Commentary

Measured, but no less damning

Paterno family response to Freeh report raises wide-ranging, troubling questions

Updated: February 10, 2013, 10:00 AM ET
By Don Van Natta Jr. | ESPN.com

Joe Paterno's legacy was shredded by a damning 267-page report that concluded the Penn State coach had placed his vaunted football program above the safety of children preyed upon by a serial child sexual predator. Last July, the late coach's wife, Sue, and their children were devastated by the Freeh report's conclusions and by how quickly the man they loved was condemned by millions of Americans as a fraud.

Sunday, the Paternos struck back by releasing a damning report of their own. Titled "Critique of The Freeh Report: The Rush to Injustice Regarding Joe Paterno," a Washington, D.C., law firm hired by the Paterno family has produced a 238-page sweeping and provocative indictment of former FBI chief Louis J. Freeh's university-commissioned inquiry of the Jerry Sandusky child sexual abuse scandal.

By relying on three experts highly regarded in their respective fields, including former Attorney General Dick Thornburgh, the Paterno family report raises troubling questions about the findings, motives, independence and investigative techniques of Freeh's investigators. The Paterno family's report concludes there is no factual support for Freeh's "inaccurate and unfounded findings" that Paterno participated in a conspiracy of silence allowing Sandusky to run amok on and off campus sexually abusing young boys for more than a decade.

"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," Wick Sollers, the Paternos' attorney from the law firm King & Spalding, writes in the Paterno family report. "That bell can never be unrung, but the many associated errors can be corrected."

If the Freeh report was a prosecutor's relentless opening statement that delivered devastating, far-reaching consequences, the Paternos' rebuttal is a defense attorney's closing argument brimming with outrage and fury. It remains to be seen whether the public accepts the Paternos' fury and outrage as justified.

"There was just a rush to injustice," Thornburgh writes. "In the case of Mr. Paterno, that injustice was palpable."

When Freeh released his crushing report at an extraordinary 45-minute news conference on July 12, he acknowledged that some of his conclusions were based on circumstantial evidence. This weakness was aggressively attacked by the Paterno family lawyers and their experts. "For the authors of the report, there are no gray areas," Sollers writes. "They ascribe motives to people they never met or interviewed and interpret ambiguous documents with a clarity and decisiveness that is impossible to justify."

Make no mistake: The Paterno report is intended to "unring" the bell with the public. This won't be easy, but, the family hopes, it won't prove to be impossible, if people take the time to read the full report, which is posted at paterno.com. This hope explains why the report's release was so carefully stage-managed: Sue Paterno's letter explaining the need for the rebuttal to the football lettermen was leaked to The Associated Press on Friday, the Paterno family lawyer and experts appear on ESPN's "Outside the Lines" with Bob Ley on Sunday, and Sue Paterno's emotional interview with Katie Couric will be broadcast Monday.

If the Freeh report was a prosecutor's relentless opening statement that delivered devastating, far-reaching consequences, the Paternos' rebuttal is a defense attorney's closing argument brimming with outrage and fury.

It is also significant that the Paterno family report does not limit its harsh judgment to Freeh's investigation. The Paternos harshly criticize the two groups that quickly accepted the Freeh report: Penn State's Board of Trustees, whose members embraced the report on the day of its release without taking the time to read it in its entirety or discuss it among themselves, and the NCAA, whose leaders adopted the Freeh report's findings 11 days after its release by using the findings to crush the football program with unprecedented sanctions.

"The Freeh report was oversold to the public," Sollers writes. "Consequently, Penn State officials, the NCAA and other bodies detrimentally relied upon it in a rush to judgment about Joe Paterno. The limitations of the investigation, which were numerous and fatal to fundamental fairness, were not adequately explained or understood before that rush to injustice solidified the false public narrative about Joe Paterno."

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.

For some methodical stretches in that Paterno family report, it reads like a legal complaint, which is no doubt intentional. In early January, Pennsylvania Gov. Tom Corbett, a member of Penn State's Board of Trustees, filed a lawsuit against the NCAA seeking to overturn the sanctions against the university's football program. Now, a group of students, lettermen, alumni, board members and the Paternos are weighing whether to file their own lawsuit against the NCAA, sources say. A spokesman for the Paterno family, Dan McGinn, declined to answer questions about plans for a lawsuit.

