Great Moments In Post-Accountability

There is a passage towards the end of Michael Sokolove’s NYT Magazine cover story about Graham Spanier that is darkly comic if you’ve read the entire article:

Graham Spanier was eager to be interviewed for this article and persuaded his lawyers it was a good idea (or at least won their acquiescence). He wants to tell his story and clear his name. On the first day we were together, he said: “In all of my sleepless nights, really every night for a couple of years, when I was lying in bed, all I was doing was imagining being on the witness stand. I was telling the truth and laying it out there.”

Sokolove implies that it’s unusual that Spanier is enthusiastic about talking to him. For those who have already read Sokolove applying somewhat less of a critical eye to Spanier’s story than Richard Cohen applied to Colin Powell’s UN speech, the mystery will vanish.

Spanier, as most of you know, was indicted on eight counts related to Jerry Sandusky’s serial child molestation. Is it possible that this indictment of a very powerful figure was a baseless product of prosecutorial overreach? Sure, but it should also be clear that the bare assertions of the person under indictment are not very compelling evidence of this. Which is unfortunate, because that’s pretty much all Sokolove has.

It’s frankly a disgrace that this article was published, let alone made a cover story. Much of it is irrelevant padding inserted to bring an article with maybe 500 words of relevant content up to feature length. There’s a lot of material about how tough the indictment has been on poor Graham. There are multiple paragraphs about how Penn State is awesome at doing the things that impress people who issue arbitrary rankings of universities (especially using money to build stuff rather than keeping tuition affordable.) There is the inevitable reminder that whatever else you want to say about the program Penn State football was above average at ensuring that players were exploited according to NCAA specifications. There is a lengthy discussion of whether the NCAA had the legitimate authority to levy sanctions that you may or may not find convincing but is fundamentally irrelevant to whether the indictment of Spanier has a legitimate basis. The space the article devotes to his central thesis — Spanier is the victim of a witch hunt and should be left alone — is instructively small. This is pretty much it:

“This approach is acceptable to me,” Spanier wrote in response. “The only downside for us is if the message isn’t ‘heard’ and acted upon, and we then become vulnerable for not having reported it. But that can be assessed down the road. The approach you outline is humane and a reasonable way to proceed.”

Spanier told me that his meetings about Sandusky were brief, came amid the crush of other university business and coincided with another troubling issue — allegations that a Penn State employee had embezzled money.

“The life of a university president is you have things coming at you all day long,” he said. “It’s one crisis after another, one issue after another.”

[…]

Shouldn’t this background have made him more alert to Sandusky even if the reports he heard were nonspecific or couched in euphemism? Shouldn’t he have at least pressed for more information? He said he would have if he had been told more to begin with. “I’m an intervener,” he said. “If I see something going on in the street, in the community, I intervene. . . . If Gary Schultz or Tim Curley had said to me anything about child abuse, sexual abuse, anything criminal, even had hinted about that possibility, of course we would have said something.” The encounter in the shower, he said, was described to him as “horseplay,” which he believes came from Paterno, relating what he heard from McQueary. “I can hear Joe Paterno using that word,” he said. “I don’t think Tim and Gary made that word up. I think Joe used it.”

He said he had no memory of writing the email in response to Curley in 2001, but now regrets that he used the word “vulnerable,” which many have taken to mean that he already knew that something inappropriate or criminal had occurred. “I didn’t,” he said. “I think what it meant was that if he didn’t get the message and stop bringing boys into the locker rooms, we could be open to criticism. Obviously, in retrospect, using the word was a bad choice. But who would think that 13 years later someone would focus in on that one word?”

The shower took place in a coaches’ locker room; Spanier said he was told that it had occurred in one of Penn State’s more public locker rooms. Even so, he said: “We decided we don’t want him bringing kids into the shower again. It doesn’t look good. It doesn’t feel right.”

