The immediate story being covered by this site is the attack on the law license of Don Bailey, and the damages and injuries being suffered by his clients, as reflected in the unprecedented filings that have recently been made, and as discussed in our November 5, 2011 post. The primary purpose of this site, however, as set forth in our Welcome page, is to address the condition of the legal system, lawyers and courts, in Pennsylvania, and central Pennsylvania, in particular. No better context can be set to study the condition of that system than that presented, not only by the Sandusky scandal, but by the role of Penn State and its attorneys in the courts. The conditions of secrecy and control that led to the Sandusky travesty are ultimately permitted or rebuked by the courts, particularly the federal courts, whose power is immense in regulating cultural and political climates. Penn State and its lawyers have had remarkable success in the federal courts, notwithstanding evidence of record, examples of which we will bring you, that show similar patterns of secrecy, sometimes to ruthless degrees, that demonstrate that control. For now, we comment on the Sandusky case.
The indictment of Jerry Sandusky notes that in 1998, allegations of misconduct were reported to Wendell Courtney. This did not surface until 2011. Courtney is a partner in McQuaide, Blasko, a State College law firm, with a tradition at Penn State more enduring than Joe Paterno. Courtney has also been counsel for Sandusky’s Second Mile organization. McQuaide, Blasko handles most, if not all, of the civil rights and related litigation in the state and federal courts against Penn State. A McQuaide partner, and prolific litigator, James Horne, is the current president of the Middle District Federal Bar Association, a position that requires close work with President Judge Kane, and Conner and Jones as well. He was nominated and installed as president between 2009 and 2011. The investigation under Tom Corbett is believed to have begun in 2009, then there was a hiatus until after Corbett was elected governor, and the investigative grand jury resumed in 2011.
In 1999, Sandusky retired, and the renowned coach and heir-apparent to Paterno, then only 55 years old, disappeared from the scene. Paterno recalls a meeting with Sandusky in 1998 where he informed Sandusky that he would not become the head football coach at Penn State. Sandusky was a hot nationwide commodity, with talk even of coaching in the NFL, and could seemingly have written his own ticket, but he never coached again. There is no mention of what Wendell Courtney did with the information he was provided in 1998, and what, if any, relationship it bore to the end of Sandusky’s illustrious coaching career, at its zenith.
In 2002, Joe Paterno reported information he received from a graduate assistant about the misbehavior of Sandusky to the athletic director. Although not expressly stated, it is reasonable to assume that the information was also communicated to counsel for both Penn State and Second Mile – the incident was believed to involve one of the Second Mile youths. Corbett later became Attorney General. No action was taken until 2011 despite the fact that the graduate assistant had witnessed a graphic violation of a child by a legendary coach on the staff of THE legendary coach, at Pennsylvania’s most prominent public institution in 2002. Additional violations allegedly occurred, again per the grand jury report, in 2005-06 and 2008. It is abundantly clear that there was information of reprehensible criminal activity concealed in 1998 by Wendell Courtney, and that there was additional clear and unequivocal evidence of similarly graphic criminal activity concealed in 2002, and no real inquiry into how this concealment was allowed to happen. Untold numbers of children were allegedly violated by a known predator, and a lawyer could have stopped it – a lawyer closely-connected to the courts.
It was not again until 2008 that matters were reported publicly about Sandusky, but, conspicuously, these reports did not come from anyone in the Penn State circle. These reports came from a rural Pennsylvania high school football coach who had received information concerning some very disturbing behavior – the kind of behavior known to Courtney in 1998, and to him and many Penn State administrators in 2002. It is believed that, through the advice of attorneys, an institutional decision was made to keep the Sandusky secret a secret forever, and that but-for the report from the high school outside of Penn State’s control, the facts would have continued to be engineered to conceal the truth, letting Sandusky continue to molest children, if that is what happened, as long as it was “not on our campus”. The implications of a secret of this nature are unspeakable here. The matter resurfaced in 2008, and again, even under the watchful eye of our then-Attorney General Tom Corbett, was allowed to go into a hiatus until after he became governor. Corbett, also an attorney, has some more pointed questions to answer too. Did Spanier and others contribute to his campaign? Why the hiatus in the investigation of a child predator? Were there any victims during that hiatus? Etcetera.