The Freeh report cost Penn State $6.5 million; the haste with which it was accepted by the Penn State Board of Trustees has infuriated a large portion of alumni, some of whom have said the trustees and university leaders failed in their fiduciary duty to protect the university. McGinn would not say how much this inquiry had cost the Paterno family, but its price tag likely ran into seven figures.

The Paterno family report also finds: Joe Paterno never concealed or knew of allegations related to Sandusky during the initial 1998 criminal investigation, which a local district attorney later closed; Paterno reported to his superiors what Mike McQueary had told him he had seen Sandusky doing with a young boy in the Lasch Football Building showers one night in February 2001; Paterno told the truth when asked questions during a seven-minute grand jury appearance in January 2011; he took full responsibility for his actions publicly and privately. The report also concludes that there is no evidence that Paterno attempted to hinder any investigation in an attempt to avoid bad publicity.

When Freeh released his report, he hailed the inquiry's exhaustive nature, telling reporters that his investigators had interviewed 430 people and had reviewed 3.5 million documents. But the Paterno family report says the Freeh report's conclusions were based on 30 exhibits and 17 emails, none of which were written or received by Paterno (who almost never used email).

Thornburgh also reveals that the Freeh report never noted that a Penn State computer system overhaul wiped out records of all emails prior to 2004. The emails and other documents relied on by the Freeh investigators actually had been found in a file kept by university vice president Gary Schultz, sitting in a desk drawer. Thornburgh calls this one of the Freeh report's "most significant failures," adding, "the Freeh report ignored contrary evidence that Mr. Paterno did not have such knowledge."

The Paterno family report strongly refutes Freeh's assertions about the 1998 emails because if Paterno did not know about the initial Sandusky inquiry, key findings of the Freeh report, including the conclusion that Paterno "was an integral part of this active decision to conceal" Sandusky's crimes, would fall apart.

The Paternos' expert, James Clemente, a former FBI profiler and child abuse prosecutor, criticized the Freeh report for failing to consider that Sandusky was a "skilled and masterful manipulator, who groomed an entire community to obscure the signs of child abuse, using a variety of proven techniques." Clemente says that Sandusky fooled qualified child welfare professionals and law enforcement, as well as "laymen inexperienced and untrained in child sexual victimization like Joe Paterno."

When the Penn State Board of Trustees hired Freeh on Nov. 21, 2011, an engagement letter between the university and Freeh's firm, Freeh Sporkin & Sullivan, laid out the scope of Freeh's inquiry. Freeh was "to perform an independent, full and complete investigation of the recently published allegations of sexual abuse at the facilities and the alleged failure of PSU personnel to report such sexual abuse to appropriate police and government authorities," the engagement letter states.

The Paterno family report's experts argue that Freeh's report was far from full and complete because Freeh investigators' access to critical documents and principal witnesses was severely limited. "These limitations, which were understated or ignored in the report, call into question the legitimacy of the entire report," the Paterno family report says.

The most damaging documents in the Freeh report to Paterno are a handful of emails and notes that Freeh investigators found in March 2012. Freeh's investigators said the emails suggested Paterno, university president Graham Spanier, athletic director Tim Curley and Schultz were all aware of the 1998 criminal inquiry of Sandusky, who had showered with an 11-year-old boy, and were trying to conceal it. In emails in May 1998, Schultz says he had "touched base with" Paterno about the alleged incident. Days later, in an email with the subject line "Jerry," Curley emails Schultz, "Anything new in this department? Coach is anxious to know where it stands."

Freeh concluded "Coach" was a reference to Paterno and that Paterno, Schultz and Curley were beginning to engineer a cover-up of the incident.

But the Paterno family report calls that an "unsupported opinion" and "a fallacy." The report says Freeh failed to confirm "Coach" was Paterno when it could have referred to Sandusky or another coach; Freeh's investigators did not interview Curley or Schultz to explain what was meant by the emails; 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." The Paterno family lawyers interviewed lawyers for Curley and Schultz, who are awaiting trial for perjury later this year.

