Joe Paterno and the Law

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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.

Over the past few days, most of the questions I have received about the scandal have focused upon what people perceive as disparate treatment between the main actors involved. Why did Curley get charged and not Paterno? Why has McQueary avoided charges? But comparing the legal status of the men right now is like comparing apples and oranges. It's simply too early. Each was in a different position in the University's hierarchy at the time, each accordingly had different legal responsibilities and liabilities, and each appears to have described the 2002 episode differently. Will Paterno cut a deal with prosecutors? Will McQueary? Is there even a deal to be cut at this point? It's tough being patient amid the storm but these questions won't linger unanswered for long.  

The Civil Law Angle

When Penn State fired Paterno Wednesday night the Board of Trustees was doing more than routine damage control. The University was beginning to try to insulate itself from the civil lawsuits that are likely to flow from the scandal. Penn State wants to be able someday to tell a judge or a jury that it acted boldly and decisively when the full scope of the scandal become known; that the aims of the University diverged from the aims of the men at the center of the scandal. I don't know that jurors are going to buy the argument -- in my view, the University should immediately have fired all of these people in 2002 when the internal disclosures first were made. But from Penn State's perspective you've got to start somewhere.

If and when the civil lawsuits come -- for negligence, for example -- Penn State will have to answer many questions that appear today to be obvious. For Paterno, the question is simple: even if he wasn't willing to turn his old friend in to the police, why didn't Paterno block Sandusky from continued access to the facilities? Why didn't he raise hell about what he had heard until the University did something about it? Making an ambiguous report to a superior, and then doing nothing, hardly seems like a reasonable standard of care. You would agree, wouldn't you, if it were your kid in that shower?

Paterno and the rest of the officials involved here may decide one day to exercise their rights to remain silent under the 5th Amendment. But that only applies in criminal cases. If Penn State and Paterno are sued in a civil case for money damages all of the relevant actors will be required to answer questions in sworn depositions and then later at trial. This means that even if Kelly's criminal probe doesn't ultimately unearth satisfactory answers to some of the questions we all have about what happened the civil litigation may help shed some light on the scandal. And if Paterno thinks that reporters have been asking tough questions lately, just wait until he gets into a conference room with the lawyers for one or more of the plaintiffs.

Whether it is in a criminal case or a civil one, we all know where the defense will begin -- by blaming Sandusky. But that argument will go only so far in a civil case. Will the Penn State officials implicated here accept their own measure of responsibility or will they start pointing fingers at one another? What if McQueary now testifies that he told Paterno in graphic detail about the anal rape that he, McQueary, allegedly saw? That would help transfer McQueary's burden to Paterno, wouldn't it? You think things look bad now? Wait until then. And, not for nothing, what in the world is Penn State doing allow McQueary to go anywhere near the field Saturday for the game against Nebraska? I can hear a plaintiff's lawyer now, in court, saying to a jury: "And still Penn State didn't get it ..."

Can the University buy its way out of a mind-bending public trial? Or will the plaintiffs, if they sue, seek some sort of public accounting? And how will jurors react to Paterno's likely defense -- that he followed the letter of the law by reporting the incident to his superiors and that he owed no further duty. Pennsylvanians have built Paterno into a living god over the generations; now they will asked to believe that Paterno was right to act like a file clerk. Straight out of mythology, which is so much a part of this story, the great man's own reputation may ultimately prove to be his undoing.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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