Freeh report is suitable template for civil suits, experts say

Penn State inquiry establishes 'culture of self-preservation'


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In no uncertain terms, Louis Freeh's team connected the dots between the horrific pattern of child sexual abuse perpetrated by one man, Jerry Sandusky, and a culture of self-preservation pervasive in the highest levels at Penn State University, attorneys for the victims said Thursday.

That, they said, may aid those victims seeking justice through civil litigation, some of whom have already indicated they will sue the university.

"It demonstrates a colossal and monumental failure of the leadership of Penn State ... an institutional breakdown and individual lack of moral compass and understanding of the fundamental responsibility to the public and to children," said attorney Tom Kline, the attorney for Victim 5.

Without the report, "We would be starting like we do with much litigation -- on our 10-yard line. And we're now starting on their 10-yard line."

The report also raises the specter of criminal charges against former Penn State president Graham Spanier, called out as one of the four who "failed to protect against a child sexual predator harming children for over a decade." In the executive summary, the report contradicts Mr. Spanier's insistence that he knew nothing of the abuse.

"It is more reasonable to conclude that, in order to avoid the consequences of bad publicity, the most powerful leaders at the university ... repeatedly concealed critical facts relating to Sandusky's child abuse from the authorities."

When asked whether what his team discovered could be construed as criminal, Mr. Freeh said "Those are all legal conclusions I'm not prepared to make."

One of the discoveries made by Mr. Freeh's investigators was an email exchange that shows Mr. Spanier, the late football coach Joe Paterno and former athletic director Tim Curley and retired vice president Gary Schultz wrestling with how to deal with Mr. Sandusky. Mr. Schultz and Mr. Curley are facing trial for failing to report abuse to authorities.

In February 2001, after then-graduate assistant Mike McQueary reported seeing Mr. Sandusky assault a child in the shower, Mr. Spanier claims that he was alerted to the incident, but he told Mr. Freeh's investigators that it was described to him as "horsing around" and "nothing sexual."

Still, emails uncovered by the Freeh team indicated that Mr. Spanier approved a plan to ask Mr. Sandusky to get "professional help" and that he was concerned about making the university "vulnerable" should Mr. Sandusky's behavior continue. Though he denied knowing that Mr. Schultz and Mr. Curley considered reporting the matter to the state Department of Public Welfare, notes from a meeting he attended indicate that was also discussed.

These things don't match up with Mr. Spanier's contention that what he knew about was just "horseplay," said Wes Oliver, a law professor at Duquesne University.

"Based on what we have, there's enough to circumstantially infer that he knew," he said. "If he thought it was just a ... shower after tee ball, you don't recommend a psychologist after that."

Mr. Oliver believes the report could lead to charges against Mr. Spanier for failing to report the matter to authorities or to investigate further. And he believes Mr. Paterno, were he still alive, might have also faced charges, since there's evidence in the emails that he influenced Mr. Curley to not go to DPW.

Jeff Fritz, the attorney for Victim 4, agreed the report lays out evidence that could be used to charge Mr. Spanier.

"What is clear is they made a conscious decision to make the wrong decision," Mr. Fritz said. "These weren't mistakes. These were crimes that were committed."

Michael Boni, the attorney for an individual who has been identified only as Victim 1, said he views it as "an admission by Penn State that it's liable to the victims of this cover-up.

"The report makes crystal clear that those four made a conscious, overt decision to not report Sandusky's transgressions," he said. "By not doing it, they brought about a situation where my client and others were abused as a direct result of their action."

Other attorneys disagreed about whether the actual Freeh report document would be admissible as evidence since it was not prepared by law enforcement, but it nonetheless showed them where to look to build their cases.

"It means certainly that we have a lot more information, a lot more context to the information," said Matthew Casey, an attorney representing victims 3, 7 and 10. He also represents others who claim they were abused by Mr. Sandusky prior to 1998, though he was never charged criminally in those cases.

Mr. Kline, the attorney representing Victim 5, called the report a template for a lawsuit. It even uses the same statutory language that describes an organization's culpability in these scenarios.

"[Mr. Freeh] reaches conclusions that are identical to the civil standards in a case that needed to be proven against Penn State," he said.

The report, which lays substantial blame on Mr. Paterno, could make his estate more vulnerable to lawsuits, Mr. Kline said.

"The documents are very damning to Joe Paterno," he said. "There's no doubt that there is a significant culpability placed on Joe Paterno, and there's not much doubt in my mind that means that there is exposure to his estate."

Attorneys and legal observers largely praised the thoroughness of the report and applauded the Penn State board of trustees for commissioning an investigation that likely exposed them to greater liability.

Nicholas P. Cafardi, a Duquesne law professor who investigated the Catholic Church after reports of child sexual abuse by priests, said it demonstrates the report was not soft-pedaled and that Mr. Freeh was not limited in his scope.

"The bishops were under the same exact quandary. They knew that they had to get this problem behind them, but they also knew by publishing, additional lawsuits would be filed," he said. "Having Louis Freeh do his report and make it public was the exact right thing to do."

state

Moriah Balingit: mbalingit@post-gazette.com, 412-263-2533 or on Twitter @MoriahBee. Staff writer J. Brady McCollough contributed to this report. First Published July 13, 2012 4:00 AM


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