BishopAccountability.org
	Prosecute Penn State for "Chain of Command" Cover-up By Wendy J. Murphy Patriot Ledger November 14, 2011 http://www.patriotledger.com/mobile/x495073735/WENDY-J-MURPHY-Prosecute-Penn-State-for-chain-of-command-cover-up Joe Paterno has hired noted criminal lawyer J. Sedwick Sollers to represent him in the Penn State Child sex abuse scandal. Sollers' firm specializes in defending individuals, corporations and institutions from criminal charges. This move has a lot of folks wondering whether the next shoe to drop will be the filing of RICO charges or corporate criminal indictments against the Second Mile Foundation (SMF), where former Penn State assistant football coach Gerry Sandusky reportedly trolled for victims, and/or Penn State, where he is accused of bringing victims to be abused. RICO charges cover "racketeering activity" involving the affairs of an "enterprise" and usually apply to organized crime such as gambling and drug trafficking. But in Pennsylvania, the law defines "enterprise" generously and includes "any individual,… corporation, … and any … group of individuals associated in fact … [who are] engaged in commerce". This includes "legitimate as well as illegitimate entities and governmental entities". Translation: So long as money is being made somewhere, an association of individuals or entities is an enterprise". Facts that may support such a prosecution include the longstanding relationship between Penn State and SMF including that Penn State allowed SMF to conduct its summer camp for boys on its property, where kids were said to have been groomed for abuse, and didn't charge them a fee. Sandusky reportedly also used Penn State's football program and sports merchandise, obtained as a direct result of his relationship with Penn State, to coerce and manipulate his victims into silence. Sandusky and Paterno received substantial payments from SMF during the time period when children were being victimized, and during a time when each was also being paid by Penn State. In addition, Penn State shared its attorney with SMF and individuals from Penn State served on the SMF board. Whether any of this relates to rumors about SMF making boys from the foundation available for sexual purposes to "big donors" remains to be seen but the overlap between the entities and individuals from both organizations is substantial and more than demonstrates the existence of an "enterprise" for RICO purposes. A RICO prosecution would have to establish that "enterprise" activities amounted to "racketeering", which is defined in Pennsylvania law as including two or more enumerated prohibited acts. Such acts include the "trafficking of persons", "falsification and intimidation" of witnesses and "public indecency". "Trafficking of persons" is defined as "recruiting or providing" a person for "forced services", including sexual services. "Public indecency" is "any lewd act" which is likely to be observed by others who would be "affronted or alarmed". "Falsification and intimidation" is defined to include agreements to commit perjury and to deter witnesses from testifying. Based on even the small amount of information thus far released, there appears to be plenty of proof to establish all three forms of "racketeering" activity. Even if a RICO charge is not forthcoming, the corporations of Penn State and/or SMF could be charged with a crime. A company can't be sent to jail, but a corporation can be prosecuted under Pennsylvania law so long as a criminal offense "was authorized, requested, commanded, performed or recklessly tolerated by … a high managerial agent acting in behalf of the corporation within the scope of his office or employment". In many states, the criminal prosecution of corporations is limited to crimes that affect public health, but the law is clear in Pennsylvania that corporations can be prosecuted for all criminal offenses and that the "high managerial agent" need not expressly affirm the conduct. It is enough that the agent "recklessly tolerate" the crime. Given Joe Paterno's unique position of power at Penn State, his status as football coach may well make him a "high managerial agent", but even if his job title is not "high" enough, the position of university president is sufficient and the evidence appears overwhelmingly clear that recently deposed Penn State president, Graham Spanier, "recklessly tolerated", if not directly committed, the offense of failing to report the brutal rape of a child in the football locker room on Penn State's campus in 2002. Spanier testified before the Grand Jury that he was told only that the boy was engaged in "harmless horseplay" with Sandusky in the shower. This claim was contradicted by the testimony of Mike McQueary, the graduate assistant who said he directly witnessed the child being raped and testified under oath before the Grand Jury that he told Paterno as well as the athletic director, Tim Curley, and the Vice President for business affairs, Gary Schultz, what he saw. It was also contradicted by Paterno who soft pedaled the truth but nonetheless admitted to the Grand Jury that he reported the incident to Spanier as a sexual assault. The Grand Jury determined that Curley and Schultz committed perjury when they testified the 2002 incident was reported to them as harmless horselplay, which means the Grand Jury believes that Spanier committed perjury, too. Spanier