JULY 16, 2014
The trustees commissioned Louis Freeh, the former director of the F.B.I., to investigate how Sandusky, who was still awaiting trial, had been able to exploit children, some of them on campus, for more than a decade. The mission Freeh was given seemed to presuppose that Sandusky’s crimes were not his alone and that people who had reason to suspect him had looked away.
The ongoing scandals involving sexually abusive Catholic priests and their superiors who moved them from parish to parish loomed in the background. But that was a systemic failure, an intricate web of deceit, that had persisted for decades. No one was suggesting that Sandusky was part of some nationwide trend of college football coaches who molest children. The impulse at Penn State, however, was to try to determine if Sandusky’s pathology was connected to something larger.
Freeh, who was a prosecutor and later a federal judge before he led the F.B.I., was in private practice and in demand for these types of independent investigations, and the reports he issued carried the weight of his stature. He assembled a team of investigators that included, as he would point out, a lawyer who was a former Navy Seal. The university paid Freeh’s law firm a fee of $8.2 million.
The practice of commissioning independent reports, like Freeh’s, goes back decades. The investigations rarely follow the rules that pertain to criminal prosecution in U.S. courts; for example, individuals implicated in wrongdoing, who would be called defendants in a courtroom, do not usually get to mount a defense. The resulting reports are often more akin to indictments than verdicts.
On July 12, 2012, Freeh issued his 267-page account of what occurred at Penn State. Some of the writing was of the type meant to impress, or perhaps overwhelm, a reader with the firepower that his team brought to the job. The report states that investigators conducted 430 interviews of “key university personnel and other knowledgeable individuals” and that “over 3.5 million pieces of pertinent electronic data and documents” were analyzed. (This would have required examining an average of 15,000 items a day over the course of the investigation, which lasted nearly eight months. It seems likely that many of the documents were merely scanned electronically for keywords.)
The Freeh Report was blistering in its tone and stunning in its reach. “The most saddening finding by the Special Investigative Counsel is the total and consistent disregard by the most senior leaders at Penn State for the safety and welfare of Sandusky’s child victims,” the report stated. It then named those leaders — Spanier, Paterno, Schultz and Curley — and said they had “failed to protect against a child sexual predator harming children for over a decade.” Schultz and Curley had already been charged; Spanier had not, but Freeh’s report probably led to his indictment. The fourth man held culpable, Paterno, was dead.
Freeh’s references to the Penn State community and culture were not received as some airy metaphor. “When that report talks about a corrupt culture, that’s me,” John S. Nichols, an emeritus professor from the College of Communications and former chairman of the faculty senate, said when I spoke with him in State College. “I take it personally. It says there was a conspiracy to cover up child sexual assault to protect the image of football, and that it was carried out by these four people and that the community had culpability as well. That did not happen.” Referring to the pending criminal cases, he said, “Call me old-fashioned, but I still believe in the presumption of innocence.”
About 30 former chairmen of Penn State’s faculty senate signed a statement denouncing the school’s surrender. They noted that the consent decree actually went beyond the Freeh report in its censure. Football at Penn State, the decree said, was “held in higher esteem than the values of the institution, the values of the N.C.A.A., the values of higher education, and most disturbingly the values of human decency.”
There is no mystery why Penn State signed the document — it was under duress. The N.C.A.A. was threatening to shut the football program down for as long as four years, a rare punishment colloquially referred to as the death penalty. Rodney Erickson, Spanier’s successor, told the ESPN news program “Outside the Lines” that he signed the decree to save Penn State football. “I think the death penalty would have been far, far worse for the program and the university over the long run,” he said.
It was a remarkable admission. Penn State had been held to account for being so focused on football that it was blinded to more important human values. It then agreed to a document crafted to save football.
Dick Thornburgh, the former U.S. attorney general and two-term governor of Pennsylvania, was hired by the Paterno family to review the Freeh Report. His own report, released last year, noted that Freeh quoted some witnesses anonymously, leaving no way to assess their credibility, and made liberal use of grand-jury testimony, which is elicited by a prosecutor and not cross-examined. Many key witnesses were not interviewed by Freeh’s team, including McQueary. The report quoted from his testimony.
Freeh, who did not respond to my interview requests, did talk to Spanier, but less than a week before he issued his report. “By then, I’m sure that the report was already written,” Thornburgh said. “Anyone who has ever participated in one of these investigations would know that to be the case.” While expressing respect for Freeh, Thornburgh considers the report so flawed as to call into question all of its findings relating to the individuals it names as well as the supposed guilt of the Penn State community. “The language that I find most objectionable is the charge that Paterno and others, in order to avoid the consequences of bad publicity, repeatedly concealed facts relating to Sandusky’s child abuse,” Thornburgh said when I interviewed him at his Washington office in May. “There is no factual basis in the record for that whatsoever. I challenge anybody to find it. It’s outrageous.”