Confidential Internal Review At PSU Shreds Louis Freeh Report

By Ralph Cipriano
for BigTrial.net

A confidential internal review of the Louis Freeh Report on the Penn State sex abuse scandal, conducted by the university's own trustees, found factual mistakes, "deeply flawed" methodology, and faulty  opinions that Freeh's own staffers took issue with, in writing.

The trustees also accused Freeh of having a conflict of interest in his dealings with the NCAA.

It was the Freeh Report that the NCAA relied upon in 2012 to impose draconian sanctions on Penn State, including a $60 million fine, a bowl game ban that lasted two years,  the loss of 170 athletic scholarships and the elimination of 111 of Joe Paterno's wins, although the wins were subsequently restored.

On Friday, a group of 11 trustees called on the full 38-member board to release the full 200-page critique of the 267-page Freeh Report, formally renounce Freeh's findings, and try to recoup some of the $8.3 million that the university paid Freeh.

"I want to put the document in your hands so you can read it yourself, but I can't do that today," said Alice Pope, a trustee and St. John's University professor about the internal review of the source materials for the Freeh report.

But the materials that Pope and six other trustees had to sue the university to obtain are still under seal according to a 2015 court order. And the university's lawyers have recently advised the 11 minority trustees that the report they worked on for more than two years remains privileged and confidential, and out of reach of the public.

 So yesterday, Pope called on the full board to release the 200-page report as early as their next meeting, on July 20th. But chances are slim and none that the board's chairman, Mark Dambly, and other majority board members will ever willingly open Pandora's box. They don't want to reveal to the public the facts that the university has spent millions of dollars in legal fees to keep buried for the past six years. Facts that will present further evidence of just how badly the trustees, Louie Freeh, and the attorney general's office thoroughly botched the Penn State investigation in a rush to judgment. Not to mention the media.

The full board of trustees, Pope noted yesterday, never voted to formally adopt the findings of the Freeh Report, which found that Penn State officials had covered up the sex crimes of Jerry Sandusky.

"Rather, the board adopted a don't act, don't look and don't tell policy" Pope said that amounted to a "tacit acceptance of the Freeh Report." A report that Pope said has resulted in "profound reputational harm to our university along with $300 million in costs so far."

In addition to the $60 million in fines, the university's board of trustees has -- while doing little or no investigating -- paid out a minimum of $118 million to 36 alleged victims of sex abuse, in addition to spending more than $80 million in legal fees, and $50 million to institute new reforms aimed at preventing future abuse.

That internal 200-page report and the materials it draws upon may still be privileged and confidential. But Big Trial has obtained a seven-page "Executive Summary of Findings" of that internal review dated Jan. 8, 2017, plus an attached 25-page synopsis of evidence gleaned from those confidential files still under court seal.

According to the executive summary, "Louis Freeh and his team disregarded the preponderance of the evidence" in concluding there was a cover up at Penn State of Jerry Sandusky's crimes.

There's more: "Louis Freeh and his team knowingly provided a false conclusion in stating that the alleged coverup was motivated by a desire to protect the football program and a false culture that overvalued football and athletics," the executive summary states.

In the executive summary, the trustees faulted Freeh and his investigators for their "willingness . . . to be led by media narratives," as well as "an over reliance on unreliable sources," such as former Penn State Counsel Cynthia Baldwin.

Freeh, the executive summary states, also relied on "deeply flawed" procedures for interviewing witnesses. The interviews conducted by Freeh's investigators weren't done under oath, or subpoenas, and they weren't tape-recorded, the executive summary states. Those faulty methods led to "biased reporting of interview data" and "inaccurate summaries" of witness testimony.

At yesterday's press conference, Pope said the 11 trustees wanted to know the degree of cooperation Freeh's team had with the NCAA and the state attorney general's office during their investigations. According to statecollege.com, state Senate Majority Leader Jake Corman has previously stated that the coordination between Freeh and the NCAA during the Penn State investigation was at best inappropriate, and at worst "two parties working together to get a predetermined outcome."

