Wednesday, January 8, 2014

Freeh Report,NCAA and news media to go on trial in Paterno law suit.

One of the most egregious  and well documented cases of news media dishonesty, libel, cowardice and greed along with official misconduct by the NCAA and others, will finally go on trial in a court of law where facts and  rules of evidence, not media dishonesty,a mob mentality, distortions or ratings, web hits and newsstand sales at the expense of a man's reputation, will be the standard on which facts will be presented and judged.

On Tuesday a judge ruled that the Paterno family's law suit against the NCAA can continue. The issue had always been,  would the judge find that the Paterno's had standing to challenge the NCAA sanctions as they pertained to Joe Paterno.  The NCAA had asked for the suit to be dismissed on the grounds that the Paterno family didn't have standing. The judge ruled they did, and decided it on the basis of an evidentiary showing that libel was involved and that  one of the issues to be decided in court will be the NCAA's" reckless disregard" for "falsities" in the Freeh Report on which they based their decisions. 

The judge wrote:

"Plaintiffs ( the Paterno family) identified disparaging statements accusing Joe Paterno of enabling and concealing child sexual abuse and knowledge or reckless disregard for their falsity" (italics mine)

In other words, the judge was satisfied that there was a showing that those accusations in the Freeh Report at the heart of the attack on Paterno were in fact false and the issue will be the NCAA's knowledge of, or reckless disregard "with respect to their falsity".

This means that Louis Freeh, his dishonest report, the NCAA and by extension a slew of purported journalists and news organizations will also be on trial for their self serving  dishonest reporting attacking Joe Paterno, falsifying facts, and distorting his relationship to the issues surrounding Jerry Sandusky and Penn State.

If the court, after trial,  finds for the Paterno family against the NCAA which is a virtual certainty given the facts and the clear falsity of the Freeh Report,  it will also by extension be a "guilty" verdict against that cartel  of self serving,self promoting journalists and news organizations who falsified, distorted, misrepresented, ignored  and in many cases fabricated circumstances, facts and issues regarding Joe Paterno  simply to suit their own purposes which had more to do with capitalizing on the Paterno name and what that meant for ratings, newsstand sales and web hits than the truth. That is what mattered most, more than truth or facts and those journalists covering the story displayed the kind of rank dishonesty and incompetence,and even stupidity that generally infects the news media on a big story (Pew Research said it was the biggest story in the country for three straight weeks)  when their goal is not objective journalism but generating income and their own place in the food chain at the expense of both journalistic standards and a man's reputation.

Those journalists and media organizations will be on trial as well.

The dismantling of the Freeh Report on which the NCAA sanctions were based, is all the Paterno family lawyers need to do to win their suit against the NCAA, and by extension, the news media and the Penn State Board of Trustees. If the Paternos win their suit which is all but inevitable, those who attacked Paterno and accepted the Freeh Report will have a lot of explaining to do. Especially the current president of Penn State and the Board of Trustees who readily accepted the NCAA sanctions based on the Freeh Report which they themselves paid for and embraced.

The crux of the court case will be the Freeh Report itself, blindly embraced and trumpeted  by the news media to justify their attacks on Paterno even though simply a cursory reading of the report revealed it to be a complete fabrication, filled with false assertions,  fabrications, manipulation of evidence (something Freeh has a long and well documented history of doing at the FBI -- see Richard Jewel)  and intentionally false conclusions about Paterno unsupported by any proof or evidence.

Freeh also  intentionally excluded any evidence or proof that didn't support his predetermined intention which was to smear Paterno, (the motives for which have been documented here previously) which he also correctly calculated the news the media would use to justify their own self serving attacks.

The investigation was so dishonest, slanted and clearly designed to produce a predetermined outcome, that Freeh actually refused to interview Paterno when he was alive,  as part of the "investigation" when Paterno requested to be interviewed,and refused to interview Mike McQueary who also requested to be interviewed lest any of them put facts on the record that would interfere with his intended outcome. Freeh also made no attempt to interview Tim Curley or Gary Schultz to attempt to verify the facts behind  two vague emails Freeh used to make  unsupported  conclusions about Paterno even though proof existed that contradicted Freeh's assertions.

