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
by MR. AWESOME

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.

25 comments:

  1. This is a great article. A really great article. However, the statues on Easter Island are Moai. Olmec stone heads were much rounder and in Mexico. A trifling error, not related to the gist of the article at all, but glaring to an anthropology major. Sigh.

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  2. Well, at least they didn't subject us to the ritual questioning of whether the VICTIMS did enough to avoid being raped, which one routinely encounters in the rape of adult women.

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  3. I've tried to keep up on the "who knew what" aspect of this entire situation, but it has been difficult with the massive amount of hand-waving in general.

    Did Joe Paterno really ever know that the allegations about his friend (Sandusky) were true (as true as it could be, given that Sandusky hasn't been found guilty of anything yet, of course?)

    My point here is that from what I know currently, if I were the head of an organization like Penn State (coach, etc) and one assistant coach came to me with allegations about one of my friends that I couldn't prove... why would I go to the police immediately? That would immediately kill my friendship even if the allegations were false, it would bring scrutiny on my ability as coach even if I knew nothing about what happened, it would tarnish the university even if (once again) the allegations were completely false.

    I guess my point is, if I put myself in the shoes of someone having to make the decision about what to do, there's more factors here than just "Well you just always call the police." No, if you can't prove something you don't just call the police and hope they can figure it out. That's not the way the real world works.

    I guess what I'm looking for is who actually knew what, and then to ultimately see Sandusky found guilty. From where I sit currently, there's just too many unknowns to say it's black and white at the moment.

    note: I'm not a Penn State (or Paterno) fan, just a random midwest sports enthusiast attempting to be fair.

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  4. Josh,

    I thought about making a sticking point of that during the editing, but I passed for the sake of the joke. Stabler's head really is kind of shaped like an Easter Island head, but the whole "large Olmec head" thing also has fun pop-culture baggage because of the Simpsons and Xtopalopacetl. (Or however you spell it.) THE JOKE WORKS!

    Oop, gotta go. Kitchen timer's saying my corn, manioc and beans are ready.

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  5. Perm,

    First up, you might want to check out this article from the Wall Street Journal, in which Paterno shows a pattern of believing that it's in his program's best interest to be investigated and disciplined via extralegal means for the sake of appearances.

    Second, you write:

    No, if you can't prove something you don't just call the police and hope they can figure it out. That's not the way the real world works.
    This is how the real world works. If our criminal justice system relied on untrained citizens to independently gather proof of crimes before reporting them, we could eliminate the detective division of every police force and fire most district attorneys. Citizens themselves could convene grand juries and present their evidence and indict people with their existing proof. We do a lot of things in the justice system when conduct and identity are still ambiguous. When you hear a neighbor yelling and his daughter screaming and then see her with bruises and cuts the next day, you call Child Protective Services, even without seeing the overt act of violence. When you think you see someone breaking into a neighbor's home, you call the police even though you cannot positively identify the burglar. This is the police's job. They will figure the name out for you. When someone tells you that they witnessed someone buttfucking a child, you call the police and you leave your magnifying glass and deerstalker on the desk next to your meerschaum pipe. And if you're too much of a coward to do even that, you at least tell the witness to pick up the phone and report it himself. You don't offer to unburden him of the obligation to act and then punt it up the corporate chain, slap the dust off your hands and go back to napping in a golf cart while watching kids drilling.

    Whoops, bad choice of words there.

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  6. Mobutu,

    Thanks for the response and the article link, I'll check it out tonight when I have some time to digest further.

    As far as my comment on how the world "works" I didn't intend to imply that we should all act as police officers. Rather, to use your example, from what I know thus far there may have been screaming in the house next door, the daughter might have cuts and bruises, but Paterno wasn't the neighbor in this case... he was a friend of the witness. So it's hearsay at that point, isn't it? "Hey I think my neighbor beat his daughter" isn't something that prompts me to go to the police, especially if the person he's referring to is a longtime friend/colleague who could be permanently ruined just by the mere *mention* of being involved in a crime.