In the executive summary, the trustees cited "interference in Louis Freeh's investigation by the Pennsylvania Office of Attorney General, wherein information gathered in the criminal investigations of Penn State officials was improperly (and perhaps illegally) shared with Louis Freeh and his team."

This is a subject Big Trial will explore in a subsequent blog post. But earlier this year, I wrote to Louis Freeh, and asked if he and his team was authorized to have access to grand jury secrets in Pennsylvania. He declined comment.

At yesterday's board meeting, Pope addressed this topic, saying, "additional information has emerged in the public domain indicates cooperation between the PA Office of Attorney General and Freeh. We believed it was important to understand the degree of cooperation between the Freeh investigation and the Office of Attorney General."

Yesterday, Freeh issued a statement that ripped the minority trustees. "Since 2015," he wrote, "these misguided alumni have been fighting a rear-guard action to turn the clocks back and to resist the positive changes which the PSU students and faculty have fully embraced." He concluded that despite consistent criticism of his report by the minority trustees, in the last six years, they have produced "no report, no facts, news and no credible evidence" that have damaged the credibility of his investigation.

But in the executive summary, the trustees blasted Freeh for having an alleged conflict of interest with the NCAA, and they cited some credible evidence to prove it.

"Louis Freeh's conflict of interest in pursuing future investigative assignments with the NCAA during his contracted period of working for Penn State," the executive summary states, "provided motivation for forming conclusions consistent with the NCAA's goals to enhance their own reputation by being tough on Penn State."

In a criminal manner, such as the Jerry Sandusky pedophilia investigation, the NCAA lacked legal standing. But the NCAA justified its intervention in the case by finding that a lack of institutional control on the part of Penn State enabled the Jerry Sandusky sex scandal.

In their synopsis of evidence, the trustees relied on internal Freeh Group emails that showed that while Freeh was finishing up his investigation of Penn State, he was angling for his group to become the "go to investigators" for the NCAA.

On July 7, 2012, a week before the release of the Freeh Report on Penn State, Omar McNeill, a senior investigator for Freeh, wrote to Freeh and a partner of Freeh's. "This has opened up an opportunity to have the dialogue with [NCAA President Mark] Emmert about possibly being the go to internal investigator for the NCAA," McNeill wrote. "It appears we have Emmert's attention now."

In response, Freeh wrote back, "Let's try to meet with him and make a deal -- a very good cost contract to be the NCAA's 'go to investigators' -- we can even craft a big discounted rate given the unique importance of such a client. Most likely he will agree to a meeting -- if he does not ask for one first."

A spokesman for Freeh did not respond to a request for comment.

At yesterday's board meeting, Pope said the "NCAA knew that their own rules prevented them from punishing Penn State," but that the "NCAA decided to punish Penn State anyway in order to enhance its own reputation." She added that documents made public to date show that the "NCAA was closely involved with the Freeh investigation."

"We believed it was important to understand the degree of cooperation between the Freeh investigation and the NCAA."

At yesterday's press conference, Pope also raised the issue of a separate but concurrent federal investigation conducted on the Penn State campus in 2012 by Special Agent John Snedden. The federal investigation, made public last year, but completely ignored by the mainstream media, reached the opposite conclusion that Freeh and the attorney general did, that there was no official cover up at Penn State.

Pope stated she wanted to know more about the discrepancies between the parallel investigations that led to polar opposite conclusions.

Back in 2012, Snedden, a former NCIS special agent working as a special agent for the Federal Investigative Services [FIS], was assigned to determine whether Spanier deserved to have a high-level national security clearance renewed. During his investigation, Snedden placed Spanier under oath and questioned him for eight hours. Snedden also interviewed many other witnesses on the Penn State campus, including Cynthia Baldwin, who told him that Spanier was a "man of integrity."

About six months after Baldwin told Snedden this, she flipped, and appeared in a secret grand jury proceeding to not only testify against Spanier, but also against former Penn State Athletic Director Tim Curley, and former Penn State Vice President Gary Schultz.

