(Updated) Not So Fast On Joe Paterno

Pennsylvania lawyers are no doubt sitting by their phones, hoping that someone will call to report that they, too, were a victim of Jerry Sandusky’s lust. There’s great money to be made in claims of child sex abuse. Just ask the Catholic Church, which has paid claimants in a series of high-price settlements of child-sex claims. Big institutions have deep pockets and public relations departments that care about image.

Sandusky was for many years defense coordinator for the football team at Pennsylvania State University. He retired in 1999, but retained an office and full access to campus athletic facilities. He also was a principal in a charitable enterprise call the Second Mile. The group’s goal was to provide opportunities to disadvantaged children.

According to a report from a Pennsylvania grand jury, Sandusky is also a pederast. He used Penn State’s facilities to sexually assault at least eight young boys, and was once observed sodomizing a child in the showers. Shocked university employees reported what they saw to their superiors, who apparently neither investigated the claims in any meaningful way, nor suggested to Sandusky that he avoid the campus for his future trysts.

Sandusky now faces criminal charges. Two senior Penn State administrators are now charged with perjury for lying to the grand jury investigating this sordid mess. And the world is calling for head coach football Joe Paterno to resign. Paterno, the headhunters say, should have done more. He stood by while boys were abused.

Joe Paterno is a legendary presence in college football. He has won more games  as a head coach than anyone else in the history of Division I football. At 84, he has been at the Penn State helm for decades. When other big-time college football programs transformed themselves into little more than forced-labor camps for NFL-wannabes, Paterno insisted his athletes go to class. Until recently, he was regarded as one of the good guys.

All that is at risk now. The university is rumored to be discussing how to ease him out. While students protested on campus last night to show support for JoePa, editorialists at various Pennsylvania newspapers have called for his resignation. The white-hot flames of hysteria have been fanned, and now threaten to consume all they touch.

One needn’t condone child molestation to defend Joe Paterno, or at least to insist that proof be marshaled that he should be run out of town on a rail. 

Pennsylvania state police commissioner Frank Noonan asserts that Paterno fulfilled his legal duty by reporting what he had been told about Sandusky’s behavior to senior university officials. There is no claim Paterno broke the law. But Noonan, a police officer, claims Paterno violated a moral duty by not going to the police himself. “I think you have a moral responsibility to call us.”

Noonan is playing to the peanut galleries in a dangerous way. Police officers aren’t social workers, moral theorists, or, God help us, priests. Their work is not the care of souls. Theirs is the mundane work of enforcing penal codes, not moral codes. When I hear a police officer state that I have a moral duty to cooperate with them, I shudder. I don’t want a man with handcuffs and a billy club policing my conscience. Police officers, never let us forget, are trained that it is all right for them to lie and to deceive to enforce the law. They come to the enforcement of the law with unclean hands.

The law demonizes those who commit sexual offenses against children. In Pennsylvania, for example, there is a special statute of limitations for child sex claims. A complaining witness has until their fiftieth birthday to come forward. 

I suspect many young, and now not so young, men will now claim victimhood. And if the civil litigation on behalf of children abused by priests is any guide, there will be great expectations about what there is to be gained by coming forward.

But unlike the Church, which paid untold millions to settle claims, the state of Pennsylvania is not obliged to pay one red cent, even though senior university administrators knew, or should have known, their campus was being used as sodomite’s retreat. That’s because the university is a state entity. It enjoys sovereign immunity from claims for money damages.

So here is where the moralizing at Penn State confronts an acid test. Does the board, does the state legislature, believe the university failed to act in a way that caused harm? Then let it set aside $100 million or so from the university’s endowment to pay the inevitable claims, and waive a defense of sovereign immunity when plaintiffs’ lawyers start filing writs. That would be putting their money in the general vicinity of their mouths.

Or will the university and the state take the cheap and easy route: castigating anyone within arm’s reach of Sandusky, but holding on to every red cent the school’s football program generated? 

I am not sure Joe Paterno needs to be crucified on a cross of self-righteous indignation. I worry that doing so is mere symbolism, a cheap substitute for real accountability by the officials at what I cannot help but call Sodom State. I’m still rooting for JoePa, although with reservations. I hope he will at least be permitted to complete this season and that he will then be given a chance to clear his name in formal hearings. He is entitled to that much. He did not assault a child.

