11/21/2011 10:19 am ET | Updated Jan 21, 2012

Another Side to the Penn State Story

Recent events and disclosures regarding the Penn State football program are most disturbing for several reasons. While there is no question that the assaults allegedly perpetrated by Mr. Sandusky are despicable and should, if proven, cause his imprisonment for life, and those who may have facilitated these assaults should be sanctioned if they knowingly did so, there is an equally fundamental consideration which is being ignored in the media frenzy: nothing has been proven, yet serious sanctions are being imposed on a number of persons. As a lawyer and law school teacher, I find this most disquieting and perhaps a harbinger of a broader assault on our civil liberties.

The fact is that on occasion, charges of this nature turn out to be altogether false. While this may or may not be the case regarding PSU, it should be noted that very recent statements by some of the actors, especially Mr. McQueary, at least create a basis for argument as to what happened, and who dealt with it and when.

In connection with a highly publicized case known as the Amirault case, the Wall Street Journal performed an award-winning expose of the falsity of charges of this nature. In an editorial, the WSJ pointed out (in 2004) the miscarriages of justice that sometimes happen in situations such as the PSU case, when public passions override law and common sense:

Our system isn't always immune to destructive pressures, and the child-abuse prosecutions of the 1980s were one such instance. Mr. Amirault's prosecution was driven by the passions of the times -- in this case, the belief that child predators lurked everywhere and that the child "victims" must be believed at all costs.

Along the way, the law was stood on its head. The rules of evidence were changed to accommodate the prosecution; the burden of proof was put on the accused. Four- and five-year-olds were coached to say what adults wanted to hear. All this was done in the name of virtue, with the result being the kind of catastrophic miscarriage of justice we saw in Mr. Amirault's case. There never was any truth to the charges brought against him. Nor was there anything that would, in saner times, have passed for evidence in an American courtroom.

We should all reflect on these words before rushing to judgment in the PSU case and acknowledge that passions sometimes prompt miscarriages of justice. We must hope that this is not the case with PSU and take actions to ensure that it is not.

I have no idea whether Mr. Sandusky perpetrated these heinous acts or whether Dr. Spanier, Mr. Paterno, Mr. Curley, Mr. McQueary or anyone else knowingly or recklessly facilitated or even tolerated them. I do know that in America, we are innocent until proven guilty of any allegation, whether it pertains to sexual abuse, bank robbery, securities fraud or otherwise.

I also know that before one can be found guilty or even held civilly responsible, they are entitled to tell their side of the story. I also know that Mr. Sandusky has not confessed to any crime (although his public statements to Bob Costas indicate, at best, poor judgment and revolting behavior) and Mr. McQueary has denied that he ignored the alleged wrongful acts. All we have to go on is a grand jury indictment and the old lawyers' adage that a good prosecutor can get a grand jury to indict a ham sandwich.

However, in this case, even PSU Trustees have acknowledged that public pressure caused them to dismiss Dr. Spanier and Mr. Paterno and apparently suspend Mr. McQueary, and that none of them was given any opportunity to present their side of the story, let alone continue in their positions until a bona fide adjudication could be had. "I'm not sure I can tell you specifically," board vice chair John Surma replied when asked at a packed news conference why Paterno had to be fired immediately. "In our view, we thought change now was necessary."

This situation is bad enough, but when one takes a calm look at the allegations, which are being bruited about as fact, they should be given pause. In the first place, the allegations pertain to conduct occurring 9-13 years ago. While there may be legitimate explanations for this time lapse, its existence should at least cause us to question whether it bears upon the veracity of the allegations.

Secondly, at least the portion of the allegations pertaining to 2002 actions involving Mr. Sandusky and a 10-year-old boy in a shower at the PSU football complex seem curious indeed. What was a 10-year-old doing in a college football complex at all? Placing him there causes me to wonder about the rest of the story. Even if Mr. Sandusky is the sexual predator alleged in the indictment, one wonders if he or anyone else would be stupid enough to engage in flagrantly criminal behavior in such a setting. Even if Mr. McQueary did, in fact, ignore the behavior of Mr. Sandusky, was there no one else present in the complex, who would have acted more appropriately? It seems incongruous to imagine that the only people present at the complex were Mr. Sandusky, Mr. McQueary and the 10-year-old or that other persons present ignored the conduct as well.

Third, anyone versed in today's employment law knows that unless one is a direct observer of unlawful behavior, significant legal considerations of defamation and wrongful termination come into play when an employer decides whether or not to "turn in" or even terminate an employee who may have been involved. A false accusation, or even one which is ultimately true, but leads to a plea bargain in court, may subject the employer to huge liability, not to mention destroying the life of the subject. The situation faced by Mr. Paterno, Mr. Curley and Dr. Spanier in 2002 was not quite as simple as so many having the benefit of 20/20 hindsight make it appear today.

To be clear, I am not defending Mr. Sandusky or anyone else. It is possible that evidence will eventually show that heinous crimes were committed and covered up. In this case, harsh punishment must be meted out to those responsible. However, we are nowhere close to that point, yet there are already serious sanctions being imposed and calls for 'justice' to others to vindicate victims who do not clearly exist. For us to be a society governed by the rule of law and Constitutional principles requires that cooler heads start to prevail over the calls for vigilante justice.