Spanier is still incredulous that he has been charged criminally. “What does this have to do with me?” he said at one point. “I never saw anything. I never spoke to a kid, a witness, a parent, Sandusky, McQueary, Paterno.”

As Sokolove grudgingly concedes towards the end of the article, the final point is hardly a defense of Spanier’s actions. He was at a minimum informed that Sandusky had not only showered with a young boy he was not related to on a weekend at the university but had engaged in “horseplay.” By his own admission, even under the most innocent explanation Sandusky’s actions were highly unusual and highly inappropriate. And the consequences if the explanation turned out not to be innocent — i.e. that there was a pedophile running a foundation for children at large in the community — were horrifying. And Sandusky, as Spanier seems to have known, had already been investigated once. For Spanier not to have made any effort to follow up with McQueary under these circumstances was certainly morally reprehensible, and it’s entirely possible it was also inconsistent with his legal obligations.

Spanier’s arguments about the word “vulnerable,” which Sokolove seems to buy, are similarly feeble. I’m reminded of a student who complained to a fellow TA after his answer of “Lochner v. NY” to the question of “name a case where the Supreme Court upheld a use of the state police power” was marked wrong — “how can credit for an answer be based on just one word?” A lot is being made of the word because the use of the word is highly damning. How could failing to report Sandusky make one “vulnerable” unless it was wrong?

Sokolove’s other line of defense is windy philosophizing via third parties:

Prosecutors make decisions all the time on whether to bring charges. Some are obvious — body on the street, a man standing over it with a gun. The Spanier case seems less so. He did not ask questions or show any curiosity, and only he knows why. No one went looking for the boy in the shower in 2001 or even tried to find out his name. Maybe Spanier, Schultz and Curley were as squeamish as McQueary and just as afraid to look more closely. Whatever the reasons, they did not cover themselves in glory. Whether that equates to criminal behavior is yet to be determined.

Wes Oliver, a law-school professor at Duquesne, in Pittsburgh, provided television commentary on the Sandusky trial and has been following the proceedings against Spanier. “I don’t even know what guilt means in this case,” he told me. “What exactly does it mean to fail to supervise a former coach who you happen to know brings kids to your campus? What kind of duty exists there? If anything, it’s a sin of omission. There are sins of omission for which people are punished, but I don’t know if that will happen here or if it should happen.”

First of all, Spanier is not just accused of sins of omission. Perjury is a sin of commission, and Spanier is accused of “blatant mischaracterizations to employees, board of trustee members and eventually a grand jury about his knowledge of the situation, most of it refuted by testimony from his own university attorney.” Sokolove has nothing but Spanier’s own word to refute these charges. And second, when it comes to the welfare of children some “acts of omission” are in fact clear violations of Pennsylvania law. Whether Spanier is guilty of violating these requirements has yet to be determined, but it is clearly possible for him to be guilty of a “sin of omission” and to be criminally liable, and I have no idea why it shouldn’t be.

The one serious potential argument raised by Sokolove is the delay in the proceedings against Spanier. This may be a real issue, but it depends on some factors — is the delay unusual by standards of the relevant court? Could it have been caused at least in part by defense motions? Sokolove, although he has time to write the umpteenth paragraph about the bucolic isolation of State College, can’t be bothered to actually address these questions, so it’s impossible to know whether the claim has merit or not. As he does consistently, Sokolove leaves an implication out there but doesn’t do the work to justify it.

Let’s conclude with this:

When I was in State College, Sandra Spanier was just back from Cuba, where she has been involved in restoring Hemingway’s house. “In some ways, my life is still good,” she said. “But you wake up in the morning and you look outside and think, It’s a beautiful day. And then it hits you. It’s still here. This is all still happening. You can’t get away from it.”

And how! Another figure Sokolove doesn’t mention — the 3 million smackers Spanier walked out the door with on top of his many years of high compensation. That will ease the pain. You’d think that this pay should entail more accountability — but for America’s broken elites, that’s somehow never how things work.