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Friday, July 13, 2012

In The Lions' Den

Recent protocol on this blog has called for me to write a "Dear Abby" post on Fridays.  It's a post for me to respond to a comment or question or suggestion from a reader.  The protocol is a self-imposed one that I have followed to give some structure to my week and some guideposts to my writing, not to mention some way for me to interact more directly with the wonderful people who read this blog.

The thing about protocols, though, is that they're necessarily artificial.  They're imposed to provide some sort of organizational efficiency.  They're grounded in the notion that perspective teaches such-and-such steps would be a reasonable way to approach X situation or respond to Y crisis or react to Z challenge.  And that's all well and good. 

The thing about protocols, though, is they're not law.  They're not the laws of the state, they're not the laws of nature, and they're not the laws of humanity.  Protocol can be broken.  Indeed, protocol should be broken when some other law requires that it should be.

In the very insignificant sphere of protocols that this blog occupies, protocol needs to be broken today.  Because in the much more significant sphere of protocol that Penn State University operated at the time Jerry Sandusky was sexually abusing young boys in PSU showers and at PSU football events, protocol wasn't broken.  Protocol was maintained.  Protocol was embraced.  Protocol was used to protect a football program, shield a legend, and coddle a predator.

Yesterday, Judge Louis Freeh publicly released the 276-page report on the Penn State-Jerry Sandusky scandal that Freeh's Special Investigative Counsel prepared.  The report has been summarized by countless media outlets, and I'm going to assume you've gotten the basic gist of it by now.  If you haven't, a quick summary:  Joe Paterno, Penn State's then-head football coach, and his administrative cohorts in the Athletic Department and University President's office, effectively concealed the allegations -- if not the very facts of -- Sandusky's suspected abuse of young boys.  If, for example, Paterno had gone beyond the strict bounds of what "protocol" told him to do (ie. report an incident to his superiors and then wash his hands of it) repeat instances of that abuse may have been prevented.

I have now read most of the report.  Its details are both amazing and revolting:  Sandusky being told on multiple occasions to stop bringing young boys to the Penn State locker room showers.  Sandusky agreeing to stop and then starting to do it all over again.  Paterno's suggestion that, instead of advising authorities of the allegations, that the Penn State Atheltic Director simply warn Sandusky he needed to get help, or else.  Second Mile (the charity Sandusky founded and ran for troubled young boys) being advised of Sandusky's reported rape of a young boy and concluding it was a "non-incident."

Given the density of the report and the complexities of the allegations, professional relationships, and extended cover-up, there are countless reactions to have.  Indeed, my own reactions are countless.  But I want to talk about some of my biggest ones here.

First, a more legal perspective. 

Yesterday, Joe's son, Jay, gave an interview to ESPN.  Throughout the scandal, the Paterno family has stood behind its now-deceased patriarch.  The family insists Joe Paterno had no idea Sandusky was a predator, and that while he ultimately wished he had done more, there were no facts at the time of the allegations that compelled him to do anything but report up the chain.  Despite the details of the Freeh report, Jay Paterno maintained that position in yesterday's interview.  He essentially dismissed the import of the Freeh report by calling it "basically an opinion."

Not so much, Jay.  Sorry.  The Freeh report itself exhaustively explains the independence it enjoyed throughout its investigation and the extent of its review.  Neither the Board nor the University administration was allowed to -- nor tried to -- direct or influence the Special Investigative Counsel.  The team reviewed millions of pages of documents, including contemporaneous emails and hand-written notes.  The team interviewed all relevant witnesses other than the criminally-implicated (who wouldn't speak on the advice of counsel) or the deceased (Joe Paterno).  The ultimate report relayed the facts it uncovered and, where a direct fact was not available, the report arrived at "reasonable conclusions."

That's the way an internal investigation works.  I've never worked on one of the PSU-Sandusky scandal's scope, but I've worked on others for large companies or institutions where serious legal, ethical, or financial misjudgments are alleged.  And I can attest to the fact that these types of investigations are rigorously independent, methodical, and exacting.  The team is hired by the most independent body of the entity under investigation -- usually its Board of Directors/Trustees -- and then given unfettered access to every rung of that entity.  Everyone has to talk  Everyone has to turn over documents.  Everyone has to let their hard drives get imaged.  Et cetera.

The lawyers cull those massive amounts of information and boil it down to a report.  The report is not meant to be a piece of persuasive argument, a summary of the law, or a guess as to what happened.  It is only meant to be a strict, contained presentation of the facts.  That's it.  To the extent a conclusion has to be reached, that conclusion must be one supported by the documentary evidence, the witness statements, and the most sound logic.

So, do I believe the Freeh report?  Absolutely.  Do I trust the "reasonable conclusions" it arrives at?  Certainly.  Do I understand why Jay Paterno wouldn't want me to; why he doesn't want to?  Definitely.  But Jay is biased.  The Special Investigative Committee was not.

