Critique of the Freeh Report: the Rush to Injustice Regarding Joe Paterno

1700 PENNSYLVANIA AVENUE, NW WASHINGTON, DC 20006-4707 202.737.0500 CRITIQUE OF THE FREEH REPORT: THE RUSH TO INJUSTICE REGARDING JOE PATERNO KING & SPALDING: FEBRUARY 2013 WICK SOLLERS MARK JENSEN ALAN DIAL DREW CRAWFORD CONTAINING INDEPENDENT EXPERT REPORTS BY: DICK THORNBURGH, LL.B. FORMER ATTORNEY GENERAL OF THE UNITED STATES JIM CLEMENTE, J.D. FORMER FBI PROFILER, PROSECUTOR, AND CHILD SEX CRIMES EXPERT FRED BERLIN, M.D., PH.D. PHYSICIAN, PSYCHIATRIST, AND PSYCHOLOGIST AT THE JOHNS HOPKINS HOSPITAL AND SCHOOL OF MEDICINE AND EXPERT IN PUBLIC HEALTH APPROACHES TO CHILD SEX ABUSE CRITIQUE OF THE FREEH REPORT: THE RUSH TO INJUSTICE REGARDING JOE PATERNO After the Freeh Group, which had been retained as Special Investigative Counsel (“SIC”) by the Penn State Board of Trustees to investigate the Jerry Sandusky child sex abuse scandal, released its report in July 2012, the Paterno family asked King & Spalding to conduct a comprehensive review of both the report and Joe Paterno’s conduct.1 They authorized us to engage preeminent experts and to obtain their independent analyses as an essential part of that review. This Critique of the Freeh report, which incorporates and attaches those independent analyses in full, sets the record straight. We conclude that the observations as to Joe Paterno in the Freeh report are unfounded, and have done a disservice not only to Joe Paterno and to the Penn State University community, but also to the victims of Jerry Sandusky and the critical mission of educating the public on the dangers of child sexual victimization. Dick Thornburgh, former Attorney General of the United States, and experts Jim Clemente and Fred Berlin, have each carefully examined the July 12, 2012 report prepared by Louis Freeh, and have each determined that the report is deeply flawed and that key conclusions regarding Joe Paterno are unsubstantiated and unfair. This Critique summarizes their expert conclusions and describes the most glaring errors on which the Freeh report is based. As Dick Thornburgh explains, the Freeh report reflects an improper “rush to injustice.” There is no evidence that Joe Paterno deliberately covered up known incidents of child molestation by Jerry Sandusky to protect Penn State football or for any other reason; the contrary statements in the Freeh report are unsupported and unworthy of belief. As described in more detail below, there is no reason to believe that Joe Paterno understood the threat posed by Jerry Sandusky better than qualified child welfare and law enforcement professionals. There is no evidence that Joe Paterno conspired with Penn State officials to suppress information because of publicity concerns. And Joe Paterno’s testimony before the grand jury in 2011 was truthful. As Messrs. Thornburgh and Clemente and Dr. Berlin have each concluded, the full story behind the tragic events involving Jerry Sandusky is not the one told by the Freeh report. SUMMARY OF KEY POINTS Joe Paterno’s last written words before his death focused on the victims of Jerry Sandusky. In a handwritten note, Joe Paterno emphasized: “Good side of scandal - it has brought about more enlightenment of a situation (sexual abuse of young people) in the country.” The Paterno family directed King & Spalding to seek independent opinions of the Freeh report by experts in identifying and investigating child victimization and pedophilia, as well as by experts in conducting independent and reliable internal investigations. Those independent experts include the former top legal officer of the United States, Attorney General Dick Thornburgh; former FBI profiler and child molestation and behavioral expert, Jim Clemente; and The Johns Hopkins Hospital and School of Medicine physician and psychologist, Fred Berlin. i THE RUSH TO INJUSTICE REGARDING JOE PATERNO King & Spalding’s Critique of the Freeh report, which incorporates the independent analyses of these three prominent experts, concludes that the Freeh report is deeply flawed and that its conclusions as to Joe Paterno are unfair and unsupported. Each one of the Freeh report’s main observations about Joe Paterno is wrong: each is either contradicted or unsubstantiated by the evidence. The authors of the Freeh report chose not to present alternative, more plausible, conclusions regarding Joe Paterno’s role in the events involving Jerry Sandusky. This Critique concludes, based on our interviews, including of Coach Paterno before his death, based on our review of documents and testimony, and, importantly, based on information from our access to the lawyers for other Penn State administrators, that (1) Joe Paterno never asked or told anyone not to investigate fully the allegations in 2001, (2) Joe Paterno never asked or told anyone, including Dr. Spanier and Messrs. Curley and Schultz, not to report the 2001 incident, and (3) Joe Paterno never asked or told anyone not to discuss or to hide in any way the information reported by