The legal signficance of the Freeh report

Former FBI director Louis Freeh, Penn State hired to lead sex abuse investigation CBS

(CBS News) Thursday's report by former FBI director Louis Freeh provides a stinging indictment of top Penn State officials as well as a road map for civil and criminal attorneys involved in the Jerry Sandusky case.

"[T]he most powerful leaders at Penn State University - Messrs. Spanier, Schultz, Paterno and Curley - repeatedly concealed critical facts relating to Sandusky's child abuse," Freeh told reporters at a morning press conference.

Timothy Curley and Gary Shultz are currently charged with felony perjury related to their grand jury testimony, as well as failure to report suspected child abuse. The attorney general's office still has an open and active grand jury investigation into the Sandusky case, and the two men could face additional charges in the wake of what was uncovered in this report.

During the eight-month investigation, Freeh's firm conducted over 430 interviews and analyzed over 3.5 million emails and other documents.

Bruce Antkowiak, Professor of Law and the Director of the Criminology Program at Saint Vincent College, says the report shows attorneys exactly where to go look and who to talk to in the case.

Video: Penn State report: Legal analysis and impact

"This report provides plaintiffs attorneys with a tremendous amount of advanced discovery that they would not have been able to obtain and the impact on other cases pending and anticipated, could be significant."

"Freeh has gone where none of the rest of us have gone before - into the file cabinets," accordingly to Jules Epstein, Associate Professor of Law at Widener School of Law.

"If I am one of the lawyers suing Penn State and Second Mile, I am looking at this thinking, 'Wow, this could be a gold mine of additional material and I wont have to go on a fishing expedition -- Louis Freeh did it for me.'"

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While lawyers will know where to look for evidence and potential victims, it is unclear whether the Freeh report itself can be used against Penn State University in future court cases.

"This is new territory," says Antkowiak. "Penn State must argue that the report was not commissioned to speak for the university as an admission of wrongdoing, but to speak to the university."

Tom Kline, attorney for Sandusky victim #5, says courts will seriously consider the admissibly of the report.

"This was not an internal, self-critical analysis. This was a publicly-announced public document that was pronounced by Penn State to be as such. I do not expect them to be able to run very far or wide from it. "

Antkowiak acknowledges the point of this report was not about setting the stage for future litigation. "Freeh was hired to tell the board of Penn State Board what happened, how it went wrong and where are the places within the system that the collapses occurred."

Freeh did not have subpoena power because this was not an official legal proceeding and everyone who cooperated did so voluntarily. Several of the key figures, including Sandusky, Curley, and Schultz, declined to be interviewed for the report. They could be compelled to testify in a legal action.

Freeh that Penn State failed to comply with the Clery Act, a 1990 federal law that requires the collecting and reporting of the crimes such as Sandusky committed on campus in 2001.

The report states, "[O]n the day Sandusky was arrested, Penn State's Clery Act implementation plan was still in draft form. Mr. Spanier said that he and the Board never even had a discussion about the Clery Act until November 2011."

Violations of the Clery Act do not carry criminal penalties, but Penn State could face significant civil fines and can be denied participation is federal financial aid programs.

Freeh told reporters Thursday: "What significant and shocking is the four of them, the most powerful people in Penn State University made a decision to conceal information.

Kline says this raises questions about additional criminal charges. "Whether we have a civil or a criminal conspiracy among individuals who consciously deliberately collectively collaboratively moved in concert to conceal the information from law enforcement the board of trustees."

Antkowiak points out that plaintiff's attorneys want to see conspiracy charges because it helps their case. "If you are a plaintiffs' lawyer, that word encapsulates so much of what you want your case to be about: a willful attempt to cover up something that you absolutely recognize is wrong.

"This became a collective judgment, according to this report, of people who were in a position to make those final decisions. If you can get the word conspiracy to stick in a case like this you are in for a huge reward."

When asked about conspiracy at a press conference Thursday morning, Freeh said: "The evidence clearly shows in our view an active agreement to conceal, and I think it would be up to a grand jury and a law enforcement officer to make decisions, whether it meets the elements of criminal offenses."

Thanks to the Freeh report, law enforcement officers now know exactly where to look.

  • Paula Reid

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