Tuesday, November 22, 2011

Penn State: 'Did They Do Enough?'

Note: unlike many guest pieces on Et tu, Mr. Destructo? today's article comes from a real, live person: the mysterious Mr. Awesome, an underemployed law school graduate. He wants a job, very badly. He will also do part-time writing or editing work. He would like to be paid money. He would also enjoy health insurance, but nothing fancy. He fears nothing and has great credentials.

Pretend Moral Quandaries for People Who Don't Know Anything

From the outset, news coverage of the Penn State scandal has baffled me. Like all good law students, I sat through Legal Ethics 101. The practices and procedures of internal reporting requirements are burned into my brain. I saw correspondents and talking heads going on about whether Joe Paterno, Mike McQueary, et al "did enough" by internally reporting these allegations in and through the Penn State bureaucracy.

I thought to myself, "Self, this is a corporate lawyer question. Why are these journalists asking corporate lawyer questions?" This news coverage confused me, gave me distorted, sideways flashbacks to the legal ethics course, only with everything just slightly off — like talking to an old friend in a dream, and he was an accomplice to decades of rape.

Corporate lawyers labor under the attorney-client privilege and the duty of confidentiality. These professional obligations bind them from disclosing their corporate clients' malfeasance directly to the authorities, which would jeopardize any potential investigation on evidentiary grounds, and destroy their professional careers. Instead, they are bound to report violations by corporate employees up through the corporate hierarchy, all the way to boards of directors or trustees, and then out to the police only when doing so fails to disrupt, prevent or end the unlawful conduct.

But none of the principals involved here are corporate lawyers. None of them has any ethical duty of confidentiality toward Penn State and certainly not toward Sandusky. They have absolutely no ethical, moral or legal basis for not immediately dialing 911 after witnessing the rape, or hearing about it secondhand. Grad students have no professional obligations against disclosure. There is no football-coach privilege. The ethical football coach can and often must disclose your failure to give 110%.

And Sandusky's alleged conduct doesn't even implicate the school. He was an individual. His alleged crimes are individual criminal felonies. Indeed, his crimes only began to implicate Penn State after Penn State officials chose to sit on their hands for years on end. If a corporate lawyer walks into the company bathroom and sees the VP of Marketing raping a child, that lawyer calls the cops.

Hell, even if that lawyer represented the VP of Marketing as an individual client, that lawyer calls the cops. In every state, lawyers must report current, imminent or ongoing serious crimes against the person committed by their clients — even their individual clients. Lawyer ethics can get tricky when the crime is in the past or at least somewhat minor. But there’s no tricky ethical quandary when a lawyer personally witnesses a rape, or has reason to know about the ongoing conduct of a serial predator. That lawyer calls the police.

And yet, I distinctly heard Diane Sawyer's soapy voice quaver up to me from the TV set and slink, squishily, into to my ears. "Did they do enough?" she asked. Everyone kept asking, "Did they do enough?" in the very highest tones of rhetorical question, as though there were no definitive answer, as though the question were so heavy with the shrugged weight of unknowable imponderables that we may never really know whether they did enough. As though they were asking, "What does it really mean to be enough, man?"

Calling 911 is enough. Not calling 911 is not enough. We have an actual phone line you can call into, directly, day or night, and report violent crimes. We pay people money to sit at desks and field these calls. We devote considerable infrastructure toward this end, to ensure that there is no question whether anyone ever "did enough." We have defined "enough."

We go through all that effort to spare ourselves just this sort of handwringing uncertainty. But the moment an institutional player chooses to sacrifice the welfare of others to safeguard his or her position and prestige, the Diane Sawyers of the world come down with a morbid case of the warbled hazies. They started babbling, without foundation and without a clue, about legalistic verbiage. They struggled, mightily, to find a formal ethical standard which Paterno et al might satisfy after they failed so completely at basic morality.

This is especially perverse because everyone involved in this case knows for a certainty that Penn State's stable of morally inadequate failures did not do enough. Sandusky's alleged victims know, suffering years of sexual assault facilitated by Penn State's hideous culture of whispering. The Penn State administration certainly knows, as it spasms about firing and suspending people in a vain attempt to get ahead of this public relations crisis and limit its civil liability. And, of course, Sandusky knew they didn't do enough. He went years without arrest after allegedly being caught in the act of child molestation not once but twice.

It is so commonplace for our mainstream journalist establishment to fail to know what everyone knows. Their purpose doesn't seem to be answering questions, but rather multiplying them. Unfortunately, they ask tremendously stupid questions, and they fail to elicit meaningful answers to those tremendously stupid questions. Like playing a game of telephone with a team of skeptic aphasics, they whisper a stupid question, and they route it around the squad. The final product emerges so dumb and meaningless that it would stand contrary to common sense as a statement. But of course, it's never a statement. It's always a question. In the past, they asked themselves, "Did U.S. officials commit torture?" Now they ask, "Did they do enough?"

Even an archetypal Law and Order: SVU villain can muster a more convincing patina of moral ambiguity and arguable legitimacy. Maybe I've watched that show too much over the years. But seeing those TV talking heads gyre and gimble around their pretend legal issue, Det. Stabler's giant balding head rose up in my mind's eye, monolithic, like an Olmec monument overlooking Easter Island. His eyes were glaring, clenched harder than his jaw. He spoke to me. "No," said Det. Stabler. "No. Nothing is not enough."

No, Diane Sawyer, they did not do enough. Neither did you.