Due Process And The Road Not Travelled (Eric Silver)

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[Eric Silver is Professor of Sociology and Crime, Law, and Justice at Penn State.]

In Our Rush to Get the Outcome Right, Did We Get the Process Wrong?

01jaws.jpgIn the final scene of the movie Jaws, the great white shark is attacking the boat. Its head is on deck, and the boat is rapidly taking on water. All looks lost until someone throws an oxygen tank into the shark's mouth. In the next scene the oxygen tank explodes and the shark is defeated.

 In the media shark feed that followed the issuing of the grand jury report describing Jerry Sandusky's crimes, were Joe Paterno and Graham Spanier the oxygen tank?

 Just after the grand jury report was released, it was announced that two Penn State administrators, Gary Schultz and Tim Curley, were accused of perjury during their Grand Jury hearings.

 Graham Spanier's reaction to these accusations was to announce that the University would hire counsel for these administrators. His specific statements was this:

 "The allegations about a former coach are troubling, and it is appropriate that they be investigated thoroughly. Protecting children requires the utmost vigilance. With regard to the other presentments, I wish to say that Tim Curley and Gary Schultz have my unconditional support. I have known and worked daily with Tim and Gary for more than 16 years. I have complete confidence in how they have handled the allegations about a former University employee. Tim Curley and Gary Schultz operate at the highest levels of honesty, integrity and compassion. I am confident the record will show that these charges are groundless and that they conducted themselves professionally and appropriately."
 It was a moment for leadership, and Dr. Spanier was going to lead by standing by his people and allowing the justice process to unfold.

 The media's (and therefore, the public's) reaction to Spanier's statement was to vilify him as a secretive leader hell bent on a cover up. "How could he even think of hiring counsel to defend his employees when victims had been abused?"
 
The same man who only days before would have been ranked by many as among the most talented University Presidents of his era -suddenly was being depicted as at best incompetent and at worse immoral.
 
Such turn-on-a-dime shifts in our impressions ought to give us pause. But when the shark is on the boat, who has time for such subtleties?
 
Now that the shark has been fed and it seems more or less clear that the boat will not be capsized, I'd like to do something unpopular. I'd like to think out loud about Graham Spanier's road not taken.
 
I am a professor of Sociology and Crime, Law, and Justice, and I teach a class on the Sociology of Deviance. So I spend a lot of time thinking about deviance, morality, and justice.
 
And I must admit that when I first heard Dr. Spanier announce that he was hiring counsel to defend his accused employees, Schultz and Curley, I thought to myself, "good, let's let the justice process play out here and see what went wrong and who is responsible."
 
Maybe I've spent too many years in the Ivory Tower, but I believe in due process, and I felt thankful that we had a justice system in place to turn to in this high-stakes and emotionally charged circumstance - and a leader willing to make use of it.
 
02spanpat.jpgA day or so after Spanier's announcement, after it became clear to Spanier that the Board of Trustees had a more conciliatory leadership plan in mind, one that was NOT based on due process, Spanier resigned. And on that same day the Board of Trustees fired Joe Paterno (without benefit of due process).
 
It is easy to understand why the Board did what it did. The great white was champing at the boat and the Board needed something with a lot of TNT to throw in its mouth.
 
As we all know, the Board's TNT didn't succeed in stopping the media feeding frenzy. Though maybe it did keep the boat from capsizing.
 
03gavel.jpgEither way I can't help but wonder: What happened to due process? And without it, what message did the Board's actions send? Did the public interpret the firing of Joe Paterno and the resignation of Graham Spanier as admissions of guilt by the University?
 
Due process is the fundamental moral principle that underlies our justice system. It's based on the notion that an accused person is innocent until proven guilty. Due process exists to make sure that the accused gets a fair trial and that punishments are not meted out based on public opinion, hearsay, or mass hysteria.
 
And here's the tricky part: Because it protects people from false accusation, due process must always risk being insensitive to victims. It asks victims to be patient while all the facts are aired, and their accusations along with the accused's responses are considered from all angles, so that the most just outcome can be achieved. It asks the public to withhold judgment until all the facts are known.
 