    So what I wonder is this... if Mcqueary truly witnessed this, then he should be prosecuted... period. If what he saw went unreported to police, then he is in the wrong. I just don't know enough (personally) about the intermediary people, what they knew and when, to definitively say what I would have done if I had been in their shoes. (Pending my reading the WSJ article, of course.)

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  7. Note: persons posting replies to Mr. Awesome's appeal for a job will have the replies forwarded directly to him and not posted here, to prevent abuse or spamming of contact information.

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  8. Perm, a couple things --

    There were TWO eyewitnesses to Sandusky's molestation. A night janitor saw him showering naked with a child. He reported this to his shift supervisor and co-workers, but otherwise took no action. A grad student, at the time, Mark McQuery saw (allegedly) Sandusky raping a boy in the showers. In the act. He reported this to school administration, including Paterno. Otherwise, he apparently took no action, though he has since claimed he "filed a police report" somewhere. University and city police claim they have no evidence he ever filed a report.

    Second, hearsay doesn't enter the picture here. The police do not care if something is hearsay. They care if it's a lead worthy of investigation or pursuit. If you tell the police your neighbor, roommate, co-worker, whatever claims to have witnesses a gross felony against a person without calling 911, I can guarantee they will be interested to speak with you and the other party.

    Hearsay doesn't play into this at all. It's a trial practice concern. Any competent district attorney can manage witness testimony without slamming into a hearsay wall.

    Finally, McQueary probably won't be prosecuted. The U.S. recognizes (in most jursidctions) the old, old common law crime "misprison of felony," under which you can be prosecuted for withholding from the police knowledge of a crime. However, we've modified this offense. In order to be criminally liable, McQuery would have had to take active steps to derail or prevent a police investigation, such as lying to the police or concealing evidence from them. I haven't seen any evidence of that.

    Also, none of the players here seem to operate under any child abuse reporting requirement (like teachers or doctors). Unfortunately, on the basis of the facts as they stand, I don't see criminal liability for anyone but Sandusky.

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  9. Perm,

    If you have reason to believe that your friend is abusing his daughter, and you don't report it to the police, you are guilty of an ethical failure. And understandable one, maybe, but an ethical failure nonetheless. Ethics that have an "unless it's my friend" escape clause are not ethics at all.

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  10. Maybe hearsay was the incorrect word, but I keep going back to if I were in a position to destroy one of my friends... what standard of evidence would I demand before calling the cops?

    Knowing that once I called the cops, their career was ruined *even if the allegations were false.* I'm only pointing out that my standard for evidence would be higher than "I think I saw" or "I'm not sure."

    I guess I just see Paterno as someone who was between a rock and a throbbing hard place. Destroy a friend without having witnessed anything OR report it up to his superiors for them to investigate. I am not sure I see fault in the latter, if he knew that his superiors were obligated to go to the police if the investigation turned up any evidence.

    It just seems too easy for everyone to condemn anyone aware of the allegations, even though the reality of pointing the finger brings a waterfall of shit onto you and everyone around you. I think there are much fewer people that would actually run straight to the cops than what we'd care to admit.

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  11. @Perm: You may be right about fewer people actually going to the police than we'd like to imagine. But that's irrelevant: all it means is that lots of people have a hard time behaving ethically. It doesn't let individuals off the hook.

    On the standard of evidence thing: McQueary allegedly SAW SANDUSKY RAPING A KID. With his EYES, he saw it. That's not a high enough standard of evidence for you? The failure to call the police starts there.

    Paterno must have been aware of the allegations against Sandusky for years. I can see myself not calling 911 if I heard, from one source, about a dear friend committing one violent crime. Turn that into separate allegations over several years? I have completely failed as a person if I still haven't gone to the police. At that point the possibility that I am willingly enabling my friend to continue to commit violent crimes outweighs the possibility that multiple people who don't know each other have independently decided to assassinate my friend's character for no apparent reason.