Mr. McQueary. Joe Paterno reported the information to his superior(s) pursuant to his understanding of University protocol and relied upon them to investigate and report as appropriate. Former Attorney General Thornburgh is an expert in conducting effective fact investigations. He has reviewed the Freeh report and concluded that its investigative methodology is flawed, that its factual findings are limited and incomplete, and that its observations as to Joe Paterno are unreliable and unfounded. In the former Attorney General’s own words, he concluded: “The lack of factual support for the SIC’s inaccurate and unfounded findings related to Mr. Paterno and its numerous process-oriented deficiencies was a rush to injustice and calls into question the credibility of the entire Report.”2 “In my opinion, the Freeh Report is seriously flawed, both with respect to the process of the SIC’s investigation and its findings related to Mr. Paterno.”3 “When considered in the context of investigation ‘best practices,’ it is evident that the Freeh Report and many of its findings as they relate to Mr. Paterno are not accurate, thorough, fair or credible. The process of the SIC’s investigation was deficient in numerous ways, including the failure to interview virtually all of the key witnesses and the reliance upon limited, ambiguous documents.”4 “Perhaps most significantly, the findings in the Freeh Report about Mr. Paterno concerning his alleged knowledge of the 1998 incident and purported concealment of the 2001 incident were not properly supported.”5 “This lack of evidence supporting the Report’s most scathing findings and the serious flaws with respect to the process of the SIC’s investigation cause me to conclude that the Report’s findings concerning Mr. Paterno are unjust and wrong.”6 ii THE RUSH TO INJUSTICE REGARDING JOE PATERNO The Freeh report was oversold to the public. Penn State officials, the NCAA, and other bodies detrimentally relied on the Freeh report 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. The Freeh report missed a critical opportunity to educate the public on the identification of child sexual victimization, and instead used the platform created by this scandal to sensationalize the blaming of Joe Paterno. The Freeh report ignored decades of expert research and behavioral analysis regarding the appropriate way to understand and investigate a child sexual victimization case. Mr. Jim Clemente is one of the leading former FBI profilers of child sex offenders, and himself a survivor of childhood sexual victimization. As Mr. Clemente bluntly put it: “The SIC failed to properly factor the dynamics of acquaintance child sexual victimization cases into their investigation. Consequently, the SIC misinterpreted evidence and behavior and reached erroneous conclusions. Any investigation will reach the wrong result by using the wrong approach and by interpreting the facts through the wrong filter.”7 “There is no other way to say it: on the most critical aspects of the Sandusky investigation, the SIC report is a failure. It does a tremendous disservice to Penn State, Joe Paterno, and the victims of Jerry Sandusky.”8 Expert analysis shows that Jerry Sandusky was a “skilled and masterful manipulator,” who deceived an entire community to obscure the signs of child abuse, using a variety of proven techniques. Those techniques included: perpetuating an image as a playful “nice guy” who was a foster and adoptive parent with kids around him at all hours in all types of capacities, leveraging his position as a respected member of the community, and creating a children’s charity to legitimize his credibility in interacting with kids. Expert analysis shows that Jerry Sandusky fooled qualified child welfare professionals and law enforcement, as well as laymen inexperienced and untrained in child sexual victimization like Joe Paterno. Sandusky’s techniques as a pillar of the community created a proven psychological and cognitive impediment for them to recognize the red flags and other signs that Sandusky was a child molester. Joe Paterno himself knew very little about Jerry Sandusky’s personal life and did not know private details about Sandusky or his victims. For decades, Joe Paterno respected Sandusky’s talent as a coach and professional colleague and recognized Sandusky’s widely-stated passion for helping kids, but the Freeh report missed that they disliked each other personally, had very little in common outside work, and did not interact much if at all socially. Expert analysis shows that while signs of Jerry Sandusky’s child molestation existed with the benefit of hindsight, at the time of the 2001 shower incident reported by graduate assistant Mike McQueary, information was conveyed to Joe Paterno in terms that were too general and vague for him to disregard decades of contrary experience with Sandusky iii THE RUSH TO INJUSTICE REGARDING JOE PATERNO and to conclude that Sandusky was a child predator.

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