institutions like this. And I will be dead honest, the victims do not always want to cooperate whether from shame, external pressures, religious beliefs or just not wanting to invest the time in it. I actually think the Pennsylvania AG office has done, overall (there are a few little quibbles possible), a pretty good job on all this.
@bmaz: I agree. The twists and turns of a child abuse investigation are stunning, and the pressures all around are bewildering. Those who have the training to do these kinds of investigations are amazing people.
On a much lower level, the CASA program is one of the best things the legal system ever embraced. CASA stands for “Court Appointed Special Advocate”, and these people are appointed by judges to represent the legal interests of the child in cases like these. Not the family, not the alleged perpetrator, not the many institutions (church, school, sports teams, etc.), but the child him- or herself.
From the “about us” part of their website:
I am in awe of the work that CASA volunteers — and most of them are volunteers — do. If anyone reading here is interested in working to change the lives of abused children, CASA would be an incredible place to start.
@Peterr: Roger that. Honestly, even defense attys appreciate dealing with an independent representative like that usually (not always….).
@bmaz: The independence from both defense attorneys and prosecutors gives them an unusual place in the legal system. I’ve heard both sides offer praise to CASA volunteers, even as they go at each other’s throats over the legal issues of a case.
The fact that most of them are volunteers, and thus not making any money off of anyone gives them a certain amount of respect. The only — and I mean ONLY — reason they are in court is to speak on behalf of the kid.
(And their independence also extends to the state. CASA folks don’t work for the Department of Child and Family Services (or whatever it may be called in your state). They have one client, and one client only in their pro bono work: the kid.)
@Peterr: some are CASA here, but even if not, there is a court victim/witness arm that provides that service (they are professional and paid by the state).
Again, here is a case, again, where Second Mile was informed that someone who was adopting children was abusing children. WTFH was going on at Second Mile?!?!
Oh yeah. I forgot. They had the same counsel as Penn State! Um, is the AG for Pennsylvania looking into THAT little suspicious nugget of HELL? Yeah, cuz that’s where this should all lead…right to that lawyer’s office. On to his/their doorstep where it most rightfully should be examined, flaming in a paper bag.
@Timbo: Yes, I imagine that is a decent part of the “ongoing investigation” the state claims is still ongoing.
Much too gullible. Paterno retained counsel a long long time ago and positioned himself to avoid implication and possibly avoid moral culpability as much as possible. Too hard not to remember that Paterno is the power behind the throne in all these transactions at the time.