Baldwin, who had previously represented Spanier, Curley and Schultz before the grand jury, testified  last month before the disciplinary board of the state Supreme Court, where she has been brought up on misconduct charges for allegedly violating the attorney-client privilege.

After his investigation, Special Agent Snedden concluded in a 110-page report that Spanier had done nothing wrong, and that there was no coverup at Penn State.

That's because, according to Snedden, Mike McQueary, the alleged whistleblower in the case, was an unreliable witness who told many different conflicting stories about an alleged incident in the Penn State showers where McQueary saw Jerry Sandusky with a naked 10-year-old boy. "Which story do you believe?" Snedden told Big Trial last year.

In his grand jury testimony, McQueary said his observations of Sandusky were based on one or two "glances" in the shower that lasted only "one or two seconds," glances relating to an incident at least eight years previous. But in the hands of the attorney general's fiction writers, those glances of "one or two seconds" became an anal rape of a child, as conclusively witnessed by McQueary.

That, my friends, is what we call prosecutorial misconduct of the intentional kind, the kind that springs convicted murderers out of a Death Row jail cell. And it's a scandal that for six years, the attorney general's office has refused to address, a scandal that the mainstream media has failed to hold the AG accountable for.

On March 1, 2002, according to the 2011 grand jury presentment, [McQueary] walked into the locker room in the Lasch Building at State College and heard “rhythmic, slapping sounds.” Glancing into a mirror, he “looked into the shower . . . [and] saw a naked boy, Victim No. 2, whose age he estimated to be 10 years old, with his hands up against the wall, being subjected to anal intercourse by a naked Jerry Sandusky.”

"The graduate assistant went to his office and called his father, reporting to him what he had seen. The graduate assistant and his father decided that the graduate assistant had to promptly report what he had seen to Coach Joe Paterno . . . The next morning, a Saturday, the graduate assistant telephoned Paterno and went to Paterno's home, where he reported what he had seen."

But the alleged victim of the shower rape has never came forward, despite an avalanche of publicity, and, according to the prosecutors, his identity was known "only to God." But McQueary knew the prosecutors weren't telling the truth. Days, after the presentment, McQueary wrote in an email to the attorney general's office that they had "slightly twisted his words" and, "I cannot say 1000 percent sure that it was sodomy. I did not see insertion."

On top of that, all the witnesses that the grand jury presentment claimed that McQueary had reported to them "what he had seen," the alleged anal rape of a 10-year-old boy [plus another witness cited by McQueary, a doctor who was a longtime family friend] have all repeatedly denied in court that McQueary ever told them that he witnessed an anal rape. 

 "I've never had a rape case successfully prosecuted based only on sounds, and without credible victims and witnesses," Snedden told Big Trial. As for the Freeh Report, Snedden described it as "an embarrassment to law enforcement."

Snedden also told Big Trial that the real cause behind the Penn State scandal was "a political hit job" engineered by former attorney general and Gov. Tom Corbett, who had it in for Spanier, after they feuded over drastic budget cuts proposed by the governor at Penn State. Corbett has previously denied the charges.

At the same time Snedden was investigating Penn State, former FBI Director Louis Freeh was writing his report on the Penn State scandal, a report commissioned by the university, at a staggering cost of $8.3 million. 

Freeh concluded that there had been a cover up. His report found a “striking lack of empathy for child abuse victims by the most senior leaders of the university,” which included Spanier, who had repeatedly been severely beaten by his father as a child, requiring several operations as an adult. Freeh also found that Spanier, Paterno, along with Schultz, the former Penn State vice president and Curley, the school’s ex-athletic director, “repeatedly concealed critical facts relating to Sandusky’s child abuse from the authorities.” 

But critics such as the minority trustees have noted that the ex-FBI director reached his sweeping conclusions without his investigators ever talking to Paterno, Schultz, Curley, McQueary or Sandusky. Freeh only talked to Spanier briefly, at the end of his investigation. And confidential records viewed by the trustees show that Freeh’s own people disagreed with his conclusions. 

