Links for November 14, 2011: The Penn State edition

A facebook friend's message. Good advice.

  1. First and foremost, try not to lose sight of the actual criminal. His name is Jerry Sandusky.

  2. Here is the infamous report. Anyone who has talked to anyone about this issue and who has offered even the slightest defense of Joe Paterno was surely asked whether they have read the report. The report is 23 pages long. Joe Paterno plays a walk-on role on page 7. The report adds few details other than those that the media has made common knowledge. When people ask, “Have you read the grand jury report?” I feel it is often for two reasons:

    First, one is expected to heap greater duties on bystanders upon learning the heinous details of the crimes alleged. Had Sandusky merely been stealing paper clips from the supply closet, or embezzling money, it may have been okay for Paterno merely to go up the chain of command. But once you read the grotesque details of the shower scene, you are expected mentally to change Paterno’s status from bystander to accomplice. I do not find this approach to be valid. As the facts have been presented, Paterno is still a bystander, regardless of the nauseating nature of the crimes.

    Secondly, you are expected to read more into the report than is there. Given that the crimes had gone on for so long, and given Paterno’s long working relationship with Sandusky (which I know nothing about), you are expected to surmise what Paterno “must have known”. By reading the report, one is expected to have shared in Joe Paterno’s mind and memories for the past twelve years, as if one had performed a Vulcan mind meld on him.  Personally, I have not endeavored to do this. My comments here extend only to the black and white facts as the grand jury presented them in is report. The Grand Jury report tells the stories of eight victims. Joe Paterno is involved only in the case of Victim 2. The report does not allege that Joe Paterno knew anything about any of the other victims. That may be hard to believe. Of course, Paterno may have been involved in a larger cover-up. If I were the prosecutor, I would certainly be looking for further evidence. I would not be very surprised if such evidence turned up. But I am not the prosecutor, and I happen not to be speculating on that right now. Right now, I am considering only what has been specifically alleged.

    One last thing to note about grand juries: Everyone should understand that the Grand Jury report is essentially the prosecutor’s narrative of the facts of the case. Grand juries are conducted in secret. The accused is not permitted any defense whatsoever. I wouldn’t ask anyone to completely disregard the facts alleged, but keep this in mind when you read phrases such as, “The Grand Jury finds the graduate assistant’s testimony to be extremely credible,” which appears on page 8, and, “The Grand Jury finds that portions of the testimony of Tim Curley and Gary Schultz are not credible,” which appears on page 11. Defense attorneys, had they been permitted at the grand jury investigation, likley would have at least attempted to allege facts calling such assessments of credibility into question (to say nothing of all the other alleged facts). Such attempts to discredit witnesses are often nothing short of desperate, for sure, but one never knows what a defense attorney might discover and introduce until he is permitted to do it.

  3. Anthony J. Colleluori defends Joe Paterno. This incident generated a lot of conversation among my facebook community. Here is a libertarian’s take:

    The general rule is that every individual is a sovereign. Nobody owes anybody else, adult, child, or otherwise, any duty to act unless such duties are voluntarily accepted. Many of us have found ourselves in this position: We have either witnessed or heard about some apparent crime, but we brushed it off, thinking maybe that it was not so serious, or that things will work themselves out. In that moment we may have fallen short of the high standards to which we often hold other people. We may have lost sleep for several days afterword, but I don’t think that makes us bad people. I think that just makes useless as crime-stoppers.

    What people say they would do, when they want to appear virtuous on facebook, and what they would actually do when confronted with a real-life situation, are not necessarily the same thing. That’s okay, because nobody bears the burden of being anybody else’s hero. I grant deference to individauls who either witness or receive tips about criminal activities. It is within their right to consider the seriousness and credibility of their accounts when deciding what, if anything, to do about them. They also reserve the right to decide for themselves the extent to which they will voluntarily involve themselves in other people’s business.