The Freeh Report had also been analyzed by former Attorney General Richard Thornburgh for those unable to add 2+2, and who concluded Freeh's  report was essentially worthless, an a dishonest peice of investigation filled with fabrications,  distortions and misrepresentations (again something Freeh had a well documented history of doing at the FBI) with no investigative or  factual value at all. The news media largely ignored Thornburgh's findings. It will be hard for them to ignore the outcome of the Paterno law suit which will force the Freeh Report and the NCAA into a court of law where rules of evidence and fact finding will be all that matters, not manipulation, fabrication and media misconduct.

The outcome of the law suit with a finding against the NCAA and in favor of the Paterno family  is a virtual certainty given the obvious falsity and investigative misconduct of the Freeh Report. And so the truth will be on the record.

It's not likely the Paterno family will agree to any out of court settlement since the motivation for the law suit is not money but the restoration of Joe Paterno's reputation.
And that will easily be done by dragging Louis Freeh and his report into a courtroom, examining it in the light of day where the rules of evidence apply, and proving it was a total fraud.  Along with the people who paid for it and those who blindly  accepted it.

Note: This peice has been edited for length from the original with additional material added.


Bill Levinson PSU B.S. '78 said...

Louis Freeh, aka Lying Louie, is a proven liar. He is toast in court and, when his credibility goes down, he will drag that of Penn State's Trustees (this is why the Board's power brokers have been intimidating the Trustees who joined the lawsuit) and the NCAA down with it. Here is conclusive evidence that Louis Freeh is a liar.

Freeh: "Mr. Paterno was on notice for at least 13 years that Sandusky, one of his longest serving assistants, and whose office was steps away, was a probable serial pedophile. Mr. Paterno was aware of the criminal 1998 investigation into Sandusky's suspected child sexual abuse. Indeed, the evidence shows that Mr. Paterno closely followed that case."

This is a flat-out falsehood because "13 years" takes us back (from 2012) to 1999, when the police, and Department of Public Welfare, exonerated Sandusky of the accusation in question. If we stipulate that Coach Paterno did follow the case, this is what he would known, along with the fact that Sandusky had passed a background check to be an adoptive father. It sounds like Mr. Freeh, to use his own words below, "purposefully ignored this evidence."

"Later, in 2001, another one of his assistants, Mr. McQueary, directly reported to Mr. Paterno that Sandusky was sexually abusing a young boy in Mr. Paterno's Penn State football locker room. The evidence shows that Mr. Paterno purposefully ignored this evidence."

Mr. Freeh knows fully well that Paterno did not "ignore the evidence;" he followed Penn State's existing procedures, as well as the law, by taking the matter to his superior. Mr. Freeh also knows, or ought to know, from McQueary's sworn court testimony that McQueary merely inferred that Sandusky was sexually abusing the boy, and did not actually see sexual contact. This means he did not tell Coach Paterno what Freeh says he did.

One wonders, in fact, whether this violates Bar Association rules for the practice of law, and I refer to item (c). I wonder if lying in public statements and press releases qualifies.
RULE 8.4.
A lawyer or law firm shall not:
(a) violate or attempt to violate the Rules of Professional Conduct,
knowingly assist or induce another to do so, or do so through the
acts of another;
(b) engage in illegal conduct that adversely reflects on the lawyer’s
honesty, trustworthiness or fitness as a lawyer;
(c) engage in conduct involving dishonesty, fraud, deceit or

Marc Rubin said...

"Freeh: "Mr. Paterno was on notice for at least 13 years that Sandusky, one of his longest serving assistants, and whose office was steps away, was a probable serial pedophile. Mr. Paterno was aware of the criminal 1998 investigation into Sandusky's suspected child sexual abuse. Indeed, the evidence shows that Mr. Paterno closely followed that case."

This statement alone is so provably and intentionally false its enough to send Freeh to the poor house if the Paterno family sues him personally for libel which hopefully they will after the NCAA suit is over.

