In defense of Joe Paterno

It is with shock and tremendous sadness that I am following the events coming out of State College, where Jerry Sandusky, a former assistant coach under Joe Paterno at Penn State, is charged with sexually assaulting at least 8 boys.  The grand jury presentment can be found on the website of the Pittsburgh Post-Gazette here.  Be warned: it makes for very disturbing reading.  In my decades of historical research, I've read about some of the most brutal atrocities in history, and this document made even me uncomfortable. 

The charges against Sandusky are so disgusting, so vile that it can and does easily become a case of guilty until proven innocent.  For anyone associated with them.

Before I continue, let me tell you three stories from my personal experience:

• When I was in junior high, there was a gym teacher who was persistently rumored to have ... let's just say an "inappropriate" way of treating male gym students.  Needless to say, I was not happy when I found out that he was going to be my gym teacher for a semester.
  
  (Of course, I wasn't happy about taking gym to begin with.  Mandatory gym class is stupid, and is usually little more than open season on us who are not athletically gifted.  But that's a subject for another post.)
  
  I survived that gym class.  Never saw anything that could be considered even remotely inappropriate on the teacher's part.



• After I graduated high school, a teacher friend of mine was charged with sexual misconduct with a student.  In conversations with me, the teacher always maintained his innocence.  The evidence against him was slim: basically the student's word against hs.  No physical evidence and no witnesses.  But the prosecutor's office, driven by a media frenzy, had to press the case forward by tying it up without going to trial, driving the teacher to accept a plea deal to avoid bankruptcy from the legal fees (remember that ethics rules prohibit criminal defense lawyers from working on contingency).  Guilty until proven innocent.
  
  The teacher always maintained to me that he had caught the student engaged in a homosexual act with another student at the high school, and that when the teacher tried to report it, the student (and the students parents) instead threw it back at the teacher to avoid punishment, public embarassment and, perhaps, the stigma of being labeled as gay.  Having known the student involved, while I can't say for certainty what the true story was, I believe the teacher's story has credibility.  Nevertheless, the teacher, who was very popular at the high school, was never able to put forth his defense and his career was ruined.



• One of my friends at my old job was a former deputy prosecutor of sex crimes.  A libertarian type, she was usually tying to curb my anger at criminals like the ones who hurt me, and get me to question my own presumption of the guilt of those criminals.  In one conversation we had in my office, she closed the door, disheveled her hair, unbuttoned a few buttons on her blouse and messed it up a bit.  She then told me she could walk out of my office, say I tried to rape her and everyone would believe her.  It was that easy, she said, to make such an allegation, and thus, to make a false allegation. Same thing with child molestation.  Guilty until proven innocent. 
  
  That gave me pause and has made me reconsider my hard-line on criminals.  She always had a way of doing that.  That's a good thing.

I bring these incidents up because I am seeing an avalanche of fire and brimstone being hurled at Joe Paterno (see, e.g., Post-Gazette editorial, the Post-Gazette's Ron Cook, ESPN's Howard Bryant, Fox Sports' Jen Floyd Engel, Fox Sports' (excellent) Jason Whitlock, Pennsylvania State Police Commissioner Frank Noonan, for starters).  Joe Paterno did what he was legally required to do, they all admit, but, of course, he was morally required to do more.

Is that really true?

There is a reason why the legal requirements are what they are.

Let me first start out by saying that I am not defending the conduct of Penn State Athletic Director Tim Curley and Vice President Gary Schultz.  If the allegations are true, Curley and Schultz not only did not investigate the allegations against Sandusky, they tried to cover it up, including lying to a grand jury.  Very, very bad.  You do not lie in a legal proceeding.  Period.  What they are alleged to have done here is inexcusable.

Moreover, I cannot say what Joe Paterno was thinking in taking (or not taking) the actions he did (or did not) in reporting the allegation of Sandusky's conduct to his superiors and doing, apparently, little else.  Perhaps he will say something, perhaps new evidence will come out, that may change things.

Finally, I am not a parent.  The closest I have to children are three cats.  So I can't say I am experienced with the emotions involved in being a parent.  That undoubtedly affects my opinion here.