That said, I will credit Jay's related point that the Freeh report is not the same as evidence put forth and adjudicated in a court of law.  The Freeh report contains evidence that perhaps wouldn't come in under Pennsylvania's rules of evidence, and none of the witness testimony was sworn to under oath.  Fine, Jay.  Fine.

So what?

As a lawyer, I am proud of what the law can do.  But I am also, perhaps more than most, disappointed at what and who the law can fail.  I recognize the unfortunate reality that there are legal truths and there are human truths, and sometimes those truths diverge.

A jury has already found Sandusky guilty on 45 of the 48 counts of child abuse that were brought against him.  Some of the facts used to convict him are the same facts at work in the Freeh report.  So to an extent, Jay's "opinion" theory is self-destructive.

Even putting that aside, the report-versus-trial comparison is a red herring.  The evidence cited in the Freeh report is still evidence, even if it would not be admissible in a court of law.  Trials do their best to allow for only a fair presentment of facts to determine whether a law has been broken.  Those laws are precise, as are the rules dictating what evidence can come in.  Somewhere along the way, facts and figures that would persuade someone in conversation may not be allowed into the dialogue of a trial.  Or those facts and figures are allowed in, but the jury that hears them is swayed by their personal affinity for a defendant or a particular lawyer, or it is constrained by a technicality that does not allow it to rule as it otherwise would.

Think of O.J. Simpson.  He was acquitted of murder, but I don't think anyone would encourage their blond sister to goad him into an argument over a steak dinner.  The law can dictate one judgment, but basic human instinct can dictate a very different one.

So too here.  With the Freeh report, we have arguably the most complete picture of the Penn State response to Jerry Sandusky's pattern of abuse.  And while that report cannot stand as a legal condemnation of the actors involved, it can and should serve as a human condemnation of them and their failure to act.  Maybe Joe Paterno and his cohorts followed the Penn State administrative manual to the letter.  Maybe the Pennsylvania Penal Code does not have a section for cold-heartedness, calculated myopia, or a stunning lack of empathy.  Again, so what?

I, for one, could care less if a Pennsylvania court convicts anyone other than Sandusky of anything.  I have already convicted the Penn State authorities -- including Joe Paterno -- of acting in a deplorable way.  Of protecting a football program by leaving young boys vulnerable to a lion's prey.  Of crimes against humanity -- whether or not those crimes are spelled out in a state's criminal statute or code.  And I will point to the Freeh report as my evidence with supreme confidence.

While my fellow ladies and gentlemen of the social jury appear to agree with me, we seem to have parted ways regarding what comes next.  Most of the reaction I hear now is an argument over what the Freeh report means to Joe Paterno's legacy.  There are Joe Paterno apologists and Joe Paterno antagonists.  All his wins, all the money the football team brought to the school, all the strong student-athlete graduation rates.  Stacked up against all the nights he went to bed knowing Sandusky might be prowling the shower stalls with little boys too scared to cry out.  The debate seems to go round-and-round, with no end in sight.

The debate is unfortunate.  It risks making the same mistake Penn State made during Sandusky's campaign of terror.  It makes football the story.

This is not just a football story.  This is not just a story about a long-standing coach being taken down by a long-standing abdication of duty.  This is about so much more than that.

This is about our country's infatuation with sports and the men who play them.  This is about our willingness to let fame, power, and prestige trump decency, responsibility, and perspective.  This is about playing a game defined by rules until other rules are bent so that other rules can be broken.

This is about kids who trusted the adults that claimed to be working for their betterment, that claimed to be their mentors, that claimed to be helping them build a brighter tomorrow.  This is about kids whose trust was broken at the exact same minute their spirits were.

The national discourse in the aftermath of the Penn State scandal should not focus on whether or not Joe Paterno's statue on the Penn State campus comes down.  It should focus on how to recognize the signs of child sex abuse.  How to identify a child predator.  And how to help a suspected victim of a suspected predator.  Not with the benefit of hindsight or the shame of an institutional downfall.  But with the reflexive instinct of a strong safety, the speed of a punt returner, the strength of an offensive lineman, the accuracy of a quarterback, and the tenacity of a coach.

Because the only role football should maintain in this aftermath is an illustrative one.


  1. This is one of the better pieces regarding yesterday's report that I have read. Well done, Abby.

    While I certainly understand that Jay Paterno wants to see the best in his father, the fact that he is now throwing his father's friends and co-workers under the proverbial bus is disapppointing. It's probably best for Jay to stop doing interviews for a while; I don't see how he's doing anything but making it worse.

  2. Excellent!!!!!!!

  3. Hello Abby!

    As a proud PSU alumni ('85 B.S. in Computer Science "before the Internet" believe it or not), admittedly a huge Nittany Lion Sports fan, and more importantly a very proud Dad of two currently enrolled daughters diligently earning their degrees from Penn State, I have watched, listened, and experienced every emotion over the past several months. I was shocked, disgusted, confused, and outraged at what was allowed to happen; however, I hope that this can be a huge lesson and example to colleges, and society as a whole, to hopefully make things better and a safer place for our kids.

    Thank you for taking the time to post and comment of this issue.

    Tom Burkholder