It has been established beyond doubt that Paterno not only didnt follow the case closely he knew nothing about it. It would have been illegal for him know about the case since Pennsylvania law forbids anyone, even law enforcement personel who do not have a direct involvement with a child sexual abuse investigation from being privy to any aspect of the investigation. So even had Paterno wanted to know, (which he didnt) it would have been impossible for him to know unless a lot of people broke the law to inform him and notice Freeh produced any evidence that anyone did and never identified anyone who broke such a law including Penn State Campus police Captain Thomas Harmon who oversaw the investigation.

The 13 year claim is also interesting since as the link in my peice points out regarding Freeh's possible motives for putting the attention on Paterno, it is Freeh himself who either knew or should have known abour Sandusky and any investigation going back to 1998 since during Freeh's tenure as co chair and general counsel of MBNA bank, the bank was Sandusky's biggest corporate sponsor. If anyone outside normal channels would have known about the Sandusky investigation in 1998 and any allegations through 2007 it would have been Freeh himself. He left MBNA bank in 2007. Another inconvenient fact that exepmplified news media ignorance.

Linda Berkland said...

I would love nothing more than for the Paternos to sue Freeh; they most certainly have a case. Is there a statute of limitations issue? Pennsylvania has a 1 year limit to bring cases with regard to defamation or libel, I believe, which is why Graham Spanier filed a notice of his intent to sue before the 1 year anniversary of the release of the Freeh report.

Marc Rubin said...

"Is there a statute of limitations issue? Pennsylvania has a 1 year limit to bring cases with regard to defamation or libel"

The Paterno family lawyers would be aware of any statute of limitations with regards to libel if they intended to sue Freeh but a judge just heard arguments this past Tues (Jan.7) on Spanier's request to delay his suit and this is a year and a half after Freeh issued his report in July 2012 so I dont think the statute of limitiations is one year.

Anonymous said...

It goes by when the suit is initially filed not when its ruled on

Anonymous said...

Remember that the Freeh agreement with Penn State contains this paragraph:
"Moreover, in connection with any investigation, civil or criminal action, administrative proceeding or any other action arising out of this matter, the Trustees have agreed to indemnify FSS, it's (sic) partners, employees, agents and third-party vendors who have provided or are providing services in connection with this engagement, for all costs, expenses, attorney's fees (to be paid as accured (sic) and billed) and judgements (sic), including any amounts paid in settlement of any claims. This obligation shall survive the termination of this engagement."

Poor spelling aside, I read this to mean that Penn State has to pay Freeh for any time spent defending the report and cover any judgments that may be made against him. Thus, suing Freeh is the same as suing Penn State and would not hurt Freeh financially at all (except, hopefully, future work).

Jim Fike said...

The article and comments above are well thought out and accurate as to how the facts would come out if it's pursued thoroughly thru the PA Courts. My fear is that somehow and or another the case will be dismissed, ignored, and or somehow minimized and I'd like to see various individuals arrested and serve prison time. That includes Louis Freeh, Cynthia Baldwin, Mark Emmert, Rodney Erickson, Ken Frazier, John Surma and others such as Dr. Suhey outed for the fraud of his character. Others include those at DPW, Children & Families case workers, State Policeman handling the 98' matter as well as the Central Mountain High School Principal & Guidance Counselor.
As much as I have non positive feelings about Graham Spanier's tenure at PSU, it's unrelated to the Sandusky scandal and I think he'll be found innocent of the charges against him. However, his allowing tuition to rise 200% from 1995 thru 2011 is inexcusable as was his arrogance and condescending attitude toward the PA State Legislature when questions by State Reps. about the Sex Affair & Cunt Fest events that were allowed and or condoned by Spanier. Tim Curley Gary Schultz, Joe Paterno will be found to be 100% innocent of all charges.
However, the really sad part in all this is even when the final verdict comes down announcing their innocence, it's way too late after the fact and the indivduals and PSU has been harmed beyond what can be put into words. Curley, Schultz will be forever tarnished and never will be able to get their good name back. That in itself should cost Louis Freeh a cool $20 Million dollars personally out of his own funds for starters just to pay Spanier, Curley, Schultz and the Paterno family.
It will be an absolute joy to watch the MSM, ESPN, Patriot News, etc. as they have to report the trial verdicts and then pretend they played no part in the scandal.

Call me Ishmael said...

