Joe Paterno’s Statue Should Go Back Up

Before I stick my neck out on this one, I should make some disclosures. I have no connection with Penn State. However, I am a graduate of Brooklyn Prep and Joe Paterno is arguably the most famous of our alumni. I played sports in college but I sometimes think that “major” sports have been overhyped at American universities. While I am a lawyer, I have not represented any of the parties involved in the Penn State controversy. Finally, pulling up you tubes of Joe Paterno giving speeches and making statements, I find his ability to generate Casey Stengel type text combined with a Joe Pesci type delivery absolutely stunning.

There is no doubt that Paterno was a great football coach and presided over a great program which produced many scholar athletes and earned the respect of both the football and academic community. He was on track to graduate into the canon of respected American heroes when the Sandusky scandal hit. He died before really having a chance to fight back against various accusations and his “status” has drifted into a limbo as part of a controversy which still engenders bitter division.

Still, if he is responsible for enabling Sandusky to victimize children, his legacy is undeniably tarnished. So, the issue really comes down to: 1. what really happened at Penn State? and 2. what was Paterno’s level of involvement? The University commissioned the Freeh Report which reached conclusions damaging to Paterno and which still seems to be the main basis for his characterization as part of a “cover up.” As time has passed, the Report has been attacked – most notably by a Report done by former Attorney General Thornburgh. I have reviewed the key reports and documents.

Because we are dealing with “reports” and not indictments (although some participants have been indicted), we do not have the benefit of the specificity in charges and accusations that the criminal process generally provides. This is important because it is very easy to make statements that appear to be incriminating but are – in fact – ambiguous in a “report.” Thus, it can be said that Paterno “failed to protect against a child predator” but it is also true that Barack Obama “failed to protect against a child predator” – what is critical is whether either of them had knowledge of the crimes or a sufficient reason to take action. Similarly, statements that Paterno (and others) “concealed” certain information suggests active measures rather than the simple fact that they disclosed the information to some people and not to others. On this basis, I could be accused of “concealing” the fact that my car was stolen because I reported it to the police but I did not report it to the Washington Post and local TV stations. Freeh’s report is heavy on this kind of ambiguity.

When we get to substance, the Freeh Report really comes down to two incidents. In 1998, there was an accusation against Sandusky, it was investigated by both the University and the district attorney’s office and the district attorney declined to prosecute. In the course of the investigation, it is true that some troubling information came out. The problem is that there is no evidence that Paterno knew anything about this. There are a couple of emails – in one of which the author says he “touched base with the coach” (presumably, but not clearly, Paterno) – but there is no detail, no direct testimony, and certainly no evidence that Paterno learned anything troubling. He may have learned that there was an investigation and that Sandusky was cleared but he may not even have learned that.

The second incident in 2001 involved a graduate assistant observing activity of Sandusky and a youth in the showers. The assistant reported it to Paterno and Paterno reported to the Vice President of the University who supervised University police. In this regard, the University police have the same authority as municipal police and enforce not only University rules but also the laws of the Commonwealth of Pennsylvania. Thus, referring the matter to the Vice President who controlled the University police was equivalent to calling the Chief of Police in a municipality. It was exactly the right thing to do. There has been considerable controversy over what was seen, what the assistant said to Paterno, what Paterno said to to the Vice President, and what actually happened. But once Paterno reported it to the Vice President, he would be safe in assuming that the Vice President would question the assistant and that what would be important is what the Vice President learned from the assistant rather than what the Vice President remembered about what Paterno said he remembered about what the assistant said to Paterno. In this incident the University may well have fallen down on its responsibilities by not reporting to the district attorney and the Department of Social Welfare in the county in which the University was located. But Paterno was not responsible for this lapse. He reported to the campus authority in the best position to investigate and determine what should be done. In fact, the Vice President consulted with University counsel to help resolve the difficult legal issue of how to proceed consistent with a respect for everyone’s rights. As far as I can tell, we still really don’t know what the result of that consultation was.

It is true that there came a point at which the University decided to consult with Sandusky before taking other measures and that, at around that time, the Athletic Director sent an email in which he wrote that “after talking it over with Joe…” he had decided to recommend that they talk to Sandusky. But even if Paterno had some role in the decision to confer with Sandusky and get his version, there is absolutely no evidence that Paterno had any role in any decision to refrain from contacting the district attorney or the Department of Social Welfare. It is still unclear why the University did not refer the matter to local authorities and what, if any, role the advice of the University’s counsel played in this matter.

Finally, in 2011, when the storm raged and a grand jury investigation occurred, Paterno testified before the Grand Jury that he had not been aware of any incident prior to the “second incident” described above. This testimony would be inaccurate if he had been informed of the first incident. He was 84 at the time of the testimony and the first incident had occurred 13 years before the testimony.

The unpleasant truth here is that we will probably never know the whole story. We will never know EXACTLY what – if anything – Paterno knew about the first incident and we are unlikely to ever know EXACTLY what he knew about the second incident or EXACTLY what he said to the Athletic Director or what role it played in the decision making process. The University changed its computer system in 2004 and records prior to that date are very thin. The investigative process in this matter sometimes resembles the analysis of Pre-Socratic Philosophy based on fragmentary and ambiguous snippets of text. However, it appears clear that, as to the first incident, he played no role in deciding what to do and very likely learned at most that Sandusky had been cleared. As to the second incident, he had every reason to assume that individuals with more legal and law enforcement experience would determine the correct course.

Based on what information we do have, there is absolutely no basis to determine that Paterno did anything wrong. He played no substantive role in the first incident and may have had no knowledge of it. In the second incident, he did exactly what the asistant did – he reported the incident up the chain to an individual who he had every reason to believe would take appropriate action. Period. It is true that he didn’t report the incidents to other people but entities but there is no reason to assume he had a reason to take such action. And his track record entitles him to at least a presumption of innocence. Child molestation is a horrible crime and what happened at Penn State was horrendous. But “nice guy” child molesters are notoriously elusive and adept at “hiding in plain sight”. This is certainly not the first time that a person well respected in a community got away with this pattern of behavior over a long period of time.

The facts set forth in the Freeh Report do not provide sufficient basis for a determination that Paterno did anything wrong. It is always difficult to prove a negative so I cannot assert with absolute certainty that he was completely blameless (just as I cannot prove that I am blameless of numerous crimes for which I do not have an alibi) but that is simply an inherent problem in dealing with a situation in which we have limited evidence. On the basis of the actual evidence we do have, it appears that this was no basis for his termination and no basis for tarnishing his great legacy. The statue should go back up. Sometimes society has to admit it has made a mistake.