That said, the case against Joe Paterno is, in my opinion, not nearly as clear-cut as many are making it out to be.

The issue for the media here is "protect the children."  And it is indeed the biggest issue, but it is also a very complicated one, because in what sometimes becomes the mad rush to "protect the children" innocent people can be flattened. Remember the McMartin pre-school.  Remember my story above. Guilty until proven innocent.

The same can be said of rape.  Remember the Duke Lacrose (Non-Rape) Case.  Remember the former deputy prosecutor's statememnt to me about how easy it is to get a rape charge to stick.  Guilty until proven innocent.

So, let's say you're Joe Paterno. ("You're Joe Paterno.")  Graduate Assistant Mike McQueary comes to you distraught and tells you he has seen your former coach Jerry Sandusky do inappropriate things with a 10-year old boy in the shower.  (Precisely what McQueary told Paterno is disputed.)  You've known Sandusky for at least 30 years, probably been friends with him that long.  Assume for the sake of argument he never had a problem of this sort with Sandusky (which is not necessarily accurate, as I will explain below.)  Sandusky founded the Second Mile, an agency that helps at-risk youth. 

You know that if this is made public, regardless of the truth, Sandusky will be utterly destroyed.  Second Mile may be destroyed as well.

Since Sandusky is no longer your coach, he is no longer under your jurisdiction, but under the jurisdiction of the athletic director, yet you have immense influence over the athletic department, even though the director is ostensibly your superior.

Keep in mind that you only have your assistant's statement of the incident.  You did not witness the incident and have not witnessed any such conduct yourself. 

Keep in mind, too, that you are not law enforcement, you are not a lawyer, you are not a social worker, you are not a child psychologist.  You are a football coach.  A very good football coach.

What do you do?

My guess is that Joe Paterno had a second question in mind, one that the media is missing right now: what if Sandusky is innocent?

Paterno immediately told his boss, Athletic Director Tim Curley, who has the actual institutional authority over Sandusky.  As has been pointed out ad infinitum, that was all that Paterno was legally required to do.

According to the presentment, about a week and a half later, Curley and University Vice President Gary Schultz, who has authority over the Penn State University Police, met with McQueary and said they would look into it. You, Joe Paterno, were not at this meeting, but you were told about it.

Later, McQueary was told that Sandusky's keys to the locker room were taken away, he was prohibited from bringing children onto campus, and Second Mile was notified.  At some point, you, Joe Paterno, are told about this. You are told nothing else.  You hear nothing else.  You witness nothing else.

Now what do you do?

You had told your boss, who has access to the investigative, legal and PR expertise that you do not.  You, Joe Paterno, are a football coach.

Your boss can look at the legal ramifications -- university liability for any misconduct on campus, whether alleging Sandusky did anything risks a defamation suit, whether the university can legally sever its relationship with Sandusky.  You cannot.  You are a football coach.

And your boss brought in the guy who runs the University Police.  The University Police has the legal authority and the expertise to investigate such matters.  They can find the truth.  You cannot.  You know what McQueary told you, but you don't know what happened.  Could McQueary have been mistaken? After all, this was one incident.

You are later told that Sandusky's keys were taken away, he was prohibited from bringing children on campus and that Second Mile was informed.  What does that mean?  What happened? What did they find?  Was Penn State just limiting its liability? Enforcing a violation of policy?

You, Joe Paterno, have been told nothing else of the investigation.  But is that really unusual?  Is that even a bad thing?  Protecting the children is important, but not at the expense of an innocent man.  If the investigation got out, even if Sandusky is innocent he would be destroyed.  It's not like the Penn State could announce, "After an extensive investigation, we have found that Jerry Sandusky did not commit sexuual assault on a minor."  Like that would make everyone feel better.  It had to be kept quiet until and unless there was something really bad.

And if it had been somthing really bad, you would have heard something or been told.  You haven't.  If it had been something really bad, there would be criminal charges.  There were none.

