Fordham Law


Penn State: If Joe Paterno hasn't been charged, why did he hire a lawyer?

James Cohen in The Christian Science Monitor, November 14, 2011

Media Source

So far former Penn State coach Joe Paterno has not been charged with any crime in the child sex-abuse case that has shocked the nation.

So, why has Mr. Paterno hired a high-profile white collar criminal defense lawyer?

Legal experts say Paterno’s hiring of J. Sedwick “Wick” Sollers, a partner at the Washington law firm King & Spaulding, makes a lot of sense.

Paterno, who was fired by the university’s Board of Trustees last week, is likely to be called as a witness in the cases against former coach Jerry Sandusky, who is charged with 40 counts of sexual assault of eight children over 15 years, and former Penn State senior executive Gary Schultz and former athletic director Tim Curley, both charged with failing to report alleged abuse and lying to the grand jury. All three men say they are innocent.

“I think it’s only common sense for Paterno to have a lawyer,” says James Keneally, a partner at Kelley Drye & Warren, a New York law firm. “I’m only surprised he did not do it sooner.”

Last Friday, Paterno’s son, Scott, in a statement announcing the hiring of Mr. Sollers, said, “My father's desire is for the truth to be uncovered, and he will work with his lawyers to that end.”

At the moment, outside lawyers don’t believe that Paterno is a target for the district attorney. Unlike the two Penn State officials, Paterno’s legal obligation apparently was not to report any alleged incidents to the police, says James Cohen, an associate professor of law at Fordham Law School in New York.

“His obligation was to report up, not out,” says Mr. Cohen. “He apparently did that.”

Paterno’s involvement goes back to a 2002 incident when a graduate assistant says he told him he had witnessed Mr. Sandusky assaulting a young boy in the shower room. Paterno apparently called the athletic director, Mr. Curley.

In addition, Mr. Keneally says Paterno should have a lawyer since there is nothing to stop the district attorney from continuing to investigate the situation. There could be another grand jury or perhaps additional charges brought against the Penn State officials. In addition, other alleged victims might come forward.

“One of the first calls the attorney makes is to the district attorney to try to find out if your client is considered a witness or a target or something in the middle called a subject,” explains Keneally.

He says someone like Paterno could become a subject of a grand jury if they have information relating to the crime in question. For example, there could be pertinent emails with Paterno’s name copied on them or maybe he sat in on a phone call where the incidents were discussed. It does not mean he committed a crime but he may have information that can clarify what happened.

“Naming someone a subject gives the district attorney the greatest amount of waffling room,” Keneally says.

In addition, Penn State has hired legal counsel to do its own internal investigation. Although Penn State is not legally required to turn over anything pertinent unless it receives a subpoena, they are likely to cooperate with authorities, says Stanley Twardy, a former federal prosecutor, now a partner at Day Pitney in Stamford, Ct.

He says what investigators will be looking at is whether or not the university knew about any of the sexual assaults. “What did they know, and when did they know it,” he says.

Since Penn State receives federal grants, the university is also likely to be investigated by the Department of Education’s inspector general, says Mr. Twardy.

In fact, further federal involvement is possible since one of the alleged assaults took place in Texas when Penn State was playing in the Alamo Bowl.

“The Feds could go after Sandusky for taking kids across state lines,” says Twardy, “or the prosecutors in Texas could file charges.” On Friday, a law-enforcement official in Texas told a radio station that San Antonio police were looking into allegations that a sexual assault of a minor took place when Penn State went to the Alamo Bowl in 1999.

Separately, on Monday, the president of the Second Mile charity formed by Sandusky resigned. According to the indictment of Sandusky, the former coach used the charity, which helped less fortunate children, to find victims. Sandusky has not been involved with the charity since 2008, when he informed the charity he was under investigation.

Jack Raykovitz, said he was resigning as the Second Mile president in the hopes it would help restore faith in the charity’s mission.