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  12. Unrelated: Can anyone comment on ESPN's apparent plagiarism of today's AP article about Bernie Fine? They say, "Information from the Associated Press was used in this report." But it appears that, in fact, several paragraphs from the AP report were actually copy-pasted verbatim into ESPN's article. Is it standard journalistic practice to cite other articles that way?

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  13. @Mister Suss: Right, I think I answered that above... Mcqueary should be held directly liable for not calling the police. That's no different than watching a murder or robbery take place and refusing to make the call.

    Now, as if you say, Paterno was knowledgeable on numerous accusations from numerous independent (unconnected) sources, then that starts to warrant more action.

    I'm really curious to see if any of the uppers at Penn State (AD and President) will testify in court, and what their reasoning behind staying silent was. Would be also interesting to see if the Ray Gricar guy had any notes about why he refused to press charges.

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  14. When holding journalists accountable, it is best to 2x check names like "Mark McQueary" in the opening paragraph.

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  15. Perm, you're starting to make me suspect I've just discovered what David Brooks does on a slow news day when he can't referee a ping-pong match conducted on only one half of a table between two people playing in bad faith.

    I guess I just see Paterno as someone who was between a rock and a throbbing hard place. Destroy a friend without having witnessed anything OR report it up to his superiors for them to investigate. I am not sure I see fault in the latter, if he knew that his superiors were obligated to go to the police if the investigation turned up any evidence.
    This doesn't matter. A straightforward allegation of directly witnessing anal rape should not be brushed off. Brushing it off in this case is even more questionable, since we know that Paterno thought this guy had enough character to be employed as a graduate assistant on the team and be in charge of the training, education and conduct of young men. Presumably his judgment was sound. As such, Paterno's ethical obligation was to urge him to go to the police or call the police and tell them that they needed to speak to someone who witnessed a serious violent crime. Doing so wouldn't have made him a witness or given the story his approval, nor would it have ruined a career there. It would have begun an investigation. Period.

    He didn't do that. He failed.

    No hypotheticals can be spun from these essentials that abrogate his ethical duty. He didn't need extra data. He didn't lack some special expertise to judge whether a child being sodomized is bad according to university bylaws. Instead, he punted the decision up the chain and, like Pilate, went to cleanse himself of responsibility.

    But... even if you want to continue to try to sidestep this very terminal part of the ethical discussion, even if you want to justify Paterno having exempted himself from the ethical decision and discouraging the graduate assistant from making the ethical decision by putting it in the hands of the University higher-ups — even if he somehow lost all ethical obligation when he passed the buck to them — his responsibility resumed the moment they failed to act. And he had years and years to correct his, his assistant's and the University's ethical failure. He didn't. Full stop.

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  16. When holding journalists accountable, it is best to 2x check names like "Mark McQueary" in the opening paragraph.
    Thank you. This has been corrected. This actually was edited a couple of times. Unfortunately, sometimes eyes glaze over typos, especially in proper names.

    That said I'll take a typo on a blog, with one editor, over the systemic critical cowardice of some of the most-watched journalism broadcasts in the country, produced by a staff of several hundreds.

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  17. One point about Paterno's report to his "superiors." We should acknowledge that in fact, the Athletic Director was Paterno's superior in name only. Paterno did not answer to him, to the VP of Finance or even to the President of the University. Remember that the President and members of the Board of Trustees asked him to resign more than once in the years prior, he refused, and faced no consequences? Paterno was the most powerful person at the University, bar none. This makes the ethical violation far more serious in my view. Paterno was no bureaucratic underling who had to rely on the bosses to implement investigations and disciplinary proceedings. His word was law.

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  18. "When holding journalists accountable, it is best to 2x check names like "Mark McQueary" in the opening paragraph."

    ahahahahahahahahahahahahaha you think this is a valid comment to make.

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  19. @Mobutu - Characterize me how you wish, I don't feel I'm sidestepping anything or apologizing for Paterno. My bullshit detector raises its antenna anytime there is a horde of WASPs shaking their heads and wagging their fingers at a moral issue.

