Joe Paterno report is 200 pages of nothing, but the full story is still coming

Mario Tama

The Paterno Report mostly serves as a hagiography of the former coach and an opening shot in the civil suits that will soon be filed against his estate. An actual lawyer explains how the report will only serve to embolden Paterno's defenders while failing to illuminate any of the facts surrounding the Sandusky cover-up.

Joe Paterno was never convicted of a crime. He wasn't even indicted for one. You can't prove beyond a reasonable doubt that he was involved in covering up Jerry Sandusky's crimes. That's why, unlike former athletic director Tim Curley and vice president Gary Schultz, Paterno was not indicted by a Pennsylvania grand jury.

The Paterno Report does an excellent job of validating the prosecutor's decision not to indict Paterno. Other than that, it only serves to obfuscate the coach's legacy.

In brief, the Paterno Report argued that the Freeh Report relied on incomplete or insufficient evidence. Most of the e-mails cited by the report were not obtained from a central server but from a printed-out file in Schultz's office. The Paterno Report also argues that those e-mails were taken out of context, that when Curley wrote of speaking to the coach in an e-mail with the subject of "Jerry," he was not necessarily talking about speaking to coach Paterno.

Some of the criticisms of the Freeh Report ring hollow though. The Paterno Report complains that Freeh didn't interview people who have invoked their Fifth Amendment right against making self-incriminating statements. It also says the Freeh Report is deficient in part because it did not interview Ray Gricar, the former Centre County district attorney who has been missing since 2005. Just because Freeh couldn't do the impossible does not mean that his investigation was inadequate. But ultimately these so-called deficiencies and competing reports will be rendered irrelevant as criminal and civil cases against Penn State and its employees progress.

A more definitive accounting of the events leading to Paterno's role will most likely come out at Curley's trial. Because of the evidentiary burdens placed on the prosecution (which is forced to hand over any exculpatory evidence to the defendant), Curley's counsel will have plenty of time to accumulate such evidence and, as I noted back in July, he can escape a lot of criminal and civil liability if he pins the decision not to report Sandusky on Paterno.

Even if Curley can get the prosecution to drop its case, he still has the incentive to argue that Paterno was calling the shots in civil cases against him. And a vigorous prosecutor would seek to prove that Curley is calling the shots, which means putting forward evidence showing that Paterno did not order the cover-up. Further, once civil litigation starts, the discovery process will comb through every hard drive and notebook at Penn State and put the relevant portions into evidence.

So what, if any, effect will the Paterno Report have?

The first is that it will serve to embolden factions of the Penn State community who want to sue to overturn the consent decree that president Rodney Erickson entered into with the NCAA banning the team from postseason play, reducing its scholarships, and paying a fine. As I noted in an earlier article, the state of Pennsylvania's case against the NCAA is a turd. But if someone who actually has standing brings a lawsuit (perhaps the local chamber of commerce -- most people affiliated with Penn State are bound by the consent decree), then it could succeed on the merits.

The Paterno Report will also serve to embolden Paterno's supporters. Anyone who writes on the Internet knows that his backers have a fierce desire to defend his legacy. Now defenders have 200-plus pages they can point to as they allege their hero was railroaded.

Just because it's signed by a lawyer doesn't mean that it's dispositive though. I'd rather have actual facts than a hagiography that relies on, among other things, Penn State's lack of NCAA violations as proof of Paterno's character.

So what do we know? We know that in 1998 Curley sent an e-mail to Schultz with the subject "Jerry" and noted "the coach" was anxious to know where it stands. We know that assistant Mike McQueary told Paterno he saw something in the Lasch Building showers and that Paterno, a former classic literature major, said that he couldn't wrap his head around the idea that it could be sodomy. We know that Paterno reported the matter to Curley and Schultz and that Curley declined to report Sandusky, reportedly after a meeting with Paterno.

Hundreds of pages of reports, and that's all we really know. Stay patient and the truth will eventually come free.

Now that Joe Amendola is out of the picture, each party has a good lawyer. And good lawyers are good at telling stories. The Freeh Report told a story. The Paterno Report tells a compelling story too. Once litigation starts, every pleading by the lawyers for parties involved will tell a story; overreacting to each new pleading doesn't accomplish anything.

Eventually we will have enough information to make informed judgments about Paterno's role in the story, whether it's for the worst or the not-all-that-bad. So just ignore the hype. Due process means litigation and trials take a while. The truth is out there. You just need to give it time.

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