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Analysis: Paterno could have been indicted if he had lived

NBC's Bob Costas says Joe Paterno's reputation can never fully recover from the Penn State sexual abuse scandal, and now the NCAA plans to step up their investigation.

The Freeh Report is a scathing indictment, to speak colloquially, of officials at Penn State. But it could also preview actual indictments against Graham Spanier, Tim Curley, and Gary Schultz, key Penn State officials at the time Jerry Sandusky's sex abuse of minors was first being reported. And if Joe Paterno was still alive, his name could easily be added to that list.


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The report describes many of the facts those following the case already knew, but the facts were described in a way that very clearly maps onto the elements of crimes.

The report finds that senior officials at Penn State had no concern about the welfare of at least one victim of Sandusky's crimes and allowed Sandusky continued access to the campus, where he was able to continue to perpetrate his crimes.


Paterno, Curley, Schultz, and Spanier were aware of an investigation about improper conduct with Sandusky in a shower with a young boy in 1998. Then, when they learned from Michael McQueary that another incident occurred -- and this time much more graphic details were provided -- they only asked Sandusky not to bring his "guests" into Penn State showers.

Report: Penn State president, Paterno concealed facts about sex abuse

Most substantially, the report observes, not only did Penn State officials not attempt to learn this young man's name to see if he had been harmed, they actually placed him in danger by informing Sandusky that McQueary had seen them in the shower together. In effect, university officials tipped off Sandusky to a potential child witness against him. Sandusky could have threatened the boy -- or worse -- to ensure his silence. Or Sandusky could have merely taken out his rage at being discovered on this young man he saw as the reason for the discovery.

By not reporting Sandusky's activities and allowing him on the campus after these incidents, university officials essentially assisted Sandusky in his crimes. As the report poignantly states, university officials gave him access to the university and the trappings of a top college football program. The officials thus "provided Sandusky with the very currency that enabled him to attract his victims."

As prosecutors decide their next move, the Freeh Report offers a description of facts tailor-made for an indictment for endangering the welfare of a minor. It provides perhaps even more.

Typically, to conspire to commit a crime or to aid and abet a crime, you have to desire that the crime occur. No one argues that Penn State officials wanted Sandusky to rape boys. Courts, however, are beginning to recognize that for very serious crimes, if you take an action that you know assists the completion of that crime, you may well be legally responsible as a conspirator, aider or abettor. 

If prosecutors elect to use the trend in modern conspiracy and complicity law to bring indictments in this case, the perjury and failure to report charges against Curley and Schultz will seem like minor offenses in hindsight.  And the Freeh Report gives prosecutors the ammunition to do just that.  

The author of this piece is an NBC News legal analyst and professor at Duquesne Law School.

The full investigative report by Louis Freeh is available in this PDF file.

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