And yet, when Graham Spanier decided to hire counsel for his employees - a due process move - and when Joe Paterno announced that he would finish out his last season before retiring - each believing that they had done nothing criminal and that the justice process would bear that out - both were vilified by the media and lynched by the public.
 
Sandusky's crimes had touched a chord so disturbing that our collective ability to think clearly about the nature of justice was obliterated.
 
So much for due process.
 
In the end - when the justice process surrounding the Penn State scandal finally plays out - with the cases of Schultz and Curley - we may decide that the Board got the outcome right and that the careers and legacies of Joe Paterno and Graham Spanier deserved to be destroyed.
 
But what if Schultz and Curley are found innocent of perjury and cover-up? What then? What will we make of the Freeh Report and NCAA sanctions? And what about the firing of Joe Paterno and the loss of Graham Spanier?
 
Unfortunately, up until now, the only two entities out there who have been willing to critique the process by which the scandal was handled are the Paterno family and Graham Spanier. And because they both have something to gain by influencing how people see things, their arguments are easy to dismiss. And because I'm a Penn State employee, maybe mine are too.
 
It seems to me that Spanier and Paterno were tried and convicted in the media (including the Freeh Report) for allegedly covering up Sandusky's crimes in order to avoid bad press for the University. But isn't it also true that these two individuals were dumped by the University's Board of Trustees--without benefit of due process--in order to avoid bad press for the University? How can one seem so wrong and the other so right?
 
My point is not that we ought to remain indifferent to child sexual abuse or any crimes for that matter. My point is that before we mete out punishment on the basis of accusations, and regardless of how serious those accusations are, we need to have due process. Without it we live in a frightening world where people are guilty until proven innocent.
 
This is especially worrisome as we begin shoring up our reporting procedures in order to make sure that something like this never happens again.
 
Whether or not we got the outcome right, one thing seems crystal clear to me: we got the process wrong. We are all against child sexual abuse and we are all against engaging in cover-ups. But in our rush be against these things did it make sense to cut short the justice process?
 
lessons-learned.jpg
And so I'm left wondering, what exactly is the lesson here? If we want people to do the right thing for the right reasons without fear of negative publicity; if we want to believe people are innocent until proven guilty; then were Paterno and Spanier treated in ways that will encourage or discourage people from doing the right thing for the right reasons in the future?
 
In a just society the surest way to get the outcome right is to get the process right. It's not a guarantee but it's the best way we know. And in this case I can't help but ask: In our rush to get the outcome right, did we get the process wrong?
 

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17 Comments

Thank you so much for this. I've been arguing this for weeks, and I'm very glad to see another articulate voice who feels the same way.

I prepared this petition: http://www.ipetitions.com/petition/ncaa-psu-due-process/

which I was hoping would "go viral", but hasn't. My best guess is that it is too long.

Anyway, keep up the good work!

This was a good read. I'm glad at the very least, the faculty and staff at my alma mater have their wits about them. It's a shame the leadership doesn't

Thank you. This is what I have been saying all along.
LEC 72.

First a comment then a question. My comment is that your thoughts are shared by many through discussions in our neighborhoods, restaurants, churches,and workplaces. There is a significant level of support for your ideas about process and the lack of process in this whole matter.

My question is, why are you in the minority in regard to Penn State faculty and staff willing to step up and voice your opinion? I attended Penn State to hear opinions like this from which I learned so much. Very bright faculty like we are so fortunate to have at our university need to be heard. Thank you for setting the standard.

Simple answer to your question - Yes!

I BELIEVE THAT ALL ANYONE OF US WANTED FROM THE BEGINNING, WAS DUE PROCESS ! NOT THE VIGELANTE TYPE OF JUSTICE SHOWN BY THE FREEH REPORT, NCAA, BIG 10 AND MAY I ADD ESPN. AS PSU SUPPORTERS,WE CAN HANDLE THE TRUTH, WE JUST NEED TO BE SHOWN IT.

Amen

professor Silver's article was almost good but it missed the mark by a lot.

Due process is overrated as the deaths of 19 people by hanging and one by crushing at the Salem Witch Trials attest. These people got trials and "evidence" was presented. In recent times the travesty of the Father Shanley conviction was let stand by the Massachusetts appellate court using sophomoric reasoning.