The relevant point to this post relates to the principle of “acculturation” in the legal system. In the kids-for-cash scandal, the element of acculturation was specifically cited as an obstacle to investigating the breakdown in the courts. This was mentioned in Bailey’s King’s Bench Petition (see Bailey docket post). It relates to the point raised by Bailey throughout that skewed loyalties motivated by politics, status, and even personal relationships, have gravely compromised equal access to justice. This climate of acculturation, where loyalties are to the power structures which sustain the attorneys, slowly allows attorneys to turn a blind eye here and a blind eye there to actions that would otherwise dictate more direct intervention, in service to the “institution”, and the power structures that maintain it. These are not easy things to negotiate legally, and professionally, and demonstrate why the role of the attorney, and service of that role with integrity, is so vital. When attorneys grow up professionally through these systems, they fight to maintain their personal positions, among service to other loyalties, and are acculturated to protect much, much more than the specific interest of their client in every cause at issue. The Sandusky tragedy unfortunately illustrates the harm that can result. We will continue provide you with examples of this principle, as we already have. This is the essence of the problem in Pennsylvania.
Again, it is likely that Paterno at some point did convey the information he received to an attorney in 2002. The attorney/client privilege, a vital individual protection in a system with integrity, may limit any ability to know much more than this. To illustrate the point of this post, however, we will assume that such communication occurred. If Paterno communicated to counsel what he testified to the grand jury, it is reasonable that Paterno was informed that he has satisfied his legal obligations. This is what the grand jury concluded. This is where the acculturation comes into play. In 2002, there would already have been something to protect – the 1998 secret – which was kept to protect the institution and power structures. The 2002 information threatened the 1998 secret, which institutionally demanded be kept secret for the same reasons. Counsel with an institutional secret to protect would naturally instruct the purveyor of the information that since his legal duty had been satisfied, he need not and should not discuss it again with anyone, and that the attorney would take all action deemed appropriate. Reasonable persons would heed that advice, trusting that they had placed the information in the right hands – their attorney. Through this dynamic, if it is accurate, numerous crimes of the most heinous nature imaginable had now been covered up, and numerous more were allowed to happen. Paterno, McQueary, and others surely did not forget what they had seen and heard, and these things were left to fester, and whether, over time, they had a duty to follow up is a moot point because the climate had been set by the institutional secret. The longer such secrets are kept by the individual, the more daunting the prospect of being the one person to bring down the institution. This is surely not the only such secret maintained by Penn State and its lawyers, and this is how cultural tones are set.
The hallmark of the climate of acculturation is secrecy, and secrecy is the theme of whistle blower litigation, and other civil rights litigation. Penn State dominates the culture of central Pennsylvania, and the federal court judges in Harrisburg have sprung forth from this same climate of acculturation, through state political circles. These courts have demonstrably protected, at least tolerated, efforts to conceal misconduct by state actors and their attorneys. This is the “good old boys” network, and Penn State and its lawyers are big players in that network. The good old boys network is what has given rise to the civil rights law network, and we believe both networks are working toward competing principles – equal access to justice for all in the latter case, perversion of justice for a select few in the former. In the Sandusky case, the good old boys network has caused grievous harm to untold numbers of innocent children, and the civil rights law network will continue to shine the light on the conditions that allowed it to happen. We will bring you specific material relating to Penn State, and other matters that touch upon our overall theme, as this mission continues to be fulfilled.
Please read on about the unprecedented action taken by Don Bailey’s clients, and allow this post provide you with some context as to why Don Bailey, and the clients he represents, are not treated with favor, as we have suggested, and has Don has suggested for years.