Linda Kelly's Inferno

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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.

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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.

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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;

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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