This was a preliminary hearing and not a finding of fact. As Judge Leete wrote in his decision, "A claim should only be dismissed on preliminary objections when it is free and clear from doubt that the pleader will not be able to prove facts sufficient to establish a right to relief." Moreover, in making this determination, the judge used Bower vs. Bower to assume that the facts admitted in the complaint are, in fact, true. Given that legal standard, the Judge denied the preliminary motion to dismiss and ruled that the case can move forward for two specific statements.

The way that you present it here, implying that Judge Leete ruled in favor of the plaintiffs, or agreed with their claims is wrong.

Marc Rubin said...

"..The way that you present it here, implying that Judge Leete ruled in favor of the plaintiffs, or agreed with their claims is wrong.:

To keep the record straight I implied no such thing. The hearing was NOT preliminary. It was a hearing to decide arguments on whether there was legal grounds for the case to go forward. The judge rules there was and based it on issues involving defamation. The judge's own words were clear regarding that issue and if he had felt there was no case to be made for defamation the suit would not have been allowed to go forward. It is clear the judge felt there was enough of a showing by the plaintiff, the Paterno family, that there was a case of defamation. Since it is the NCAA being sued, the issue is going to be are they accountable, and to what degree are they accountable for their sanctions against Joe Paterno based on, in the judge's words, " the falsity" of the conclusions in the Freeh report as they pertained to Paterno.

Marc Rubin said...

"My fear is that somehow and or another the case will be dismissed"...

The ruling by the judge on Tuesday related to that very issue and the case,the judge ruled against the NCAA who tried to get it dismissed. It will not be dismissed and the judge ruled it will go forward.

Marc Rubin said...

" I read this to mean that Penn State has to pay Freeh for any time spent defending the report and cover any judgments that may be made against him".

This may be true. If so, Im sure there will be alumni also suing Penn State for gross negligence both in agreeing to this and holding them responsible any damages the university has to pay because of Freeh's defamatory and dishonest report. On the other hand I wouldnt be surprised in that event for Penn State to sue Freeh if they can prove his negligence and defamation of Paterno was intentional. Defemation by definition requires intention. So they can have an agreement with Freeh but if they can show Freeh was a negligent and dishonest contractor who didnt fulfill his basic obligation of an honest investigation, that indemnification will be thrown out the window by a judge.

Bill Levinson PSU B.S. '78 said... for the Second Mile Annual Report that reveals the likely conflict of interest between Louis Freeh (via Bank of America) and The Second Mile. Second Mile removed it from its own Web site, but is great for these situations.

Richard Struthers was a Director, as shown on the last page.

Bill Levinson PSU B.S. '78 said...

Jim Fike, if we want to hold Baldwin and Freeh accountable, we can report their alleged conduct to their state Bar Associations, e.g. the Office of Disciplinary Counsel in PA for Baldwin, and those in NY, NJ, and DC for Lying Louie.

There may be grounds for doing this. The PA Code says an attorney is not supposed to allow a misunderstanding as to whether she represents somebody (e.g. Graham Spanier). Dishonesty, as practiced by Lying Louie, may constitute misconduct by itself.

Call me Ishmael said...

The point being that it was not a big hurdle to clear. Judge Leete had to assume that the arguments being made by the complainant are true, which they may or may not be. The Judge is simply saying that 2 of the 5 statements are statements of fact targeted toward the defendants, which, if what the plaintiff claims is true, constitutes defamation. It's not a big hurdle to clear, really. In the Opinion and Order, Judge Leete states that "before the court are preliminary objections filed by [the NCAA et al]" hence you can understand my confusion.

Call me Ishmael said...

And to by clear, the case can and may still be dismissed at any point leading up to and even during the trial; it cannot be dismissed on a preliminary motion.

Marc Rubin said...

"The point being that it was not a big hurdle to clear. Judge Leete had to assume that the arguments being made by the complainant are true, which they may or may not be."

