Joe Paterno family releases report

Updated: February 13, 2013, 11:54 AM ET
ESPN.com

A report commissioned by Joe Paterno's family claims the July 2012 Freeh report that was accepted by Penn State trustees before unprecedented sanctions were levied by the NCAA against the school's football program is a "failure" and was loaded with errors, personal opinions, disputed allegations and bias.

The Paterno family report, which targets nearly every conclusion and assertion the Freeh report made about Paterno in the wake of the Jerry Sandusky child sex abuse scandal, states that while former FBI director Louis J. Freeh has had an honorable past and a good reputation, his investigation -- especially as it relates to Paterno -- relied on "rank speculation," "innuendo" and "subjective opinions" when it concluded that Paterno concealed facts about Sandusky in part to avoid bad publicity.

Freeh was hired on Nov. 21, 2011, and was paid $6.5 million by Penn State University trustees -- who fired Paterno after 46 years as head coach -- to conduct the inquiry. Freeh said his team interviewed more than 430 people and reviewed more than 3 million documents to prepare the 267-page report.

Released on July 12, the report concluded that Paterno -- along with former university president Graham Spanier, athletic director Tim Curley and former vice president Gary Schultz -- conducted a cover-up of allegations that Sandusky, a former defensive coordinator, sexually abused young boys.

The Paterno family immediately roundly and loudly rejected the report, and, four days after its release, instructed its lawyer to form a "group of experts" to conduct a comprehensive review of the facts and conclusions. The Paterno family asked its attorney's law firm, King and Spalding of Washington, D.C., to start "a comprehensive review of the report and Joe Paterno's conduct. They authorized us to engage the preeminent experts in their field and to obtain their independent analyses."

The law firm hired former U.S. attorney general Richard Thornburgh, former FBI supervisory special agent and former state prosecutor James Clemente, and Dr. Fred Berlin, a treating physician, psychiatrist, psychologist and expert in sexual disorders and pedophilia at The Johns Hopkins Hospital and School of Medicine. The report, titled "The Rush To Injustice Regarding Joe Paterno," was provided to ESPN ahead of its release on the condition ESPN not divulge its contents publicly until Sunday morning.

The family's report attacks Freeh's conclusions, assertions, methodology, investigative abilities and choices, disclosures and independence.

"The lack of factual support for the [Freeh report's] inaccurate and unfounded findings related to Mr. Paterno and its numerous process-oriented deficiencies call into question the credibility of the entire report," Thornburgh writes. "In my opinion, the Freeh report is seriously flawed, both with respect to the process of [its] investigation and its findings related to Mr. Paterno ... There was just a rush to injustice."

For seven months, Freeh has steadfastly refused to comment on reactions to his report. In a one-page statement released Sunday, Freeh forcefully defends his work, saying that "e-mails and contemporary documents from 2001 show that ... four of the most powerful officials at Penn State agreed not to report Sandusky's activity to public officials."

Freeh also pointed out that Paterno declined an opportunity to speak with his investigators.

"Although Mr. Paterno was willing to speak with a news reporter and his biographer at that time, he elected not to speak with us. We also asked Mr. Paterno's attorney to provide us with any evidence that he and his client felt should be considered. The documents provided were included in our report."

In the emphatic defense of his work, Freeh does not address many of the specific criticisms made by the Paterno family report.

But he calls it self-serving, saying, "I stand by our conclusion that four of the most powerful people at Penn State failed to protect against a child sexual predator harming children for over a decade."

The Paterno family report's authors made 10 conclusions after their review:

•  No evidence exists that Paterno concealed critical information about Sandusky.

•  Paterno, "based on a review of all available evidence, including discussions with attorneys representing Curley, Schultz and Spanier made no attempt to hide any information, hinder or impede any investigation or limit the number of people who were informed of" one the key incidents in the Sandusky scandal. In that 2001 incident, then-assistant coach Mike McQueary witnessed the assault of a boy in the shower by Sandusky and told Paterno about it the next day.

•  No evidence exists that a desire to avoid bad publicity ever motivated Paterno.

•  That the Freeh report "ignored decades of expert research and analysis of the appropriate way to understand and investigate a child sexual victimization case. Consequently, the Freeh report missed a tremendous opportunity to educate the public regarding the behavior of 'nice-guy' acquaintance child molesters."

