What More Could Joe Paterno Have Done In the Jerry Sandusky Scandal?

Joe Paterno

Joe Paterno was laid to rest last week, leaving behind a debate on his failure to "do more" with information he received about alleged child sexual abuse involving former Penn State assistant coach Jerry Sandusky.

The Penn State Board of Trustees fired the 85-year-old Paterno for his failure to "do more" after assistant coach Mike McQueary went to him in 2002 about a scene he had witnessed between a boy and Sandusky in a Penn State shower facility. By all accounts, Paterno encouraged McQueary to report the information to Penn State administrators, including the vice president who oversaw the campus police department. McQueary did just that, but higher ups failed to take substantive action, and that allegedly allowed Sandusky to abuse more boys over a roughly 10-year period.

Two camps seem to have solidified since a grand-jury report was released, providing details about Paterno's actions in the Sandusky case. One camp, consisting mostly of Penn State supporters and hard-core college-football fans, holds that Paterno did all that was legally and morally required of him--and he should not have been fired, with his legacy tarnished. The second camp, which seems to consist of just about everyone else, holds that Paterno should have "done more" with the information McQueary gave him, and thus, his firing was justified.

I've yet to hear or read anyone in Camp No. 2 define what "more" Paterno was supposed to have done. That's because, in our system of justice, he did about all he could do. And the truth is this: The aging coach was treated horribly by the institution he helped turn into a household name.

Paterno surely did not mean for it to turn out like this, but as one of his last acts, he can help teach us about the inconsistencies, misperceptions, and even the dangers that pervade our criminal "justice" system. Many Americans, I suspect, have a simplistic view of the procedure surrounding an alleged crime, and it goes something like this: You witness an unlawful event, you report it to a highly competent (and honest) law-enforcement officer, he refers it to a highly competent (and honest) prosecutor, all of the lawyers and judges involved are highly competent (and honest), the bad guy is convicted and punished, and the victim walks away feeling cleansed by the whole process.

Reality, in many cases, is nothing like that. I know because I have been the victim of a crime (a relatively minor one, thankfully), and I know what happened after I made the mistake of reporting it to authorities. The truth? Our system is filled with incompetence and dishonesty at every turn. Many lawyers and judges are not remotely interested in dispensing justice. Many bad guys get off, and many victims walk away feeling that they have been victimized for a second time.

Joe Paterno probably had little experience with the criminal justice system, so it's unlikely he was acting from any particular insight when he received information about Sandusky. We know, from an interview Paterno gave to Sally Jenkins of The Washington Post, that he felt "inadequate" to handle the situation that McQueary described, and that's why he referred his young assistant to administrators up the line. Here are three truths about the American justice system that, to me, mean Joe Paterno was wise to handle things the way he did:

* Paterno had no legal evidence to provide--Our criminal-justice system is based largely on two kinds of evidence--direct and circumstantial. What Paterno had in the Sandusky case was neither. He did not directly witness the events, and he did not even witness the immediate aftermath, which might have produced circumstantial evidence. All he had was what Mike McQueary told him, and under the law, that probably would come under the heading of hearsay. (Note: Hearsay is a complicated subject, and I won't go into details of that; suffice to say that anything Paterno told authorities probably would have little, if any, probative value.) When you report a crime, based on my experience, a semi-competent officer or prosecutor wants to know what you witnessed. If you say, "Well, my friend told me that he saw such and such happen," the law-enforcement person is likely to ask to talk to your friend. If your friend isn't there, you probably will be told, "The exit is over there; don't let the door hit you in the butt on the way out." Yes, Joe Paterno is perhaps the single most famous individual in Pennsylvania. But under the law, criminal matters are not decided based on someone's high profile; they are decided on relevant evidence, and Joe Paterno pretty much had nothing to offer.

* Even if Paterno had tried to take stronger action, Sandusky still might have walked--Our justice system is filled with perils for everyone who tries to seek convictions. The "beyond a reasonable doubt" standard is extremely hard to meet. Someone of substantial means, such as Sandusky, could have afforded a top-notch defense lawyer to battle every step of the way. Given that prosecutors almost certainly would have had to keep Paterno at arm's length--based on his inability to provide relevant evidence--chances are strong that Sandusky would have walked, especially when you consider that abuse cases involving children are notoriously hard to prove. Numerous commentators in the press have stated that Paterno could have saved numerous boys from being abused if he had taken stronger action. That is a long way from being certain.

* Paterno could have put himself at risk by getting involved--Our "justice" system includes a tort called malicious prosecution, which can lead to huge legal headaches for anyone who reports and seeks to prosecute a crime. Malicious prosecution is at the heart of our Legal Schnauzer story, and I have written about it several times. A post called "The Road to Legal Perdition" describes my experience with what is supposed to be a disfavored tort--one that almost never should be brought. I've learned, however, that the law and what actually happens in a courtroom can be two entirely different things. Malicious prosecution might be "disfavored," but it can be a powerful weapon in the hands of a vindictive party with a corrupt attorney--and it should cause any American to think twice before seeking redress in court.