The Paterno family report strongly refutes Freeh's assertions about the 1998 emails because if Paterno did not know about the initial Sandusky inquiry, key findings of the Freeh report, including the conclusion that Paterno "was an integral part of this active decision to conceal" Sandusky's crimes, would fall apart.

There is another troublesome email implicating Coach Paterno that the Paterno family experts challenge. In February 2001, Spanier, Schultz and Curley met to figure out an action plan about the McQueary allegation that he saw Sandusky assaulting a boy in the shower. The options, according to Schultz's notes: report it to the Pennsylvania Department of Child Welfare, tell the chairman of the board of Sandusky's charity, The Second Mile, and tell Sandusky "to avoid bringing children alone into Lasch Bldg."

Two days later, Curley reported he had changed his mind about the action plan "after giving it more thought and talking it over with Joe [Paterno] yesterday." Curley decided to talk with Sandusky: If Sandusky was cooperative, they would inform The Second Mile, and not alert authorities. And if he was not cooperative, Curley said then, "We don't have a choice and will inform the authorities."

Spanier agreed to this approach, saying, "The only downside for us if the message isn't 'heard' and acted upon, and we then become vulnerable for not having reported it. But that can be assessed down the road. The approach you outline is humane and a reasonable way to proceed."

All three of the Paterno family's experts say this single email is insufficient grounds for Freeh to have concluded that Paterno conspired to cover up the 2001 incident. "The report falls glaringly short of suggesting, let alone proving, any concealment by Mr. Paterno," Thornburgh writes in the report.

On the day the Freeh report was released, the family released this statement: "Joe Paterno wasn't perfect. He made mistakes, and he regretted them. To think, however, that he would have protected Jerry Sandusky to avoid bad publicity is simply not realistic. We have said from the beginning that Joe Paterno did not know Jerry Sandusky was a child predator. Moreover, Joe Paterno never interfered with any investigation."

Four days later, the family directed Sollers to "set the record straight and find the truth as to Joe Paterno's conduct, whether positive or negative." During the seven-month span that Sollers conducted his own inquiry, Joe Paterno's reputation took a massive hit.

Besides this report, the Paterno family's rehabilitation strategy depends on reminding the public that Paterno's Penn State did not have a single NCAA violation and that his life, exemplified by his "Success With Honor" motto, was held up as a model and continues to be the source of inspiration for thousands of former student-athletes. Sollers criticized Freeh's investigators for failing to balance Paterno's character against "tenuous" facts. "In this instance, however, the Freeh report completely ignores Joe Paterno's lifetime record of moral conduct and altruism as if it were irrelevant to the case," he writes.

As a coda to that point, Sollers points out that Paterno, who died at the age of 85 in January 2012 after a short bout with lung cancer, had said in his final days that he only wanted the full truth about the Sandusky matter to come out. "In a handwritten note," Sollers writes, "Joe Paterno wrote: 'Good side of scandal: It has brought about more enlightenment of a situation [sexual abuse of young people] in the country.' As in life, Joe Paterno remained committed to helping others at his death."

Freeh on Sunday emphatically reiterated he believes otherwise: "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. These men exhibited a striking lack of empathy for Sandusky's victims by failing to inquire as to their safety and well-being, especially by not even attempting to determine the identity of the child who Sandusky assaulted in the Lasch Building in 2001."

After the Freeh report was released, the university accepted its findings and signed a consent decree accepting the historic NCAA sanctions. The Joe Paterno statue outside Beaver Stadium was hauled down and stuffed into storage. It all happened so quickly.

But that speed forms the foundation of the Paternos' rebuttal -- the "rush to judgment" by the Board of Trustees to fire the coach November 2011 was repeated by the board and then the NCAA after the Freeh report's release. The family's fight to rehabilitate Joe Paterno begins with this report, but it won't end with it. Even armed with these experts decrying the injustice, the Paternos' fight will be a slow, difficult slog. Americans don't easily change their minds.

Don Van Natta Jr. | email

Senior writer, ESPN The Magazine and ESPN.com