NYT Magazine July 2014: The Trials of Graham Spanier, Penn State’s Ousted President

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.”

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DOJ OIG July 2014 | An Assessment of the 1996 Department of Justice Task Force Review of the FBI Laboratory

This is the third review by the Office of the Inspector General (OIG) since 1997 related to alleged irregularities by the Federal Bureau of Investigation (FBI) Laboratory (Lab).2 The first two OIG reports focused on alleged FBI Lab deficiencies, the conduct of individuals brought to our attention by a whistleblower, and remedial actions the FBI took in response to our recommendations. This report addresses how the Criminal Division Task Force (Task Force), created by the Department in 1996 and whose mission was redefined in 1997, managed the identification, review, and follow-up of cases involving the use of scientifically unsupportable analysis and overstated testimony by FBI Lab examiners in criminal prosecutions. We analyzed the Task Force’s review of cases involving 13 FBI examiners the Task Force determined had been criticized in the 1997 OIG report. We included in our review a close examination of cases handled by 1 of the 13 examiners, Michael Malone, the Lab’s Hairs and Fibers Unit examiner whose conduct was particularly problematic.

Although the Task Force made a diligent effort to manage a complex review of thousands of cases, we found the following serious deficiencies in the Department’s and the FBI’s design, implementation, and overall management of the case review process.

First, despite some effort by the Task Force to segregate for priority treatment cases involving defendants on death row, the Department and the FBI did not take sufficient steps to ensure that the capital cases were the Task Force’s top priority. We found that it took the FBI almost 5 years to identify the 64 defendants on death row whose cases involved analyses or testimony by 1 or more of the 13 examiners. The Department did not notify state authorities that convictions of capital defendants could be affected by involvement of any of the 13 criticized examiners. Therefore, state authorities had no basis to consider delaying scheduled executions.

As a result, one defendant (Benjamin H. Boyle) was executed 4 days after the 1997 OIG report was published but before his case was identified and reviewed by the Task Force. The prosecutor deemed the Lab analysis and testimony in that case material to the defendant’s conviction. An independent scientist who later reviewed the case found the FBI Lab analysis to be scientifically unsupportable and the testimony overstated and incorrect. Two other capital defendants were executed (Michael Lockhart in 1997 and Gerald E. Stano in 1998) 2 months and 7 months, respectively, before their cases were identified for Task Force review as cases involving 1 or more of the 13 examiners. Although we found no indication in the Task Force files that the Lab analyses or examiners’ testimony were deemed material to the defendants’ convictions in these cases and, according to the FBI, the OIG-criticized examiner found no positive associations linking
Lockhart or Stano to the crimes for which they were convicted and executed, the Task Force did not learn this critical information before the executions so that appropriate steps could have been taken had the analyses or testimony been material to the convictions and unreliable.

Another capital defendant (Joseph Young) died in prison of natural causes in 1996 before the 1997 OIG report was published. However, the Task Force did not refer his case to the FBI for review by an independent scientist even though the prosecutor had deemed the FBI Lab analysis and testimony to be material to the conviction. It is not known whether the outcome of this defendant’s trial or his sentence would have been different without the examiner’s testimony, which in other cases was deemed scientifically inaccurate, exaggerated, and unreliable. In all, the Task Force referred only 8 of the 64 death penalty cases involving the criticized examiners for review by an independent scientist. We found evidence that the independent scientists’ reports were forwarded to capital defendants in only two cases. The Department should have handled all death penalty cases with greater priority and urgency.

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Washington Post July 2014 | Watchdog report faults FBI laboratory probe

WASHINGTON — The FBI and Justice Department didn’t move quickly enough to identify the cases handled by 13 FBI crime lab examiners whose work was found to be flawed, meaning defendants sometimes were never notified that their convictions may have been based on bad science, according to a government report released Wednesday.

The report from the department’s inspector general said it took the FBI nearly five years to identify the more than 60 death-row defendants whose cases involved analysis or testimony from one or more of the 13 examiners.

At least three inmates were executed before a Justice Department task force, created in 1996, had identified their cases for further review. In one of those cases, the 1997 execution of Benjamin H. Boyle in Texas, an independent scientist later determined that the FBI lab analysis was scientifically unsupportable, the report said.

BloombergBusinessweek July 2014 | Watchdog Faults Justice Department Review of FBI Lab Work

The Justice Department’s internal review of faulty FBI lab work had “serious deficiencies,” including the failure to make death penalty cases a priority, the department’s inspector general concluded.

In a 138-page report released today, the Office of the Inspector General said the Justice Department didn’t review all of the cases by a “problematic” FBI examiner whose work was known to be faulty and whose “scientifically unsupportable” testimony contributed to the conviction of an innocent defendant.

The report also found that the department failed to ensure that defendants learned their convictions may have been tainted, and it didn’t tell prosecutors it was important to swiftly alert defendants to the problems, especially in death penalty cases.

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