Like hearsay, malicious prosecution can get fairly complicated. It's got all kinds of built-in "ifs, ands, and buts," but the bottom line is this: If you file a criminal complaint against someone and they are found not guilty, that person can turn around and sue you. A malicious prosecution complaint alleges that you brought the underlying complaint without any probable cause; in essence, it's saying you made the whole thing up. Malicious prosecution most often is brought against department stores, grocery stores, and the like when someone has been charged with shoplifting and been acquitted. But it can be brought in most any criminal case and even in civil cases. If you bring a lawsuit against someone, and the court finds in their favor, they can sue you for malicious prosecution, at least in theory.

I'm not a lawyer, so my knowledge of malicious-prosecution law is not perfect. (Lawyers rarely deal with these kinds of cases, so most of them don't have perfect knowledge either.) But here is my understanding of what could have happened with the Penn State case:

Let's imagine that Joe Paterno "does more" after talking to Mike McQueary. As a non-witness, Paterno can't lawfully do a whole lot more. But imagine that he goes with McQueary to the campus police, and they then go together to speak to prosecutors. Imagine that Paterno, outraged by the notion of child sexual abuse in a Penn State shower facility, throws his weight around in an effort to get authorities to act--and they, in fact, bring charges against Sandusky.

The case goes to trial, and in a highly publicized, emotional courtroom drama, Sandusky is found not guilty. In the aftermath, Sandusky claims that he has been professionally and financially ruined. He claims that McQueary made the whole thing up, perhaps out of spite, and Paterno should have known better than to believe McQueary.

As the lead witness, McQueary almost certainly would have been vulnerable to a malicious prosecution lawsuit. Would that have happened? Probably not. If it had happened, would Sandusky have prevailed? Almost certainly not. But McQueary would have been forced to spend significant time and expense defending himself. And Paterno, because he has deep pockets, might have been brought in as a co-defendant under some creative legal theory--perhaps conspiracy or respondeat superior (also known as "master-servant). My guess is that Paterno's insurer, or Penn State's, would have paid Sandusky a nice chunk of change to make the lawsuit go away.

Given what I know about the reality of our justice system, am I critical of Joe Paterno for his failure to "do more"? Absolutely not.

If Jerry Sandusky is found to have sexually abused numerous boys between 2002 and 2012, that's an epic tragedy. But Joe Paterno, based on what we know now, was in no position to control it or stop it. In a system that can punish witnesses for coming forward, Paterno was wise not to get too close to a bonfire.

This sounds awful to say, but here is what Mrs. Schnauzer and I have learned from our experience: If either one of us ever witnesses another crime, we probably will let it slide. If anyone tries to involve us indirectly in reporting a crime, there is no way in hell we are getting involved.

Our hope is that this blog might someday help change some of what's wrong with our justice system, including the abusive use of malicious-prosecution lawsuits. But until that day comes, our advice for those who might report crimes is this:

(1) Stay quiet about it; if you or a loved one is the victim, learn to live with the damage;

(2) Report it, but know you are taking a risk--and know that the bad guy might get off, and you will get sued for your trouble;

(3) To borrow a phrase from Nevada GOP Senate nominee Sharron Angle, consider "Second Amendment remedies." I'm not advocating that victims open fire left and right. But in a country where the justice system is hopelessly corrupt, and guns are readily available, victims have to think about alternative means for achieving justice. I've never been a big fan of guns, but count me as one liberal who is starting to see their value.

If I had it to do over, here is how I probably would have handled the criminal trespassing problem with Mike McGarity, our thuggish neighbor: After I had warned him repeatedly to stay off our property, and he had sassed and threatened me two or three times, I would have bought a gun. When the trespassing was ongoing, I would have gone outside, weapon in hand, and made sure he was aware that I was armed. Would I have pointed it at anyone or threatened anyone with it? Nope, not unless I was threatened first. Ideally, I also would have purchased a video camera and had someone there to film my actions, documenting that I did nothing improper. Could that have led to a shootout between McGarity and me? Perhaps. But more likely, I think it would have come much closer to solving the problem than what we achieved by consulting multiple lawyers and filing a criminal complaint with the sheriff's office.

The bottom line? Mrs. Schnauzer and I have learned a hard lesson on the American frontier: If you want your rights respected, you had better be prepared to protect them yourself. Trying to rely on authorities is likely to blow up in your face.

As for Joe Paterno, he did the right thing--and he should not have been fired or even reprimanded.