Spanier's attorneys: Penn State's Freeh report not 'independent, fair and complete'

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Taking a tone that was aggressive and accusatory, attorneys for ousted Penn State University president Graham Spanier this morning held a news conference to address what they called the "blundering and indefensible indictment" known as the Freeh report.

The event appears to be a pre-emptive strike at preventing charges against the long-time university president by the continuing statewide grand jury investigation into a possible coverup of the child sex abuse scandal that centered on former assistant football coach Jerry Sandusky.

Mr. Spanier's attorneys spoke at length in Philadelphia about what they perceive as the flaws in the 267-page report released by former FBI Director Louis Freeh last month.

Among the claims:

• That the report is neither as thorough nor as complete as Mr. Freeh said because at least four of the key people involved in the situation either refused or could not be interviewed.

• That the report took on a prosecutorial bent instead of being the "independent" work that was commissioned.

• That the report leaves out significant pieces of information -- such as the fact that nearly all of the emails exchanged among university administrators before 2004 were wiped out in a technology changeover and that testimony from the Sandusky trial runs counter to the Freeh conclusions.

• That the report ignores the fact that law enforcement concluded there was no sexual abuse by Mr. Sandusky based on allegations raised against him in 1998 and no charges were filed.

• That the report "cherry picked" statements to support investigators' claims instead of presenting a witness' full interview and context.

• And that, even though Mr. Freeh said his team interviewed 430 people and reviewed 3.5 million documents, only a small fraction of that is depicted in the report.

Stef Goodsell of the New York-based communications company Kekst and Company Inc., which represents the firm Freeh Sporkin & Sullivan, issued a one-sentence statement in response.

"We stand by our report," she wrote in an email.

The news conference on Mr. Spanier's behalf was led by Timothy K. Lewis, a former federal district and circuit court judge, now in private practice.

Mr. Lewis introduced the rest of Mr. Spanier's defense team, noting that all of the members are also former federal prosecutors, like Mr. Freeh.

"I give you this background so you may be assured we are quite familiar with the difference between an 'independent, full and complete investigation,' which the university commissioned Judge Freeh to perform, and the blundering and indefensible indictment he and his staff produced," Mr. Lewis said.

He went on to call the Freeh report "a flat-out distortion of facts so infused with bias and innuendo that it is, quite simply, unworthy of the confidence that has been placed in it, let alone the reported $6.5 million the university paid for it."

The alumni group Penn Staters for Responsible Stewardship, or PS4RS, distributed a statement minutes after today's press conference reiterating the group's call for the immediate resignation of Penn State's board of trustees, saying its members have failed in their stewardship of the university.

"Every criticism articulated by Judge Lewis today should have been obvious to each and every member of the Board of Trustees when -- and if -- they reviewed the Freeh Report in detail," according to the statement.

The group's statement continued, adding that "it is more clear than ever that the Board of Trustees has failed in their fiduciary responsibility to Penn State by allowing such a blatant distortion of facts and rush to judgement to be the foundation for NCAA sanctions, Middle State accreditation warnings, and scathing deterioration of the Penn State brand."

According to the statement, PS4RS intends to issue its own comprehensive analysis, conducted by the group's legal and regulatory task force, of "the errors, unsupported conclusions, and misstatements of the Freeh report" in mid-September.

Following the release of the report July 12, the NCAA announced its sanctions against Penn State, including a $60 million fine, a four-year ban on postseason play, the stripping of all wins from 1998 to 2011, and a five-year probationary period.

The night before those sanctions were announced, Mr. Spanier sent a letter to the Penn State Board of Trustees in which he explained to them that he felt misled by the university's general counsel during the Sandusky grand jury investigation.

In addition, Mr. Spanier sent a lengthy list of inaccuracies, misrepresentations and factual errors he believed were in the Freeh report to Penn State's new general counsel.

Today, however, is the first time Mr. Spanier's attorneys have spoken extensively about the report.

They have been working for months to try avoid any possible charges even as the court case against two other high-ranking Penn State administrators, athletic director Tim Curley and retired vice president of business and finance Gary Schultz, moves toward trial.

Those men are charged with one count each of perjury and failure to report allegations of suspected child abuse, and trial has been scheduled for Jan. 7 in Harrisburg.

The critique of the report by Mr. Spanier's attorneys notes that the Freeh investigators did not interview Penn State's former outside counsel, Wendell Courtney, or the prosecutor who refused to press charges against Mr. Sandusky for an alleged incident of sexual misconduct in 1998.

Both refused to speak with the Freeh group.