    In my view, Joe Paterno’s moral duty and his legal duty were coextensive and covered only those duties that he agreed to fulfill as conditions of his employment with Penn State. These sorts of conditions vary from institution to institution. Consider several interesting comments below Colleluori’s article. For example, one anonymous wrote:

    No one seems to get that there are protocols you have to follow when you are working at a job and have an incident like this come about. You can’t just go call the police. You have to make sure everything is documented so that your company or institution does not get blamed for you trying to be a vigilante and taking the law into your own hands. Both my parents are teachers in high school and if they had seen the same thing happen, guess who they would contact first? The school principal and the superintendent because those are my parents’ superiors. Once its said, it would be out of their hands and control because they do not have the authority to try and take this case on by themselves, unless they want to lose their jobs. You all just love to see the Great fall. That is what the media does to people.

    One Debra Ball wrote in response:

    I worked in education for ten years. It was made clear to me that if I had any reason to suspect a child was being abused that I was to report that information to a member of law enforcement. Not to anyone else in my organization (although they could also be notified) but directly to law enforcement. And then provide law enforcement with all the information I knew about the case. Unless the news reports I have read are incorrect, I was under the impression that Coach Paterno reported the information to his boss, who was not a member of law enforcement, which would not be the correct course of action for an educator. …

    The pendulum swings back. Another anonymous writes:

    As a social worker, I think that the author of this blog is absolutely right. First of all, Joe Paterno would not be considered a mandated reporter. A mandate reporter is one who has a legal obligation based upon their consistent professional contact with children to report abuse. As a university staff member who does not necessary come into contact with minors on a consistent basis, he is not a mandated reporter. Therefore, since the incident happened on campus, he would have a legal obligation to follow a chain of command. Additionally, those of us who are mandated reporters have a specific protocol to follow. We can make reports to Child Protective Services or the Police, but we cannot go to the media or make a personal crusade against someone until they are formally charged after an investigation has been done. Furthermore, child abuse allegations and investigations are kept confidential, so Joe would have not had a legal right to inquire about the nature of the investigation. As a person making a report, he would only have the right to find out the results after the investigation had finished. If the investigation came back unstubtaniated, he would not have a legal right to try to do more to investigate. As a social worker, once I make a report of child abuse, I do not have the right to personally investigate the allegation or personally inquire about the nature of the investigation itself because that is kept confidential. I cannot assume that the person who has been accused is guilty and base my actions upon that because I am not a proper investigative authority. So Joe would have been wrong to ethically and legally to do anything more than he did. … That is an unpopular position, but again, he had no legal authority or right personally go after Sandusky or make a media issue of it as it would have interfered with the investigation and he could have been sued and criminal charges possibly bought before him. …

    I see here three descriptions of duties the speakers have voluntarily accepted as a part of their jobs. That is all I would hold any of them to, either legally or morally.

    Here’s the twist: Just as Joe Paterno is a sovereign individual, so are the Penn State board members who employ him. As such, they are free to choose their associates. So long as Joe Paterno’s employment is at will, then the board members are free to terminate him at any time so long as they find that to be in the interest of the university. Here again, I grant deference. If Paterno’s employment was under contract, however, then the board has accepted the duty of employing him under the term of the contract. I don’t know the details of that work arrangement, so I can not really comment much futher the specifics.

    In short: I will not join the chorus of those excoriating Joe Paterno for his alleged failures. Neither will I join the riots in his support.

  4. This article was written in 1978 by Murray N. Rothbard, one of the most consistent libertarians I’ve ever considered. Here, he criticizes the subpoena power as an invision of individual liberty, which it is. But taking his reasoning to its logical extreme produces some unsettling results.

    First of all, if one is under no obligation to report to the police upon hearing about or witnessing a crime, then one should also be under no obligation to appear in court as a witness. At the end of the article, Rothbard spends two sentences reassuring us:

    Who then will bear witness in court? Whoever wishes to do so, freely and voluntarily. Conscription of witnesses is no more justified than conscription into the armed forces or into any other service or occupation. Freedom and individual rights must extend to all institutions and all branches of life, even into the judiciary, the heart of State power.