•  Freeh's investigators "produced a report that fit their expectations despite contrary evidence or a more reasonable interpretation."

•  The report was "oversold to the public, and Penn State officials, the NCAA and other bodies detrimentally relied upon it. The limitations of the investigation, which were numerous and defining, were not adequately explained or understood."

•  Sandusky was an exceptionally effective manipulator and deceiver ... One of the most respected child sexual victimization experts in the world has concluded that Joe Paterno, like many others, did not recognize Jerry Sandusky as a child molester after the 2001 incident."

•  Freeh investigators' access to vital documents and critical witnesses was severely limited. "These limitations, which were understated or ignored in the report, call into question the legitimacy of the entire report."

•  The Freeh report is "uniformly biased" against Paterno, and its authors "ascribe motives to people they never met or interviewed and interpret ambiguous documents with a clarity and decisiveness that is impossible to justify."

•  One major flaw in the Freeh report is that it does not follow a typical standard of courtroom examinations and independent investigations -- the consideration of a person's lifetime record of "moral conduct and altruism." It treats Paterno's long life "as if it were irrelevant to the case."

According to Paterno family attorney Wick Sollers, most concerning to the family is what happened after the Freeh report was released. Sollers said Freeh did not allow the Paterno family or its representatives to reply "before he announced them as gospel at a national press conference."

[+] EnlargePenn State students
AP Photo/Gene J. PuskarPenn State students gathered in July to watch ex-FBI director Louis Freeh present his report on the school's handling of the Jerry Sandusky scandal.

Sollers, in a news release Sunday, quickly responded to Freeh's statement.

"Mr. Freeh's attack on the report this morning should trouble everyone who wants the truth on the Sandusky scandal," Sollers said. "He criticizes a report he obviously hasn't had time to read and consider. And he refuses to address the critical factual and procedural failures in his own report, particularly his flawed conclusions which have only added to this tragedy.

"Being angry does not constitute a defense of poor work," the Sunday statement continues. "A failure to consider the facts carefully is exactly the problem our expert analysis highlights. Everyone, including Mr. Freeh, should take the time to study this report."

Penn State, through a public relations firm, also relayed its reaction to the Paterno family report in a statement Sunday, recounting in brief detail the context in which the Freeh probe was launched.

"As a result of the investigation, 119 recommendations were made to Penn State in areas such as safety and governance," the statement says. "To date, the University has implemented a majority of those recommendations."

The school's statement, released through PR agent David La Torre, goes on to say the school intends to put in place nearly all the recommendaitions by the end of 2013.

"It is understandable and appreciated that people will draw their own conclusions and opinions from the facts uncovered in the Freeh report," the Penn State statement reads.

For its part, the NCAA said it would "stand by our previous statements on this matter and do not have anything further to share at this time."

Ten days after the Freeh report was released, Penn State removed Paterno's statue outside Beaver Stadium. The next day, the NCAA hit Penn State and Paterno with an unprecedented string of penalties relating to the scandal: a university fine of $60 million, the vacation of 112 victories from 1998-2011, a four-year postseason ban, scholarship losses and other sanctions. The NCAA acknowledged using the Freeh report to mete out penalties instead of doing its own investigation.

With the wins from 1998-2011 vacated, Paterno moved from 409 to 298, dropping him from first to 12th on the winningest NCAA football coach list.

The Paterno family report focuses mostly on Paterno but also states that some Freeh conclusions about Spanier, Schultz, and Curley were misguided.

Sollers declined to say how much the family paid for the report but noted "It does not approach what the Board of Trustees paid to the Freeh group."

As to whether the Paternos are considering filing a lawsuit against Penn State, the Freeh group and/or the NCAA, he said it was "too early to tell" and that, "We're evaluating all the legal options at this stage of the game."

Last month, Pennsylvania Gov. Tom Corbett filed a federal lawsuit against the NCAA, saying it violated antitrust laws when it handed down sanctions against Penn State. The NCAA has filed a motion to dismiss the lawsuit.

"This report is a shot right across the bow to the NCAA," Sollers said. "They know. Look at Penn State and the NCAA, they 100 percent bought into this. We're saying it is deeply flawed. What we have to say now is all we want is people to look at it and review it. We hope they'll look at it and figure some ways to address it."

