What The Paterno Family's Investigation Got Right And Wrong About The Freeh Report

The Paterno family's exhaustive evaluation of the Freeh report, prepared by the family's attorney and other experts who were paid to reach the conclusions the family wanted, is right about this much: The proof that Joe Paterno orchestrated or even participated in a malicious cover-up of Jerry Sandusky's serial sex crimes against children is based largely on circumstantial evidence.

But the family's report also overlooks actual evidence that remains damaging to the late coach's reputation: Paterno was indeed aware that an eyewitness saw Sandusky sexually abusing a child on university property many years ago. This is confirmed by Paterno's own words—words uttered under oath—and by the admission of a Penn State administrator who's currently awaiting trial for his part in the alleged cover-up. Yet the incident in question was not reported to police investigators or to child welfare officials for a proper inquiry, and more children were abused as a result.

The Freeh report, prepared by former FBI director Louis Freeh, had been commissioned by Penn State for the sole purpose of investigating Penn State. At a cost of $6.5 million, it found that Paterno, former president Graham Spanier, former senior vice president for business and finance Gary Schultz, and on-leave athletic director Tim Curley had, "in order to avoid the consequences of bad publicity ... repeatedly concealed critical facts" about Sandusky's alleged abuse. These findings were said to result from the Freeh Group's interviews with more than 400 people and a review of more than three million pages of documents.

The Paterno family's report was prepared by Wick Sollers, the family's attorney; Dick Thornburgh, the former governor of Pennsylvania and former U.S. attorney general; Jim Clemente, an FBI special agent specializing in sex abuse cases; and Fred Berlin, the founder of The Sexual Disorders Clinic at Johns Hopkins. Their work does indeed puncture holes in Freeh's contention that Paterno was directly involved in any kind of cover-up. For example:

1. In a 1998 incident, Sandusky was investigated by police and the state department of public welfare for grabbing a boy in a shower. No charges were filed. Freeh discovered an email from which he concluded that Paterno had been made aware of this investigation. Paterno denied this several times, and in any case the email, written by Curley, does not mention him by name. "Coach is anxious to know where this stands," the email read. It's certainly reasonable to think that it refers to Paterno, but the evidence isn't dispositive. (That said, it's unlikely that "Coach" refers to Sandusky, as the Paterno report suggests, since the police report shows that Sandusky visited the boy's home and was surprised when the boy's mother confronted him about the allegation. This happened a little more than an hour after Curley sent his email. What other coach could it possibly be?) Another email that mentions Paterno by name does not address the situation specifically, though Schultz's response to Curley does seem to allude to the ongoing investigation.

2. In 2001, after then-graduate assistant coach Mike McQueary told Paterno he had witnessed Sandusky doing something "sexual" with a boy in the Penn State football building shower, Paterno reported the incident to Curley and Schultz. This is the reason Paterno was never charged with a crime.

3. Emails and other evidence discovered by Freeh showed that PSU officials had a plan in place that included reporting Sandusky to child welfare authorities, but that Curley decided to hold off "[a]fter giving it more thought and talking it over with Joe yesterday." The Paterno family's evaluation rightly notes that it is impossible to gauge precisely what input Paterno had on that decision.

4. Because Penn State changed computer systems in 2004, emails from before that time cannot be retrieved. The Paterno family's report says any emails discovered by Freeh from before 2004 were those that had been kept by Schultz. As a result, any possible additional evidence—whether damaging or exculpatory—is lost to posterity. That said, if there were other emails that could help clear PSU officials, why wouldn't Schultz have kept those, too?

5. There is no direct evidence showing that Paterno instructed anyone to keep quiet about anything related to Sandusky's abuses. There is also nothing that shows Paterno destroyed or withheld evidence, or that he directed anyone to do so. The same cannot be said of other Penn State administrators, however. Schultz, for one, is accused of withholding an extensive file documenting the university's response to Sandusky's behavior from investigators, in violation of a subpoena.