In addition, Mr. Lewis notes that Mike McQueary, a then-graduate assistant working for the football program who witnessed an incident in the locker room showers in 2001 between Mr. Sandusky and a young boy, was not interviewed at the request of the state attorney general's office.

Nor was Jonathan Dranov questioned. A family friend and physician, he testified at Mr. Sandusky's trial that Mr. McQueary did not describe what he saw that night in the showers as anything sexual.

Mr. Curley and Mr. Schultz testified before the grand jury last year that Mr. McQueary described something like "horseplay" between the coach and the boy -- nothing of a sexual nature.

Mr. Spanier testified that the incident was described to him as "horsing around in the shower," but that it made a member of Mr. Curley's staff "uncomfortable."

During a five-hour interview with Mr. Freeh, Mr. Spanier repeated that information, and "unequivocally denied that he had ever heard a report about a sexual act involving a child," Mr. Lewis said.

Mr. Sandusky was found guilty on 45 of 48 counts against him at a trial in June in Centre County.

Among the three counts on which he was found not guilty was the charge of involuntary deviate sexual intercourse which involved the allegation by Mr. McQueary.

Mr. Sandusky is awaiting sentencing, which has not yet been scheduled.

The Freeh report included as exhibits a number of emails that investigators believe show a coverup among Penn State administrators.

In one exchange with Mr. Schultz and Mr. Curley in February 2001, Mr. Spanier agreed with an approach that the administrators encourage Mr. Sandusky to get counseling instead of reporting his conduct to the state Department of Public Welfare.

"The only downside for us is if the message isn't heard and acted upon, and we then become vulnerable for not having reported it," Mr. Spanier wrote in the email. "... The approach you outline is humane and a reasonable way to proceed."

Reporters asked the attorneys at the news conference to address that message by Mr. Spanier. Lawyer Jack Riley evaded a direct answer, instead saying his client will respond later.

"He will explain that if and when he discusses that in the public," Mr. Riley said. "It is in a different context than it has been given so far."

Mr. Riley said Mr. Spanier was busy running the day-to-day affairs of a $5 billion institution and received 150 to 200 emails each day.

"This email occurred at 10 p.m. on a Tuesday evening," Mr. Riley said. "It was responding to a supervisor who was in charge of the obligation of telling Jerry Sandusky 'no more kids in the shower from the Second Mile.' The remaining issue of the context he intended to convey, he will relate to you."

The attorneys lauded Mr. Spanier's record of accomplishment and background, saying that his character would not have allowed him to cover up abuse.

"It's not just his record of accomplishments," Mr. Riley said. "It's the fact that his value system has been strident in every position he has ever held. he has reported people consistently if they've broken the law. He has a very low tolerance for any nonsense. The bottom, bottom line is had he had anything given to him, reported to him, that even spoke of sexual abuse, sexual conduct, it would have been reported."

Mr. Spanier explained the emails himself in in a document he provided to the Freeh investigators and attached to his July letter to the board.

"My use of the word 'humane' refers specifically and only to my thought that it was humane of Tim to wish to inform Sandusky first and to allow him to accompany Tim to the meeting with the president of the Second Mile," Mr. Spanier wrote. "Moreover, it would be humane to offer counseling to Sandusky if he didn't understand why this was inappropriate and unacceptable to us. My comment that we could be vulnerable for not reporting it further relates specifically and only to Tim's concern about the possibility that Jerry would not accept our directive and repeat the practice."

Mr. Lewis did not address that email in his comments.

In his remarks, Mr. Lewis referred to Mr. Freeh as "a results-oriented investigator operating through the misleading prism of hindsight and influenced by a grand jury presentment with significant problems of its own."

The attorneys claim that dozens of people interviewed by the Freeh group have approached Mr. Spanier's colleagues to say that the information they provided was "distorted," and that other information they provided which would contradict the report's findings was left out entirely.

"[S]ome have suggested that their interviews had the tone of a witch hunt and that confrontational tactics were used," the attorneys' critique said. "That is, in some witnesses' minds, [Freeh] interviewers appeared to be interested only in perjorative statements and then cherry-picked even among those answers. Those methods are hardly the hallmark of an independent, fair and complete investigation."

Mr. Riley said the attorneys have been given no indication the attorney general will charge Mr. Spanier.

"We have no information that would lead us to believe that," he said. "We don't think there's a scintilla of evidence that would support that."

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Paula Reed Ward: pward@post-gazette.com or 412-263-2620. First Published August 22, 2012 3:15 PM


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