    Rothbard extended his reasoning to the accused criminals in his 1973 book, For A New Liberty:

    In fact, the entire power to subpoena should be abolished, because the subpoena power compels attendance at a trial. Even the accused criminal or tortfeasor should not be forced to attend his own trial, since he has not yet been convicted. If he is indeed — according to the excellent and libertarian principle of Anglo-Saxon law — innocent until proven guilty, then the courts have no right to compel the defendant to attend his trial. For remember, the only exemption to the Thirteenth Amendment’s prohibition of involuntary servitude is “except as a punishment for crime whereof the party shall have been duly convicted.” An accused party has not yet been convicted. The most the court should be able to do, then, is to notify the defendant that he is going to be tried, and invite him or his lawyer to attend; otherwise, if they choose not to, the trial will proceed in absentia. Then, of course, the defendant will not enjoy the best presentation of his case.

    And what other freedoms shall the accused enjoy up until the moment they are convicted? Should they enjoy the right to dispose of they own private property if that property is expected to be used as evidence against them? Would Murray Rothbard have tolerated any prohibition against covering up a crime that has not yet been successfully prosecuted? I don’t know. I’d have to look into it further to find out.

    Even I’m not ready to recognize that freedom. Intentional destruction or hiding of evidence for the purpose of obstructing justice should oughtta be the basis for criminal liability, I reckon. In my view, this would include any action calculated to acheive that end, but would not include mere inaction. If any documents were destroyed, or if a protocol were actively defied, or if any children were pressured to keep quiet, it would fall under obstruction of justice, in my view, and ought to be punished once discovered. Any justice system that didn’t make such provisions would be impotent.

  5. Locker room showers at Beaver Stadium. I don't think this was the scene of the crime, but it should give you the idea.

    This is not meant to excuse anyone for committing crimes against humanity–but what is with these showers? Many people are rightly asking, “Why is a grown man in the shower with a child in the first place?” But I’m also asking, “What type of showers are these where people waltz in and witness others performing lewd acts?” Isn’t there, like, a curtain or something? I’ve never been a sports guy, so I don’t really know what goes on inside of locker room showers, but you see them every now and then in the movies. Someone usually ends up having less fun than everyone else.

    We had showers like these at my high school, but I remember thanking providence every day that they were not put to their intended use, but rather used to store ping-pong tables and other large gym equipment.

    Again, not trying to shift blame, but I think that setting clearer boundaries might have prevented some of this. If I were in charge of that type of space, I would have had each shower head walled off in a separate stall with a lockable door. The children should not have had to “try to go to a shower some distace away,” (p. 18) just to avoid being too close to a creepy, naked old man while they shower. They should have had their own stalls that they should have entered alone and locked behind them.

    Clearer boundaries would have precluded such extraordinary-sounding denials as that they were probably just “horsing around in the shower.” (p. 10 of the report) Clearer boundaries would have removed an excuse to second-guess. I might hear the objection that these were instances not of second guessing, but of actively covering up obvious crimes. That may be. I think it could go either way. I also think that if everybody had their own shower stall, and if it weren’t semi-legitimate for grown, naked men to wander around with the kids in these semi-open, semi-public spaces, then a cover-up would be more of a certainty, and not just one of several plausible readings of the facts.

  6. JoePa in his own words:

    As my grand jury testimony stated, I was informed in 2002 by an assistant coach that he had witnessed an incident in the shower of our locker room facility. It was obvious that the witness was distraught over what he saw, but he at no time related to me the very specific actions contained in the Grand Jury report. Regardless, it was clear that the witness saw something inappropriate involving Mr. Sandusky. As Coach Sandusky was retired from our coaching staff at that time, I referred the matter to university administrators.

  7. Finally, some comic relief, if that’s possible. It seems a lot of these Penn State students have missed the point.

Posted from Diigo. The rest of my favorite links are here.

Photo credit: Locker room photo was originally posted at, but now seems available only in cached version through Google search here. I claim fair use of this low-resolution copy.

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