Linda Kelly's Inferno

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by William L. Anderson: Evangelicals,
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By now, anyone
who even barely follows the news is familiar with the conflagration
that has engulfed Penn State University and its now-disgraced legendary
coach Joe Paterno, who has won more football games than any other
college coach in history and did it at just one university. After
Paterno's former defensive coordinator, Jerry Sandusky, was arrested
for allegedly sexually assaulting boys who were involved in Sandusky's
organization, The Second Mile, which works with boys who had "troubled"
pasts, the fallout has resulted in Paterno being unceremoniously
thrown out of his job, Penn State's president fired, and the university's
athletic director and a vice president indicted.

What I am about
to say is that this wildfire was not necessary; this entire thing
could have been handled with much less destruction and this is the
result of Pennsylvania
Attorney General Linda Kelly's irresponsible actions
and statements.
I'll repeat: Linda Kelly has almost single-handedly taken a bad
situation and turned it into tragedy.

Before I explain
my point, I will inform readers that I do not endorse the predatory
sexual behavior in which Sandusky allegedly has engaged. (This is
to fend off the inevitable "You support child molesters!"
emails that I am sure to receive.) Nonetheless, I also support the
right of someone to a fair trial, and Kelly's irresponsible and,
frankly, selfish, actions not only have destroyed lives at Penn
State, but they also have effectively guaranteed that no jury from
this side of Outer Mongolia even could begin to hear Sandusky's
case without damning pre-trial prejudice. Furthermore, it is guaranteed
that Kelly's escalating of this issue will result in future laws
and policies that will result in innocent people being falsely accused
and convicted of terrible things that never will have happened.

The other thing
that Kelly has done has to take a story and help turn it into a
"narrative," and journalists around the country have jumped
on this, not caring if the "narrative" even is true. If
it sounds like what happened in the infamous Duke Lacrosse Case,
that is because we are seeing something very similar occurring.

At Duke, the
"narrative" was "rich, young white boys think they
can beat and rape a black woman and get away with it." Even
when the facts of the case immediately contradicted the media "narrative,"
nonetheless American journalists continued to run with it — until
they ran into a wall. (The irresponsible and dishonest behavior
of the Duke Administration and faculty, along with misconduct by
Durham police and prosecutors, never seemed to make it to the newsprint,
as journalists expressing their righteous anger could not be bothered
by actual misconduct that was occurring right in front of them.)

The Penn State
"narrative" is "Joe Paterno let Jerry Sandusky sexually
assault boys so that Paterno's Penn State football program would
not have its reputation damaged." The
parallel "narrative" is that the "good old boys were
protecting each other
." Yet, we have no idea if either
"narrative" is true. We don't know, and that is why there
should be real-live investigations, as opposed to inflammatory statements
from officials that journalists dutifully copy as though they were
Official Stenographers of the State.

Obviously,
the one difference is that the Pennsylvania authorities seem to
have a much stronger case against Sandusky than did North Carolina
prosecutor Michael Nifong, who had no case at all and had to lie
in order to gain indictments. That being said, however, the firestorm
at Penn State is about an alleged incident in 2002 involving Sandusky
and an unidentified boy.

Michael McQueary,
then a graduate assistant coach on the football team and now a paid
assistant, allegedly saw Sandusky sexually assaulting a boy in a
gym shower at Penn State. McQueary supposedly told Paterno what
he saw, and Paterno then told PSU Athletic Director Tim Curly and
Curly then told university Vice-President Gary Schultz, who then
allegedly relayed the incident to PSU President Graham Spanier.
No one in that chain told police or child protective officials.

Despite the
fact that it was known for many years that authorities had been
investigating Sandusky for his alleged behavior with boys, the narrative
— and much of the case — centers around the alleged shower incident
that McQueary claimed to have seen. In fact, Kelly got indictments
against Curly and Schultz for not reporting the alleged incident
to police (and she says she might indict Spanier), and then got
further indictments against them for perjury, as she claims they
lied to the grand jury.