Due process was given to Jerry Sandusky. But the evidence consisted of bogus repressed memories. Professor Silver let that pass with full acceptance that the man who devoted himself to helping troubled boys was a pedophile. One accuser told a neighbor that his mother would get a house and he a jeep. All the accusers said that they had fancy-pants lawyers to help with media. One suit against Penn State is already in progress.

The professor should have been aware of the several recent examples of community madness and how they come about.

Lastly, the professor should have more strongly condemned the incoherence of Freeh, the board of trustees, and the NCAA. I suspect the professor would fail any student whose work showed such lack of reason.

Exactly!! There isn't one Penn Stater who wouldn't be outraged to learn that anybody associated with this great university engaged in criminal, negligent or child-endangering behavior, but at the very least we should hear it from somebody who has actually talked to the central characters, under oath. We are a nation of laws, and we don't set those laws aside no matter how heinous is the alleged crime. This is a bigger travesty than Duke Lacrosse or Richard Jewel, in my expectation, at least until somebody can prove that my presumption of innocence is incorrect.

I am going to give my view from an outsider, and I am sure I will be labeled a hater, I had no opinion of Penn State one way or another before this catastrophe. I can look at all of the information, not just the Freeh report, and draw my own conclusions. My opinion is not formed by what the media has fed me, I know how to read court documents.

I understands and accept the concept of due process. Just because I form my opinion beforehand, does NOT mean I do not support a system of due process. I am not required the follow the same standards as a court of law, and I can make my decision, and adjust my decision as additional information is revealed.

There are numerous ongoing investigations, Penn State was subpoenaed by the Feds, there is a article by Sara Ganim that confirms it. The state also has ongoing investigations. It is going to take years to investigate and prosecute the ones involved in this tragedy, so are you saying I can't form my opinion, based on the evidence at hand for years? Individuals form opinions ALL the time before wheels of justice grind away, it doesn't mean we aren't interested in due process. This is not exclusive to Penn State.

Quote:
Either way I can't help but wonder: What happened to due process? And without it, what message did the Board's actions send? Did the public interpret the firing of Joe Paterno and the resignation of Graham Spanier as admissions of guilt by the University?

I will answer your question. I did not in any way see it as an admission of guilt by the University.The board did what had to be done.

The board messed up Joe Paterno's firing because they announced it on the phone and late at night. The board was not prepared for the fiasco (in part because of because Graham Spanier), but they did what was necessary. Joe Paterno did what was legally necessary, but did not meet the moral standards of the leader he espoused himself to be.

We now know there is evidence he never showed any victims any empathy in words or deeds until after Sandusky was arrested. And he lied about not knowing about 1998, but I degrees, I know he won't get "due process" but this man was leading cheers of "WE ARE" on his front porch, oblivious to what was unfolding around him. Did you read his biography? After the indictment went public, Joe's son was quizzing him about what he knew in regards to Sandusky, and Joe was only worried about playing Nebraska the next week.

Joe should have retired a decade ago, threw university officials out of the house when they tried to get him to retire. Joe knew he had his pretty little retirement package all wrapped up, he could have announced his immediate retirement, and asked for calm. No, he would never, ever, let others tell him how to run his "playground". Joe Paterno was out of touch, in poor health, shown he was not a leader when it mattered the most, and he needed to step down. He refused, so they had to make the choice for him.

If "due process" ran its course, and Joe Paterno was allowed to coach the rest of the season, or even stand on the sidelines, it would had disastrous consequences. Joe still got his big fat retirement package, his coaches, including his son, got big fat checks. If he left the way he did, he only has himself to blame.

In regards to Graham Spanier, the board not accepting his resignation was another error by a group of fools, maybe they need to check out the contractual terms, but then they could have accepted his resignation. Regardless, he needed to go. He was the head of the ship, it was going, down, and he was going to have to go down with it.

During last week's media frenzy, the one he plotted, planned and created, the handpicked interviewers didn't ask the appropriate questions or follow ups. Graham's answers were rehearsed and evasive. A skilled prosecutor would have torn him to shreds.