According to those records, Freeh's own staff reviewed a May 21, 2012 draft of the Freeh Report, which was subsequently turned over to Penn State officials. The lead paragraph of the draft said, “At the time of the alleged sexual assaults by Jerry Sandusky, there was a culture and environment in the Penn State Athletic Department that led staff members to fail to identify or act on observed inappropriate conduct by Sandusky.”

The draft report talked about an environment of fear that affected even a janitor who supposedly saw Sandusky assaulting a boy in the showers in 2002: “There existed an environment within the athletic department that led an employee to determine that the perceived threat of losing his job outweighed the necessity of reporting the violent crime of a child.”

Over that paragraph in the draft report, a handwritten note said, “NO EVIDENCE AT ALL!” Freeh, however, in his final version of his report, included that charge about the janitor who allegedly saw Sandusky assault another boy in the showers but was so fearful he didn’t report it. 

But when the state police interviewed that janitor, Jim Calhoun, he stated three times that it wasn’t Sandusky he had seen sexually abusing a boy. [The state police didn’t ask Calhoun who was the alleged assailant.] At Sandusky’s trial, however, the jury convicted the ex-coach of that crime, in part because his defense lawyer never told the jury about the janitor’s interview with the state police.

In a written statement, Freeh confirmed that the person who wrote “NO EVIDENCE AT ALL!” was one of his guys.

"Throughout the review at the Pennsylvania State University, members of the Freeh team were encouraged to speak freely and to challenge any factual assertions that they believed are not supported," Freeh wrote on Jan. 10, 2018.

"Indeed the factual assertions of the report were tested and vetted over a period of many months and, as new evidence was uncovered, some of the factual assertions and conclusions evolved," he wrote. "Our staff debated, refined and reformed our views even in the final hours before the report's release."

In another handwritten note on the draft of the report, somebody wrote that there was "no evidence" to support Freeh's contention that a flawed football culture was to blame for the Sandusky sex scandal.

"Freeh knew the evidence did not support this," the executive summary says. But in his final report, Freeh wrote about "A culture of reverence for the football program that is ingrained at all levels of the campus community."

While Freeh concluded there was a coverup at Penn State, his investigators weren’t so sure, according to records cited by the trustees in their executive summary.

On March 7, 2012, in a conference call, Kathleen McChesney, a former FBI agent who was one of Freeh’s senior investigators, noted that they had found “no smoking gun to indicate [a] cover-up.”

In a written statement to this reporter, Freeh claimed that shortly after McChesney made that observation, his investigators found “the critical ‘smoking gun’ evidence” in a 2001 “email trove among Schultz, Curley and Spanier.” 

In that email chain, conducted over Penn State’s own computer system, the administrators discussed confronting Sandusky about his habit of showering with children at Penn State facilities, and telling him to stop, rather than report him to officials at The Second Mile, as well as the state Department of Public Welfare.

 In the email chain, Curley described the strategy as a “more humane approach” that included an offer to provide Sandusky with counseling. Spanier agreed, but wrote, “The only downside for us if the message isn’t ‘heard’ and acted upon [by Sandusky] and we then become vulnerable for not having reported it.”

Curley subsequently told Sandusky to stop bringing children into Penn State facilities, and informed officials at The Second Mile about the 2002 shower incident witnessed by McQueary, an incident that the prosecutors subsequently decided really happened in 2001. But Penn State didn’t inform the state Department of Public Welfare about Sandusky, which Freeh claimed was the smoking gun.

By definition, however, a cover-up needs a crime to hide. And Penn State’s administrators have repeatedly testified that when McQueary told them about the 2001 or 2002 shower incident, he described it as horseplay.

Also, an earlier 1998 shower incident involving Sandusky and another boy, referred to by Freeh, was also investigated by multiple authorities, who found no crime, nor any evidence of sex abuse.

