Legal experts said emails and other evidence in the Penn State investigative report released Thursday suggest that Paterno may have misled a grand jury when asked when he first heard about Jerry Sandusky's misconduct, and show that Paterno and other university officials put boys in danger with their failure to report sexual abuse allegations against Sandusky more than a decade ago.
Duquesne University law professor Wes Oliver said the report by former FBI Director Louis Freeh reads like a prosecution case for a child endangerment charge against Paterno, then-President Graham Spanier, athletic director Tim Curley and now-retired vice-president Gary Schultz. Oliver noted that a former top official in the Philadelphia Archdiocese was convicted of that charge in June for allowing a suspected pedophile priest to be around children.
"If you look at what happened here, it's very clear that they were aware that they had a pedophile on their campus," Oliver said.
Will Spade, a former Philadelphia prosecutor who worked on a grand jury investigation of priests about a decade ago, agreed: "Spanier, Paterno, Schultz and Curley are arguably responsible for endangering all of those kids that were abused later."
So far, the only two figures arrested in the alleged coverup are Curley and Schultz. They were charged last fall with perjury and failure to report suspected child abuse and are awaiting trial. They have denied any wrongdoing.
Spanier, who was ousted as Penn State president over the scandal, has not been charged, but a grand jury continues to investigate. Paterno died in January of lung cancer at 85.
Paterno family spokesman Dan McGinn declined to comment on the criminal legal issues on Friday.
At the very least, the Freeh report provides powerful ammunition to Sandusky victims looking to sue the university or Paterno's estate.
The report said that Paterno and the other university officials hushed up child sexual abuse allegations against Sandusky in 2001 for fear of bad publicity. Asked on Thursday whether the actions of the four men amounted to a crime such as conspiracy or obstruction, Freeh said that would be for a grand jury to decide. But the former FBI chief and federal judge said the evidence shows "an active agreement to conceal."
Freeh described Paterno as "an integral part" of that agreement. According to his report, Spanier, Schultz and Curley drew up a plan that called for reporting Sandusky to the state Department of Public Welfare in 2001. But Curley later said in an email that he changed his mind "after giving it more thought and talking it over with Joe."
The report also called into question the truthfulness of Paterno's grand jury testimony last year, when he was asked whether he knew of any abuse allegations against Sandusky before the 2001 episode in which Sandusky was spotted assaulting a boy in the locker-room showers.
"I do not know of anything else that Jerry would be involved in of that nature, no," Paterno testified in a grand jury appearance that lasted only a few minutes. He added that a rumour "may have been discussed in my presence, something else about somebody. I don't know. I don't remember, and I could not honestly say I heard a rumour."
But emails published in the Freeh report suggest Paterno closely followed a 1998 police investigation of Sandusky that ended without charges. In an email captioned "Jerry," Curley asked Schultz: "Anything new in this department? Coach is anxious to know where it stands."
Paterno, "were he alive, he would probably be scrutinized right now, as we speak, by a grand jury," said Jeff Anderson, a lawyer who represents a young man suing Sandusky, Penn State and Sandusky's charity over claims of sexual abuse. "When he did give testimony, now revealed to have been dubious at best and false on its face, that is illegal perjury because it was given under oath. So he is exposed."
Perjury, though, is rarely charged and is famously difficult to prove at trial. A jury has to find corroborating evidence of the falsehood, and the lie has to be intentional, not a simple misstatement. In Paterno's case, prosecutors would have had to prove that Paterno had not simply forgotten about the 1998 investigation, according to University of Pennsylvania law professor Chris Sanchirico.
When the scandal broke wide open last November, Pennsylvania Attorney General Linda Kelly said Paterno was not an investigative target. On Friday, Kelly spokesman Nils Frederiksen refused to discuss the investigation, citing the confidentiality of grand jury proceedings.
Spanier's lawyers had no comment Friday but have denied he knowingly covered up Sandusky's crimes.
On the civil side, Paterno's role in the scandal could expose his estate to liability, said Altoona lawyer Richard Serbin, who has pursued lawsuits against the Roman Catholic Church and other institutions in Pennsylvania for the past 25 years. Paterno was considerably wealthy; he and his wife donated millions to the university, and in April the school paid millions in retirement benefits to his family and estate.
"When a responsible party passes away, that does not mean to say their wrongful conduct is excused by death," said Serbin, who does not represent any of Sandusky's victims. "Their estate becomes the representative of that person, and assets of their estate ... remain exposed to any verdict or judgment."
Dale contributed to this report from Philadelphia.