As someone who teaches law, you should know those interviews allowed him to take the stand, without being sworn in, and without being cross examined in a meaningful way. He was speaking to a potential jury pool, and if you can't recognize that, you shouldn't be teaching anything.

The statement you quote from Spanier, the one before this scandal blew wide open, was made because he thought it would all just go away. He had made it all go away before. He knew numerous people had testified before the Grand Jury, and never warned the full board. He had to go. We also know Spanier ran the university basically unchecked for over over a decade.

Once again, the public doesn't need to wait for "due process" to read all the information available and form an opinion. Why would the university be "vulnerable" for horseplay. His answer to that was mush mouth nonsense. I don't believe for a second he was only told "horseplay". I can accept evidence to prove otherwise if I see it, but not the self serving statement given by him.

Knowing his background, and the fact he is a family therapist, what part of a grown man in a showers at Penn State engaging in horseplay would not send up a red flag. He said he didn't ask for any additional information, he was busy don't cha know, Thon and all those things going on. Hogwash. If additional information becomes available in the upcoming trials, I have no problem adjusting my opinion.

Quote:
Due process is the fundamental moral principle that underlies our justice system. It's based on the notion that an accused person is innocent until proven guilty.

Exactly, a principle of the justice system, and a wonderful thing. However individuals do not have to adhere to the same standards, and can, and will form opinions as the system providing due process moves forward. Not just with Penn State, this applies across the board.

The fact I even have to explain that to a professor, someone who teaches others, is really disturbing. If Graham Spanier and Joe Paterno's careers were destroyed, they destroyed them, by not being the leaders they espoused to be. Quit blaming the media, or the public, it makes you look foolish.

Maybe you can find an esteemed colleague, outside of Penn State to explain to you while due process is a wonderful legal concept, it does not, and will not ever, have to apply to the court of public opinion.

I won't accuse you of drinking kool aid, but you have a very distorted view of the situation. You should NOT be teaching the information in your article to your students, you would be doing them a grave disservice.

In Response to Morgan:

I appreciate that you stated your opposing viewpoint in a calm and rational matter and refrained from inflammatory ignorant remarks which are far too common regarding this issue. Even though I hold the viewpoint opposite of you, it was actually refreshing seeing someone argue their the anti-Paterno side like a reasoned person. I would, however, counter some points you brought up in the same rational manner.

Yes, no one will argue that every person should be required to hold out for due process in their own personal opinions. I believe (though I may be wrong) the author of this entry meant it on a level beyond personal opinion. The public view took off from opinion to action in a matter of days. People can have initial reactions to information, but when it results in overwhelming public pressure and the premature destruction of careers and life's works, the fundamental idea of due process has been dismissed even if it is outside the court room.

You then mention how the board did what was right. I want so badly to disagree with that statement, but I feel as if they had no other option after they let the media take control of the story by standing silently by. I do not agree with their decision, but at the same time I can't see another other option they had. However, you say how it was just, because Paterno failed his moral obligations. I see it differently. What I see in all of this is a man who was brought a vague story. This story of some sort of fondling or inappropriate sexual behavior between Sandusky and a boy in the showers was pitted against the image of Sandusky committing decades to helping countless troubled young boys become successful men. He was seen as an exemplary model of helping adolescents - the complete opposite of what he is seen as now. In addition, it is common for men to shower together after participating in athletics, and I know of examples where men of all ages have been in these public showers at once. While I am not trying to justify the event, I am trying to portray a logical reason as to why Paterno did not take the action everyone today believes he should have.

Paterno took this information, which he may well have questioned, and went to the men he was supposed to. One man oversaw the athletic department, and another oversaw university police (a police force with just as much authority as any other municipality police force in the country). In his mind he was taking the information to the men who could take care of it. He was not trying to cover any information up - if he was, then I'm sure he would have threatened McQuery's future with the team had he not kept silent. People are outraged that Paterno did not contact any other authorities, but not only would that have gone outside his authority and potentially threatened his employment, due to the lack of evidence had Sandusky turned out to be innocent, Paterno could have put the University danger of a major lawsuit from Sandusky for damage done by a likely highly publicized investigation. So, Paterno took the rational steps, handed off the information to the men in charge, and having no other steps to take, went back to coaching and recruiting.