    In this particular case, many of the same people are funneling millions (billions.. I have no idea) dollars into the RCC, the only institution in the history of mankind to make child rape a hierarchical, systemic and *documented* practice. Yet we still pretend they are some kind of moral authority. When this shithead pope dies, the news stations will all point their cameras at a smokestack in Rome to wait for God(tm) to divinely select our next morally infallible mouthpiece.

    I read the WSJ article, and it read to me like pretty much any large NCAA football program's internal laundry list might read. I think that's another discussion altogether, on how/if we pay athletes, when we can stop calling them "students" etc, etc.

    For Paterno specifically, I see two options... he's either morally vacant OR he was doing what many would do in s similar position, which is hedge and protect the familiar.

    The best reason I see to fire him is how outdated his opinions are regarding the NCAA "overstepping" their bounds by increasing academic requirements and actually requiring off-campus incidents to be reported. That pretty much says to me he's a fossil operating in a world that has passed him by.

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  20. Perm-

    What the fuck?

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  21. I seem to recall that the police were contacted at some point - maybe not immediately through 911 as you call for but I am pretty sure they had a file on Sandusky before posturing about their outrage [similar to the reputation management engaged in by the college]. But I could be wrong.

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  22. Anonymous -

    In Mr. Awesome's first followup comment he mentions:

    "Otherwise, [McQueary] apparently took no action, though he has since claimed he "filed a police report" somewhere. University and city police claim they have no evidence he ever filed a report."

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  23. Perm said:

    "In this particular case, many of the same people are funneling millions (billions.. I have no idea) dollars into the RCC, the only institution in the history of mankind to make child rape a hierarchical, systemic and *documented* practice."

    Riverside Community College has institutionalized child rape? I thought it was the most dynamic and diverse college in the Inland Empire, serving more than 19,000 students each semester, providing them with a wide range of choices including associate's degree programs, transfer to a four-year college or university, or career certificates that prepare them to enter the workforce. I'm shocked to learn of their systematic sodomy.

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  24. Perm said...
Characterize me how you wish, I don't feel I'm sidestepping anything or apologizing for Paterno.
    
All of your posts to this point have provided passive sidestepping for Paterno. If you do work like this as an accidental apologist, you should run the Paterno street team. Other people might blunder into the job with one or two comments, but you're committed to the task without even knowing it.


    My bullshit detector raises its antenna anytime there is a horde of WASPs shaking their heads and wagging their fingers at a moral issue.
    
Your bullshit detector is broken if it doesn't signal alarm at your arguments and the way they keep pushing back the goalposts, minimizing legitimate criticism and rendering everything an airless place of "who knows?" wonder. But, whatever, you're making a point about WASPs or something. If they're talking about it, validity flies out the window, I guess. WASPs, smh.





    In this particular case, many of the same people are funneling millions (billions.. I have no idea) dollars into the RCC, the only institution in the history of mankind to make child rape a hierarchical, systemic and *documented* practice. 
"
    Many of the same people"? Are you still referring to WASPs, your horrible enemy in your prior point? Why would protestants funnel money to the Catholic church? How would that even make sense?



    


For Paterno specifically, I see two options... he's either morally vacant OR he was doing what many would do in s similar position, which is hedge and protect the familiar.
    That makes him morally vacant.







    The best reason I see to fire him is how outdated his opinions are regarding the NCAA "overstepping" their bounds by increasing academic requirements and actually requiring off-campus incidents to be reported. That pretty much says to me he's a fossil operating in a world that has passed him by.
    Cool. So, he's a morally vacant tool of the WASPs' control of the global Roman Catholic Church, but he should be fired for an inability to update his coaching and institutional control in a way that adapts to NCAA governance. Ugh. Please stop posting.

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  25. "My bullshit detector raises its antenna anytime there is a horde of WASPs shaking their heads and wagging their fingers at a moral issue."

    South Park is not an ideology, shitformorals.

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Et tu, Mr. Destructo? is a politics, sports and media blog whose purpose is to tell jokes or be really right about things. All of us have real jobs and don't need the hassle that telling jokes here might occasion, which is why some contributors find it more tasteful to pretend to be dead mass murderers.