So, now what do you do?  Follow up?  That's what the media says now.  But exactly how would you do that?  Check in on how the investigation is going?  How exactly would it look to have Jerry Sandusky's very influential friend of 30 years to be "checking" on an investigation of him?  Can you say "appearance of impropriety?" Your intent may be the most honest and conscientious, but that's not how it would look, especially if Sandusky was exonerated.  That is no small matter.  The media would crucify you, Sandusky and the university.  No, you need to stay as far away from the university investigation as possible, for the best interests of all involved, including the children.

Should you call the police yourself?  You, with possibly the most widely recognized face -- and voice -- in Pennsylvania?   You call and they'll recognize you, even if you call anonymously.  And the story will get out, because it always does (as it did now).  And it will be, "Joe Paterno called the police to report sexual assault of a minor."  Well, on whom was he reporting?  That road leads back to Sandusky.  And even if he's innocent, he's destroyed. 

And the media would still crucify you.  You can just imagine the questioning:

Reporter: So, you reported the sexual assault?

Paterno: Yes.

Reporter: Can you describe what you saw?

Paterno I didn't see anything.

Reporter: What?

Paterno: My graduate assistant told me about it.

Reporter: He told you about it?

Paterno: Yes.

Reporter: But you didn't see it yourself?

Paterno: I did not.

Reporter: Did anyone else tell you about it?

Paterno: No.

Reporter: So you turned in a man for sexual assault of a minor solely on the word of one of your graduate assistants?

The questioning would likely go downhill from there.

How about calling child welfare? The child abuse hotline? Same problem -- you'd be recognized and the story would get out -- further complicated by the fact that you don't know the identity of the child involved.

You see where I'm going with this.  You, Joe Paterno, are damned if you do and damned if you don't.

Look at what I've presented above.  Look at the scenarios.  In my opinion, there is no easy answer for Paterno.  What he did here is understandable, rational and reasonable under the circumstances. 

In this situation, Paterno was in over his head, and he knew it.  He turned it over to people who had the authority and the expertise to investigate it and pursue it as far as it needed to go.  That they did not and instead covered it up is not on Paterno.  He did what he was supposed to do.  If he had tried to go further ... well, you saw above what probably would have happened.

Now, you may say, "The easy answer is to do what's best for the children."  I understand that, whatever that means.  But my question to you is, "What if Sandusky is innocent?" 

Based on the grand jury presentment and the charges of multiple incidents, it looks like the chances of Sandusky being innocent are slim.  But, based on what I've seen so far, that is not what Joe Paterno knew or was told.  He saw nothing.  He was told of a single incident witnessed by a single assistant coach.

The assistant's allegation is obviously extremely serious, but it's also slim on the evidence.  Maybe McQueary was somehow mistaken in what he saw.  What if Sandusky is innocent?

The bosses at Penn State could see if there is more evidence to either prove or disprove the charge here -- question Sandusky, find the child, etc.  But that is not something Joe Paterno could do.  He is a football coach.

That the Penn State administration allegedly did not is inexcusable.  But that is not on Joe Paterno. 

I know I'm probably in a minority position on this one.  But just give it some thought.  Paterno's case is not as easy as it it being made out to be.

There is one major wild card out there: an allegation that Sandusky committed a similar act in a Penn State shower in 1998.  That would certainly have given McQueary's charges more credibility and should have warranted further investigation.  But it's not clear how or if Paterno was involved.  How further inquiry into that incident unfolds could change what Paternos' responsibilities actually were in this scandal.

Finally, a major tip of the hat to Pennsylvania Attorney General Linda Kelly for bringing these charges.  This cannot be easy for her.  With the results of her grand jury she has created a firestorm the likes of which we have not seen in a long, long time.  That she was appointed to the office (to replace Tom Corbett, who became governor) and is not seeking election to a full term as attorney general does insulate her somewhat politically.  Nevertheless, it takes a lot of courage for a public official to take on something like this.  Give her credit.  Be proud of her, Pennsylvania and especially Pittsburgh.  Takes notes, everyone else.  Our country would be much better off if more public officials had the courage of Linda Kelly.