Everyone cries out how Paterno should have followed up to make sure Sandusky was taken care of. The first issue with this is that wouldn't it be logical to assume, from Paterno's perspective, a lack of updates concerning the matter meant it was a non-issue? If you hear a noise from another room while in bed at night, don't you listen to hear for another, an if it's silent for a minute, won't you usually convince yourself it must have just been the house creaking? Of course, it's not a perfect metaphor, because sometimes you will go check out the noise, but usually that's because the sound was pretty serious-sounding, as in a person's voice. Well, I think Paterno "heard a less serious noise". From everything we know, he was not told something as serious as anal intercourse, and in all likelihood he believed it was just behavior he did not want going on in his shower facilities, but nothing seriously criminal.

Time went on and the men Paterno reported to then reported that information to Sandusky's charity, who he was employed by, and took away his keys to the facility. Why is it not reasonable to conclude Paterno believed appropriate actions were taken? Why is it expected that he should have acted in a fashion not in line with the information he was given and how he saw his reporting it transpire?

Additionally, you mention him lying about the 1998 investigation. From what we know Curley "touched base" with Paterno about an investigation going on into charges against Sandusky. That is all we know. To conclude he knew Sandusky was molesting a child is pure assumption. Sandusky was then exonerated of all charges, making him an innocent man. It turned out to be a minor passing issue, and is likely that it was forgotten about over the years. In addition to that, Paterno was not specifically asked if he knew about the investigation, but rather if he knew about sexual abuse charges against him. For him to have never heard of that happening in 1998 would be in line with Paterno not being told of the nature of the investigation. Again, we know he was informed of an investigation, and that is all that is known concretely. Everything alleged by Freeh based on that is simply assumption he takes as fact and shows how poorly his investigation was conducted.

You portray his disinterest with hearing about the breaking of the Grand Jury Report as a sign he cared more about football than protecting the kids Sandusky victimized. I see that as a skewing of an event to fit the argument being made. If Paterno was continuously covering for Sandusky as Freeh reported, wouldn't he show more concern when he heard it was finally discovered? Wouldn't he listen to his son and start worrying about how to protect himself? He was a football coach only 2 games away from retirement, and he was not concerned with legal actions being taken against a former coach. Does that not show he had nothing to hide?

Lastly, as I've typed way too much already, a minor note about "Paterno throwing administrators out of his house when they tried to fire him". There are multiple accounts of this, and that version sounds like the most dramatized version of all, yet for some reason people find it the most likely. The version I've heard that sounds the most likely, is that Paterno had been on the fence about retirement and the issue had been brought up before. As a man who was getting older in age, past the point many coaches retire (though not all), it was something he had considered before. He was a practical, simple man who did not bother with contracts for a large part of his career. When the team wasn't doing so well, he had again brought up retiring, and when the administrators came to his house to offer a retirement package, he had already made up his mind to stick around a few more years and turned down the offer. That is a much more realistic situation, and one I believe happened.

Well, I hope you read all this and consider it all with an open mind.

This is a wonderful, well thought out article. I am going to post the link on Facebook & ask my son to tweet the link as well. The "witch-hunt" or "lynch-mob" was created by the media frenzy, and their reporting with such a terrible bias against anything Penn State. I find it very sad and very frustrating. I do believe that the process needs to be complete, that Schultz and Curley need to have their days in court, and I believe that Spanier and the Paterno family have been maligned deliberately, without due process. Shame on Louis Freeh for alleging and concluding without complete evidence. Then again, it's familiar territory----remember the Atlanta Olympics and the man accused, wrongfully, of being the bomber. His life and reputation was shattered, by Louis Freeh.
Shame on the NCAA for believing everything that Freeh concluded, without waiting for due process.

In response to Morgan's remarks, I don't think that supporters of the truth in this are drinking the "kool aid." I do believe, however, that those who want to use Graham Spanier & Joe Paterno as the scapegoats here, should ask themselves---what of the others? In 1998, the DA who found no abuse, and dismissed the case & didn't press charges, the Dept. of Child Welfare, who didn't find abuse, the countless professionals at the Second Mile who didn't recognize anything wrong, the janitor who supposedly witnessed abuse, the high school counselor, and Governor Corbett, who took years to get this case moving. Stop blaming the big names for every mistake made. Jerry Sandusky is the monster here, not Joe Paterno or Graham Spanier. We will see, as the legal process moves forward, whether Schultz or Curley are found guilty. I would doubt it.