Freeh, however, claimed that a trio of college administrators should have caught an alleged serial pedophile who, in that 1998 shower incident, had already been cleared by the Penn State police, the Centre County District Attorney, as well as a psychologist and an investigator from Centre County’s Department of Children and Youth Services. To buy into the conclusions of the Freeh Report, you’d also have to believe that Penn State’s top officials were dumb enough to plot a cover up on the university’s own computers.

In their executive report, the trustees refer to the allegations of a cover up as "unfounded." Freeh, however, maintained that in the six years since he issued his report, its findings have been repeatedly validated in court.

"The Freeh team's investigative interviews and fact-finding were not biased and no outcome was ever predetermined," Freeh wrote. "Their only mandate, to which they adhered, was to follow the evidenced wherever it led. The final report I issued is a reflection of this mandate."

"The accuracy and sustainability of the report is further evidenced by the criminal convictions of Spanier, Schultz, Curley," Freeh wrote. Other developments that verified the conclusions of his report, Freeh wrote, include "voluntary dismissals by the Paterno Family of their suit against the NCAA, Spanier's dismissal of his defamation suit against Freeh, the jury and court findings in the McQueary defamation and whistleblower cases, and the U.S. Department of Education's five-year investigation resulting in a record fine against Penn State."

At yesterday's board of trustees meeting, however, trustee Pope, cited public criticisms of the Freeh Report that included:

-- "On a foundation of scant evidence, the [Freeh] report adds layers of conjecture and supposition to create a portrait of fault, complicity and malfeasance that could well be at odds with the truth . . . [As] scientists and scholars, we can say with conviction that the Freeh Report fails on hits own merits as the indictment of the university that some have taken it to be. Evidence that would compel such an indictment is simply not there." -- A group of 30 past chairs of the Penn State faculty.

-- "The Freeh Report was not useful and created an 'absurd' and 'unwarranted' portrait of the University. There's no doubt in my mind, Freeh steered everything as if he were a prosecutor trying to convince a court to take the case." -- Penn State President Eric Barron.

-- "On Nov. 9th, 2011, I and my fellow Trustees, voted to fire Joe Paterno in a hastily called meeting. We had little advance notice or opportunity to discuss and consider the complex issues we faced. After 61 years of exemplary service, Coach Paterno was given no chance to respond. That was a mistake. I will always regret that my name is attached to that rush to injustice."

"Hiring Louis Freeh and the tacit acceptance of his questionable conclusions, without review, along with his broad criticism of our Penn State culture was yet another mistake. . . Those who believe we can move on without due process for all who have been damaged by unsupported accusations are not acting in Penn State's best interest . . . We have the opportunity to move forward united inner commitment to truth. I urge all who love Penn State's name to fight on." -- Resignation speech of former 18-year trustee Alvin Clemens.

-- "Louis Freeh . . . assigned motivations to people, including Paterno, which at best were unknowable, and at worst might have been irresponsible." -- reporter Bob Costas.

-- "Clearly the more we dig into this, the more troubling it gets. There clearly is a significant amount of communication between Freeh and the NCAA that goes way beyond merely providing information. I'd call int coordination . . . Cleary, Freeh was way past his mandate. He was the enforcement person for the NCAA. That's what it looks like. I don't know how you can look at it any other way. It's almost like the NCAA hired him to do their enforcement investigation on Penn State. At a minimum, it is inappropriate. At a maximum, these were two parties working together to get an outcome that was predetermined."-- State Senate majority leader Jake Corman.

In summation, Pope said, "Some have said that the university's interests are best served by putting this unfortunate chapter behind us. We think differently. We believe that the only way to move forward is from a solid foundation based on an honest appraisal of our history. How can we create effective solutions if we might be working with a fundamental misunderstanding of the problems involved?"

"Our review, which took nearly two and a half years to complete, was a serious and thorough effort," Pope said. "We look forward with sharing the results of our analysis of the Freeh Report's source material without colleagues on the board at our meeting in July."

Related: Penn State Trustee Jay Paterno: "What are we hiding?"