In undertaking the review of the Freeh report, Sollers writes that his firm did not attempt a "reinvestigation" of the Freeh investigation -- it would have been unproductive -- so his group focused on "reviewing relevant public records, which of course included the Freeh report itself and its exhibits, witness interviews, grand jury and trial testimony, media reports, and other documents we could access to evaluate the Freeh report's conclusions." In addition, the family report is based on interviews with Paterno and meetings with lawyers for Curley, Schultz and Spanier.

Sollers said only Thornburgh had any prior connection to Paterno or his family, noting that Thornburgh and Paterno "were not close."

"The Paternos gave us a direct mandate to set the record straight and find the truth as to Joe Paterno's conduct, whether positive or negative," Sollers writes.

Among the many Freeh conclusions the Paterno family report challenges is an email exchange that the Freeh report states is evidence Paterno and others knew about and closely followed a 1998 police investigation of Sandusky for sexual assault, which ended without charges being filed. In one email from Curley, with a Subject Line of "Jerry," Schultz is asked: "Anything new in this department? Coach is anxious to know where it stands."

Freeh concluded "Coach" referenced Paterno and that all three were in the early stages of a cover-up.

The family report deconstructs that conclusion -- at least as it relates to Paterno -- as a "fallacy" and "unsupported opinion." Sollers writes that Freeh investigators did not interview Curley or Schultz about what the emails meant; that statements Spanier made to Freeh investigators corroborate that neither he nor Paterno knew of the 1998 investigation; that Freeh failed to confirm directly "Coach" was indeed Paterno when it could have been Sandusky or someone else; that Freeh offered no evidence about what Curley meant when he wrote the email and what, if anything, he "conveyed to 'Coach,'" and "what 'Coach' said in response."

Another major problem, Thornburgh writes, is that the Freeh report failed to note in any way that a Penn State computer system overhaul wiped out all emails prior to 2004. The Curley emails only exist, Thornburgh writes, because Schultz had personally kept them.

"The former Director of the FBI drew definitive and irresponsible conclusions about what Joe Paterno knew without talking to the two participants in the very conversation(s) at issue, and instead substituted his own speculation regarding what was said, what context did or did not exist, how it was interpreted by the participants, and what it meant," Sollers writes.

The Paterno family report states that Paterno made proper decisions all along: he never concealed or knew of allegations in the 1998 investigation; he reported to superiors what McQueary had told him in 2001; he told the truth to the best of recollection when asked questions in 2011 about the events years prior; he took responsibility for his actions publicly and privately; and noted publicly that he'd wished he'd done more once he learned about the extent of Sandusky's actions.

The Freeh report missed all of that, Sollers writes:

"In short, Mr. Freeh unilaterally anointed himself the judge, jury, and executioner by deciding to redefine Jerry Sandusky's personal crimes as a Penn State and Joe Paterno football scandal. That bell can never be unrung, but the many associated errors can be corrected ...

"We may never know if Mr. Freeh was motivated to pursue maximum publicity, to align his views with the media story line that had already been established, to satisfy a desire on the part of many who sought someone else to blame in addition to Jerry Sandusky for the awful abuse of children, or even to justify a pre-conceived conclusion he reached in good faith but that he could support only by contorting 'evidence' that otherwise did not fit his theory, or by something else. Only the test of time will judge those motives."

Caroline Roberto, counsel for Curley, responded to the Paterno family's report with a statement, saying:

"The 'nice guy' child sex offender is a chilling reality for people to accept. Jim Clemente, the former FBI profiler, asks the right questions, how could so many people -- good people in a good community -- fail to understand the red flags regarding Jerry Sandusky. Police, trained child protection professionals, family court personnel, coaches and school administrators, none of these people had malice in their hearts. Yet, everyone missed it.

"To deny that we all missed it and ignore the reasons why as explained by Mr. Clemente, is to do a disservice to our children, to the memory of Joe Paterno and to Tim Curley, who is unjustly accused of crimes that are inconsistent with his character and lifetime of service. Mr. Clemente's expert report and compelling explanation of 'grooming' of the community makes sense of this tragedy.

"We look forward to our day in court when all the facts and circumstances can be presented to a fair and unbiased jury."

Information from ESPN.com senior writer Don Van Natta Jr. was used in this report.