As I see it,
this is where Kelly not only has gone off the tracks, but also has
acted destructively. According to Pennsylvania law, neither Curly
nor Schultz are what the law calls "first responders,"
people who are required to report any claim or alleged incident
of child abuse or neglect. For example, as a college professor,
if any of my students even make an offhand claim about being abused,
I must report that claim to the police, or I can be charged
with a crime myself.

Curly and Schultz,
however, did not fit into this legal category. Furthermore, according
to the law under which they were indicted, the statute of limitations
had passed. To make things even more complicated, the alleged victim
in this incident is not even an accuser and no one knows who he
is, nor has he "come forward," despite pleas from Kelly's
office.

Thus, what
Kelly did was to secure indictments against people who did not break
the law and even if they did, knowing that the statute of limitations
had passed. To make things worse, she made inflammatory comments
about them in a press release, declaring:

Those officials,
to whom it was reported, did not report the incident to law enforcement
or any child protective agency, and their inaction likely allowed
a child predator to continue to victimize children for many
more years.

From my own
reading of the Rules of Conduct for Pennsylvania attorneys, this
violates Rule 3.8(e)
, which states:

…except
for statements that are necessary to inform the public of the
nature and extent of the prosecutor’s action and that serve a
legitimate law enforcement purpose, refrain from making extrajudicial
comments that have a substantial likelihood of heightening public
condemnation of the accused and exercise reasonable care to prevent
investigators, law enforcement personnel, employees or other persons
assisting or associated with the prosecutor in a criminal case
from making an extrajudicial statement that the prosecutor would
be prohibited from making under Rule 3.6 or this Rule.

Moreoever,
Rule 3.8(a) states that prosecutors shall:

refrain from
prosecuting a charge that the prosecutor knows is not supported
by probable cause;

I believe it
is safe to say that a prosecutor that knowingly charges someone
with a crime even though the law does not cover their positions,
and that the statute of limitations has passed, has violated that
rule, and the punishment for that violation could be disbarment.
That action combined with the inflammatory public statements she
made about the defendants (while knowing that the indictments against
them were legally questionable at best) certainly reflect reckless
and illegal behavior on behalf of Pennsylvania's top law enforcement
officer.

To make things
worse, because this particular alleged incident has produced no
person who has come forward to claim he was the "victim,"
we are dealing with a phantom crime. Yes, the incident very well
might have occurred, and I don't think that McQueary had any reason
to lie. Nonetheless, I don't believe that Kelly can claim that these
men forsook their legal duties to report a crime when, in fact,
she has no proof that a crime was committed other than what McQueary
has said.

This hardly
is legal hairsplitting. If there is no crime victim in this situation,
there is no crime (even if we believe that the events McQueary described
actually happened), and unless a credible person shows up who can
prove his whereabouts that night in 2002, Kelly cannot charge Sandusky
with that alleged assault.

Yet, it is
this very incident, with subsequent indictments, that has created
the worst firestorm at Penn State. Until Kelly decided to escalate
the situation, the police were quietly investigating Sandusky, not
seeking major publicity in the process. This was what police should
have been doing, and at the end of their investigation, if they
believed they had enough evidence, they could have arrested Sandusky
and charged him with the assaults for which young men who say they
were Sandusky's victims have claimed he committed.

Sandusky
would have been arrested, and while I have no doubts that there
would have been further investigations at Penn State, I also believe
that if investigators believed that Paterno had looked the other
way, he could have been permitted to retire at the end of this season
without the show of force from the PSU board of trustees.

Instead, we
are treated to an awful show of riots, public accusations, and a
situation in which it now is impossible for clear heads to prevail.
I believe that this did not have to be the result, yet because Kelly
wanted to ramp up the heat, she has sowed the wind, and what follows
is the inevitable whirlwind.

November
12, 2011

William
L. Anderson, Ph.D. [send him
mail
], teaches economics at Frostburg State University in Maryland,
and is an adjunct scholar of the Ludwig
von Mises Institute
. He
also is a consultant with American Economic Services. Visit
his blog.

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