Joe Paterno and the Law

With the news that he has hired a defense attorney, the disgraced coach may now face criminal and civil charges. What would that mean for him and Penn State?

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Having been routinely deified since the Johnson Administration, and realizing that the very first sentence of his obituary has been forever altered by the disclosures of the past week, it is perhaps as understandable as it is disheartening that Joe Paterno would still be mostly in the "denial" phase of processing what the ongoing sex assault scandal and subsequent cover-up mean for himself and his beloved Penn State University.

His comments over the past few days -- and especially his fawning attitude toward his myopic fans -- suggest a disoriented old man still clinging to the belief that much of this is something that is happening to him rather than something that is happening, in part, because of him. Yet for nine years Paterno knew this terrible secret. For nine years he preached responsibility to young people while failing to act responsibly about the alleged rape of children. For nine years he allowed Jerry Sandusky back onto campus and evidently near those children. For nine years. Can't you just hear the lawyers during closing argument in the trials yet to come?

Now may be the time for remorse and regret -- we've heard plenty of it already. But it's also time for JoePa to lawyer up, as it's now being reported he has. He was fired, presumably for cause, by the university that had employed him since 1950. He is still in clear jeopardy of criminal sanctions by state prosecutors. He has a huge blue-and-white bull's eye on his back for civil liability from the alleged victims of the assaults and their family members. His reputation is in tatters and his pension presumably is in jeopardy. It is the end of his life as he knew it -- just as it was, it must be said, for those poor young boys who were allegedly assaulted.

No matter what ends up happening from here, no matter how much hush money is paid or how many indictments are handed up, the winningest coach in major college football history is likely to spend the next few years, perhaps what's left of the rest of his life, in and out of courtrooms and lawyer's offices. There will be no Happy Valley students there to scream his name in adulation. There will be only smart lawyers with good questions demanding answers. For Joe Paterno, the reckoning is at hand.

The Criminal Law Angle

Michael McCann, at Sports Illustrated, has written an excellent summary of some of the legitimate legal questions raised by Paterno's behavior. Let's focus upon two of the main allegations. First, in 2002, when Paterno first became aware of an alleged rape of a young boy by Jerry Sandusky, there is a question about whether he fully communicated what he knew to his superiors. In addition, there are questions about whether Paterno told the "truth, the whole truth, and nothing but the truth" when he testified last year before a state grand jury about the 2002 episode. Here is the gravamen of McCann's piece:

According to the grand jury's findings of fact, [Penn State Assistant Coach Mike] McQueary detailed how in 2002 he saw a naked Sandusky sexually abusing a young boy in the showers in the Penn State football locker room. McQueary also testified that he told Paterno what he saw the following day, though it isn't clear from McQueary's testimony how explicit he was in his description to Paterno. After hearing from McQueary, Paterno alerted athletic director Tim Curley. Yet instead of relaying what McQueary claims to have told him, Paterno conveyed a milder and vaguer description. Specifically, Paterno testified under oath that McQueary had said that Sandusky was engaged in fondling or "doing something of a sexual nature" to a boy. (My emphasis)

Pennsylvania Attorney General Linda Kelly must resolve these and many other questions before making any final decisions about what to do with Paterno (and McQueary, who so far also has avoided charges). If McQueary saw Sandusky anally raping a 10-year-old boy in the shower did he tell Paterno exactly what he saw? If not, why not? And if so, why didn't Paterno communicate the precise nature of the allegation to Curley? Does McQueary's ambiguity save Paterno? Is Paterno's ambiguity actionable? Was Paterno covering up during his grand jury testimony for Sandusky? Was he throwing McQueary under the bus? And what happens now when the 84-year-old ex-coach tells the grand jury or the prosecutors: "I forget exactly what McQueary told me back in 2002"?

These unresolved questions tell us two things about the investigation to date. They tell us that the initial grand jury probe was not good enough -- too many of the most important questions evidently were either unasked or left vaguely answered by the witnesses. And they tell us that it is still way too early to gauge the full fallout from this mess. Can you build a legitimate perjury case, or a failure-to-report-abuse case, against a legend like Paterno by focusing upon the degree of description the coach used in communicating what he knew of the episode? Kelly, the attorney general, has to ask herself that question before she goes after the most popular Pennsylvanian since Benjamin Franklin.

Presented by

Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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