It is true that at this stage the judge is a not a finder of fact. But keep in mind the suit is against the NCAA not Freeh. As the judge pointed out, in most cases there would not be enough for the suit to go forward because of the consent decree. The exception is in cases of defamation which exempts Paterno from being bound by the consent decree. The judge found enough grounds that the defamatory statements were false to allow the suit to continue. The issue is going to be, was the NCAA reckless and did they "show a reckless disregard for their falsity" (not WERE they false in the first place - the judge seems to accept they were based on the showing of the Paterno family lawyers) in issuing sanctions against Paterno based on the falsities in the Freeh Report. If this was a straight libel or defamation suit the judge probably would not have made such a ruling. However the issues of the case are going to center on the NCAA sanctions against Paterno which they based on false statements that the NCAA should have known were false, or would have had they investigated themselves. "The reckless disregard" aspect is almost certainly going to play into monetary damages. So the issue is not going to be the falsity of the statements themselves -- that is almost a given and the NCAA can't defend those statements in the Freeh Report because no evidence exists to prove them -- which is why its defamation and a certainty the Paterno's will win their suit, the sanctions against Paterno will be lifted, his wins (and reputation) restored and the rest will be about how much the NCAA is going to have to pay.

Call me Ishmael said...

Well, again, as posted earlier -- the Judge was required under the demurrer rules to presume that the plaintiff's allegations are true. That is, when the plaintiff alleges that defendant made the statements knowing they were false it constituted malice. This is why the ruling repeatedly refers to "these allegations are sufficient to support" the element of malice, for example. What the Judge is NOT saying is that the defendant's statements were false or even probably false. He is saying that the allegations are sufficient to support a claim of defamation, and for that reason cannot be dismissed by preliminary objection. In this case, the law does not say with certainty that no recovery is possible for the plaintiffs.

Other that, I agree with everything that you wrote. The plaintiffs will not only need to demonstrate that the statements were false, but that they were made intentionally, knowing that making the statements would damage the financial or reputational standing of the plaintiffs.

I wish the plaintiffs, well, but it is a long far road and the defendants clearly have the upper hand here.

Tim Berton said...

The Paterno family goal is to find the truth so they don't have to win the lawsuit to accomplish their goal.

Demolishing Freeh, Emmert and others on the witness stand may be more than enough for the Paternos to find the truth.

Tim Berton said...

Freeh is not a defendant in the Paterno family lawsuit so he would not have to pay damages even if the Paternos win.

Freeh is just a key witness because the NCAA relied on his report rather than doing their own investigation.

If PSU indemnified Freeh, PSU may have to pay for any legal costs Freeh incurs because of the Paterno lawsuit. It depends on the language in the contract.

Spanier has a separate defamation suit against Freeh.

Marc Rubin said...

"The Paterno family goal is to find the truth so they don't have to win the lawsuit to accomplish their goal."

The Paterno family goal is to overturn the NCAA sanctions as they perain to Paterno and get all the victories over a ten year span that the NCAA vacated for absoultely no valid reason, overturned and in the process of restoring Paterno's victories and standing, restore his reputation.
The Paterno's DO have to win their suit against the NCAA to overturn the sanctions but it is a virtual certainty that they will since the sanctions were based solely on the findings of the Freeh Report and those findings, as everyone who read the report knows, were completely bogus and there will not be the slightest problem in proving that in court. Which as a by product will stain Freeh's reputation forever as well as Mark Emerick, journalists, Rodney Erickson,the Board of Trustees and and anyone else who believed it and accepted it

Tim Berton said...

Winning defamation suits is very difficult as Call me Ishmael explained. I agree that what the NCAA and Freeh said about Paterno was not at all supported by the evidence but a celebrity has to prove malice to win in defamation suits. Malice is hard to prove when the defense is they just made mistakes. Freeh has a string of sloppy, inaccurate reports to prove he makes a lot of mistakes. The NCAA also has a track record of mistakes.

I still think that getting Emmert and Freeh to admit under oath that their accusations were false and lacked supporting evidence would be finding the truth. The Paternos might also win if the NCAA settles, as they did in the Jerry Tarkanian lawsuit when it became clear the NCAA would likely lose in court.

The judge's ruling was that the sanctions are out unless Penn State becomes a party to the lawsuit. I don't see that happening. Overturning the sanctions would be still be in play as part of a settlement however.

Marc Rubin said...

"Winning defamation suits is very difficult as Call me Ishmael explained."