admitted approving the actions taken against Sandusky, including forbidding the guy to bring children to campus, and taking away his keys to the locker room. It strains credulity to claim that these sanctions were imposed on Sandusky for harmless horseplay, and it's absurd in the extreme to believe that anyone would assume Sandusky's conduct was not sexual given long-standing reports of inappropriate sexual conduct with children, including the sexual exploitation of two boys in the Penn State locker room showers in 1998. Spanier claimed not to know about the 1998 reports, which is laughable because the incidents were investigated at length by outside law enforcement officials. Sandusky negotiated a "retirement" package with Penn State immediately after the incident was declined for prosecution. By claiming to know nothing about the 1998 incident, Spanier provides an excuse for himself about why he was not more suspicious about the 2002 "horseplay in the shower" report. His feigned lack of knowledge about the 1998 investigation is preposterous but it makes sense if Spanier is trying to protect Penn State, and himself as the "high managerial agent", from corporate criminal prosecution. The less he knows, the more he can deny being "reckless" in failing to report the 2002 incident. Silence might have been a better choice because his denials have zero credibility and only add to the perception that his participation in the coverup was intentional. Reasonable people want to know why Graham Spanier has not been indicted for perjury. If the evidence is sufficient to prove that Curley and Schultz lied, it's axiomatic that the proof is there against Spanier, too. One explanation is that prosecutors have determined in their discretion to focus on the primary suspect, Jerry Sandusky, and that it is enough to punish only Curley and Schultz for Penn State's failure to report the 2002 incident. Another explanation is that prosecutors are planning to file corporate criminal charges against Penn State, which would require the prosecution of Spanier as the personal embodiment of the corporation. In other words, Spanier would have to appear as the human representative of the “corporate defendant” in the criminal case. This would be a welcome development in a case where the public outrage is palpable not only because of what Sandusky allegely did but how he was enabled by Penn State as an institution. Colleges and universities have extraordinary authority to insulate campus crimes from detection. They're effectively entrusted with self-governance because real-world laws have barely any oversight value. Mandatory reporting laws, for example, are only minor misdemeanor offenses in every state; often carrying no more than a small fine for violations. Worse, in Pennsylvania, as in nine other states, the law is explicit that employees need not report directly to outside authorities and can satisfy their reporting obligation by reporting only to a supervisor. Interestingly, this “chain of command” change to Pennsylvania’s mandatory reporting law happened right before Sandusky’s first alleged on-campus offense in 1998. The “chain of command” rule exists in about 30 states where mandatory reporting statutes either explicitly or passively allow employees in institutional settings to report child abuse only to an immediate supervisor. In these jurisdictions, employees who report directly to outside law enforcement and child protective service agencies face employment sanctions, including termination, for reporting outside the institutional chain of command. Only a handful of states mandate that institutional employees report to a supervisor AND to outside authorities. Fewer still provide clear protection against workplace sanctions and retaliation for employees who make direct reports to law enforcement and child protective services agencies. In exchange for this unchecked power of self-governance, institutions must be held strictly accountable with the toughest possible sanctions when cover-ups are exposed because, as the Penn State scandal demonstrates, the activity is exceedingly difficult to police and redress using real-world law enforcement tools. The law in Pennsylvania is particularly generous on the issue of corporate criminal liability. With the whole world watching the dismantling of what appears to be a significant criminal enterprise, prosecutors should not lightly overlook the opportunity before them. Criminal charges against a sacred institution that heretofore perceived itself as invincible are an essential next step in punishing an arrogant university for its role in breeding the kind of toxic environment where reportedly a predatory sex offender thought nothing of raping children in a shower - sometimes in front of witnesses - as if to declare that he knew the university would protect him from detection. Sandusky if convicted will pay a stiff price, but the same thing will happen again at other universities if Penn State's role in this scandal is not exposed and prosecuted, and if the power and influence of the university to enable such abuse in the future is not eviscerated once and for all. Wendy Murphy is a leading victims rights advocate and nationally recognized television legal analyst. She is an adjunct professor at New England Law in Boston. She can be reached at wmurphy@nesl.edu.
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