6. After Sandusky's arrest in November 2011, Paterno was initially lauded by prosecutors for testifying honestly before an investigative grand jury. But that honesty was rooted in his acknowledgement that McQueary's report was of "a sexual nature."

Despite its ESPNified rollout and the sneering grandeur of its pronouncements, the Paterno family's report amounts to little more than a glorified quibble with the way the Freeh investigation was received by the public—i.e., as a prosecutorial brief hewing to courtroom rules of evidence. The Paterno response takes great pains to establish that the Freeh report relied on supposition and circumstantial evidence; it wants to cast doubt on the reasonable conclusions one could draw from the report by undermining the more conspiratorial conclusions. It's not quite right to call this a straw-man argument, since there certainly are people who think Paterno was the scheming mastermind of a sinister cover-up and who use the Freeh report to buttress that belief. But the Paternos' report is at its most unpersuasive when addressing the simple, consensus view of the late coach's role in the Sandusky affair: that in this instance he was an incompetent leader who discharged the minimum of his moral obligations and thus failed to live up to his own vast mythology.

In its efforts to muddy up the issue, the Paterno rebuttal does exactly what it accuses the Freeh report of doing. It cherry-picks statements from police interviews, published reports, and trial and pre-trial testimony, while painstakingly avoiding the elephant in the room: that Joe Paterno told a grand jury that he understood McQueary's story to involve "fondling," and that when asked to clarify, Paterno said it was of "a sexual nature." The Paterno family's best defense against this comes from Thornburgh, who argues that grand jury testimony is inadequate because witnesses are not cross-examined and counsel cannot lodge an objection. But in his grand-jury testimony, Paterno volunteered the words "fondling" and then "a sexual nature" without any prompting.

And in his infamous "rape and a man" interview with Sally Jenkins of the Washington Post, Paterno also used the word "fondling" to describe his understanding of what McQueary had told him. Here's more from the story Jenkins wrote about that interview:

He reiterated that McQueary was unclear with him about the nature of what he saw — and added that even if McQueary had been more graphic, he's not sure he would have comprehended it.

"You know, he didn't want to get specific," Paterno said. "And to be frank with you I don't know that it would have done any good, because I never heard of, of, rape and a man. So I just did what I thought was best. I talked to people that I thought would be, if there was a problem, that would be following up on it."

So: Paterno admitted that McQueary wasn't specific about what he saw Sandusky doing alone at night with a boy in a shower, but he said it wouldn't have mattered because he couldn't have comprehended such a thing anyway. Got that?

The grand jury presentment said McQueary had witnessed a rape, and that he reported to Paterno that he had seen a rape. But McQueary later clarified that he had withheld specific details from Paterno, while making it clear that what he saw was "sexual." Sandusky was eventually acquitted of raping the alleged shower victim (known as Victim 2), but he was convicted on four other counts related to that incident, including two counts that are explicitly sexual under Pennsylvania law.

What The Paterno Family's Investigation Got Right And Wrong About The Freeh Report

Here's something else the Paterno report ignores: Schultz has also acknowledged that McQueary's story was "sexual"; he says so in a pre-trial motion filed in September, a copy of which can be read below. On page 21, the filing says, "Schultz testified that McQueary's allegation was sexual in nature." And in a table on Page 22, which you can see to the left (click to enlarge), the Schultz Particulars say, "Admits it was sexual."

So what can we conclude? That Penn State officials understood Jerry Sandusky was sexually abusing a child on university property as far back as 2001, but that no report was made to the proper authorities. And while no clear motive for their inaction has been established, it's nearly impossible not to draw the conclusion that Joe Paterno didn't do enough. Don't believe me? Just ask the Paterno family. "It can be argued that Joe Paterno should have gone further. He should have pushed his superiors to see that they were doing their jobs." That's from the statement issued by the Paternos on the morning that Freeh released his report. They added: "We accept this criticism."