I can understand why it might be a little confusing but the Paterno suit against the NCAA is NOT a defamation suit. The NCAA tried to get the suit dismissed on the grounds that Paterno as an employee was bound by the consent decree signed by Rodney Erickson accepting the sanctions against Penn State which included that sanctions against Paterno. The judge said that in MOST cases, that would apply and in MOST cases the Paterno family couldnt sue. The law makes an EXCEPTION to that when defamation is involved and the judge was satisfied that the Paterno family lawyers made a sufficeint showing as to "falsities" regarding Paterno in the Freeh Report which was the entire basis for the NCAA sanctions against Paterno.

It is the showing of defamation that makes Paterno not bound by the consent decree.

By the way, in a November 2011 article I wrote here ( you can google it in the search box on this site) titled "Why Paterno Should Sue for Libel" i pointed out flat out libelous statements written by Sean Gregory in Time Magazine regarding Paterno. The standard for libel is, did the person know what they were claiming was untrue, and did they know that the untrue statements would cause damage to the person's reputation. Time Warner lawyers must have agreed with me because the libelous sentences in Gregory' online article were eliminated shortly after. Its not that hard to prove libel IF it IS libel. But again the NCAA suit is not about defamation - it is about whether the NCAA acted with a "reckless disregard" for the falsities in the Freeh Report about Paterno that rise to the level of defamation. I think its a virtual certainty the Paterno's win that case. And proving the defamatory statements in the Freeh Report on which the NCAA acted will be easy.

A bit long winded of an explanation but again, its not a defamation suit against the NCAA -- its a suit against them to undo their sanctions based on their recklessly acting on the falsities in the Freeh Report that are provably defamtory and thus untrue.

Tim Berton said...

Under PA law it looks like all the current plaintiffs would be public figures requiring the plaintiffs to show malice to win in court. How do the Paternos prove the NCAA acted with malice? Maybe they have proof or can find it. I don't know.

The NCAA could say they trusted the veracity of the information provided by Penn State via their agent Freeh, and put the blame on Penn State and Freeh. That might be considered a defense under the Fair Report Privilege.

I still think the Paternos best bet is a settlement or damaging admissions by the NCAA in court where they admit they now realize the accusations against Paterno were false.

The NCAA might still stand firm and still prevail in court even if they admit the sanctions against Paterno were wrong. It would then be up to NCAA members and the media to pressure the NCAA into restoring the wins.

Marc Rubin said...

"The NCAA could say they trusted the veracity of the information provided by Penn State via their agent Freeh.."

They could say it but they would fail. First, Freeh wasnt their agent they were Penn State's agent. Second, the judge's term " reckeless disregard for the falsities" in the report is accepting the showing by the Paterno lawyers that the report was false. It is now going to be up to the NCAA to defend why they didnt either conduct their own investigation which is what they were supposed to do ( see the problems the NCAA had with the Miami Hurricane investigation) or why they didnt MAKE SURE that the Freeh Report was accurate.

Call Me Ishamel tried to make the point that he didnt think a judge would making a finding of defamation before there was a trial because judge's dont do that. That's incorrect. Judges do it all the time. They do it when they have to decide upon granting bail. And they do it when a petitoner files for an injunction against a law or other action from going into effect until an appeal can be heard. The ONLY time a judge grants an injunction is when the judge, after looking at the facts, rules that the petioner will probably succeed in their appeal and grants the injunction so that the party will not be harmed while waiting for the appellate ruling.

The judge here has looked at facts and determined that the suit can go forward based on a finding that there was enough of showing that the Freeh Report as it pertained to Paterno was false and defamatory and the NCAA will have to show why they were not reckless and did not show a reckless disregard for the Freeh Report's falsities in sanctioning Paterno.
They cant win. Though they can try. The other aspect of the trial is going to determine damages which will include the NCAA reversing the sanctions and probably monetary damages. By the way, its past the point where the NCAA can now admit they wrong and if they do, they have no choice but to reverse the sanctions. But the only way their admission will be mean anything is if they try and settle out of court and the Paterno family has no obligation to accept. I would think any settlement would include the NCAA basically getting on its knees and begging forgiveness, admitting they were abject idiots, acknowledging that Freeh's report was false regarding Paterno, that they made a terrible mistake and any other way the Paterno family wants to publicly flog them.