This is a wonderful, well thought out article. I am going to post the link on Facebook & ask my son to tweet the link as well. The "witch-hunt" or "lynch-mob" was created by the media frenzy, and their reporting with such a terrible bias against anything Penn State. I find it very sad and very frustrating. I do believe that the process needs to be complete, that Schultz and Curley need to have their days in court, and I believe that Spanier and the Paterno family have been maligned deliberately, without due process. Shame on Louis Freeh for alleging and concluding without complete evidence. Then again, it's familiar territory----remember the Atlanta Olympics and the man accused, wrongfully, of being the bomber. His life and reputation was shattered, by Louis Freeh.
Shame on the NCAA for believing everything that Freeh concluded, without waiting for due process.

In response to Morgan's remarks, I don't think that supporters of the truth in this are drinking the "kool aid." I do believe, however, that those who want to use Graham Spanier & Joe Paterno as the scapegoats here, should ask themselves---what of the others? In 1998, the DA who found no abuse, and dismissed the case & didn't press charges, the Dept. of Child Welfare, who didn't find abuse, the countless professionals at the Second Mile who didn't recognize anything wrong, the janitor who supposedly witnessed abuse, the high school counselor, and Governor Corbett, who took years to get this case moving. Stop blaming the big names for every mistake made. Jerry Sandusky is the monster here, not Joe Paterno or Graham Spanier. We will see, as the legal process moves forward, whether Schultz or Curley are found guilty. I would doubt it.

Your entire essay seems an explanation of exactly why Spanier should *not* have offered "unconditional" support to Curley and Shultz. Hiring counsel is not in any way equivalent to broadcasting one's certainty that charges are "groundless" prior to any sort of investigation or trial.

The necessity of due process is exactly the point. Offering the accused a fair opportunity to defend themselves is of course ideal, but the impulse to immediately dismiss serious charges against your colleagues simply because they are friends and coworkers? Exactly why we're in this mess.

Joe

"Yes, no one will argue that every person should be required to hold out for due process in their own personal opinions."

And, you will enforce that requirement personally?

The buzzword, "due process" is used repeatedly, and inaccurately, by those who blindly want to defend Sandusky, PSU, Paterno, law enforcement, the BOT, TSM, government agencies, and others who had responsibility and accountability and failed miserably. "Due process" is a highly emotional term which speaks directly to our desire for fairness and is our recourse to prevent dictatorship by the government. Actually, It applies to a legal process in courts of law and is called "the law of the land." It legally defined and is not based on strong emotional responses. Jerry Sandusky got due process. Curley and Schultz are getting due process. Investigations by the DOJ, DOE, USPS, FBI, Attorney General, Title IX, and others are ongoing. If charges are filed, the accused will get due process in a court of law.

What is "due process" for firing a coach? Coaching in college and professional sports is a revolving door. Coaches can be fired by their employers for any number of reasons, such as losing seasons, personality conflicts, violations, new game plans, new ideas, or just for a change, to name a few; all without "due process." The employers do not have to explain their decision to fire a coach. Nor does a coach have a legal nor personal right to "tell his side of the story" before he is fired. BTW, Paterno had over a decade to "tell his side of the story" but waited until the scandal reached the media and then he came up with lame excuses. He also negotiated a 5.5 million-dollar retirement package in July, 2011 during the grand jury investigation. PSU has honored that contract. Total payout to the Paterno family is estimated to be 13.5 million. Sounds more than fair to me.

The BOT claimed they learned of the GJI in July, 2011, although the investigation had been reported in the media in March, 2011. If you choose to believe the questionable BOT timeline, they still waited four months before firing Paterno. Not what I would call a rush to judgement.

Please stop with the emotional buzzwords--they never were applicable.

Joe,

My apology--I misunderstood your first line.

Other than that, I stand by my comment.

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