[AP sources report that Paterno has decided to retire at the end of this season. The university should honor his decision, and not force the issue.]

Let's see how true the moral compass at Sodom State.


U.S. v. Jones: Can Digital Sheep Expect Privacy?

It comes as a surprise to many people to learn that the federal courts do not recognize a right to privacy as a matter of constitutional law. But it is true. In large part, that is because at the time the Constitution was drafted, few would have thought it necessary to include such a right in the list of those protected by the Bill of Rights, the first ten amendments to the Constitution. The federal government was a comparatively weak and puny thing in that era; it was regarded as one of limited, or enumerated, powers. It did not have the authority to act unless that authority had been granted to it.

Times have changed. Today’s federal government asserts power broadly, and over increasing areas of our lives. The focus of constitutional law seems to have shifted. The government now behaves as though it has the power to do as it pleases unless and until it runs into an explicit constitutional prohibition.

Tuesday’s Supreme Court argument in the case of United States v. Jones will provide the Court with an opportunity to revisit privacy, and the limits of government authority. The case asks whether police officers are required to get a search warrant before attaching a GPS monitor to a person’s car, thereby acquiring the means to track a person’s movements indefinitely. Not surprisingly, the Justice Department says it has such a power.

Federalism maintains that different governments have different powers: The states have a general police power, or, as lawyers sometimes refer to it, a residual power, to do all that is necessary to assure the health, education and welfare of its citizens. Federal power, by contrast, is supposed to be limited to those named, or enumerated, in the federal Constitution. During the twentieth century, the lines between state and federal power were gradually erased. Today’s federal government asserts broad and sweeping powers; the states, dependent on federal revenue to survive, are little more than administrative units of a larger federal government.

In the Jones case, law enforcement officers wanted to develop evidence against a suspected drug dealer. So they attached a global positioning satellite device to his car, without a warrant, and unbeknownst to the dealer. Officers tracked his movements by means of remote satellite devices, then got warrants to search the locations he visited. They found a large stash of narcotics in cash. Jones was convicted and sentenced to life in prison. Similar tracking devices have been used to track animal rights activists.

At his trial, Jones’ lawyers tried to persuade the judge that attaching the electronic device to his car violated his Fourth Amendment rights. That amendment prohibits the government from engaging in unreasonable searches and seizures of a person, their home, their papers and their effects. The lower court concluded that electronic monitoring does not violate the Fourth Amendment. The Supreme Court will now review that decision.

Popular folklore in the United States suggests that a person armed with a copy of the federal Constitution has "rights" that are somehow inviolate and capable of being enforced on the spot. I’ve had potential clients come to see me to complain that their Constitutional rights have been violated. They recite chapter and verse of the document and act as though the words of the text should tumble right off the page and enforce themselves. It just isn’t that simple.

The Constitution is not self-effectuating. It need to be interpreted and applied to the case or controversy requiring decision. All judges are activists when interpreting the Constitution, and this is nowhere so clear as in the case of the Fourth Amendment.

The traditional analysis used for examining claims of Fourth Amendment violations requires a person to show two things: first, that they have an expectation of privacy that the government breached, and second that their individual expectation is one that society as a whole is prepared to regard as reasonable. This two-part test is not part of the Constitution itself. It is legal doctrine applied by the Supreme Court in examining Fourth Amendment claims.

The test evolved in response to by now antiquated technology. A bookmaker used a telephone booth to make a call. Law enforcement agents had placed an eavesdropping device on the outside of the phone booth to record the call. The Supreme Court said that whatever expectations the man himself had about the privacy of his call, society at large was not prepared to regard his expectations as reasonable. Hence, no Fourth Amendment violation.

In the Jones case, the government argues that no one has an expectation of privacy in the movements they make in public. And even if someone were foolish enough to assert such a claim, it is a claim the rest of us regard as unreasonable. In a digital world we all cast electronic shadows everywhere we go. There is no privacy in the public forum.

That is a powerful commonsensical argument that misses the larger and more chilling point: Do we expect government to create an electronic database detailing every movement we make outside our home?

I am reminded of religious pamphlets someone gave me as a child. I believe the cartoonist who drafted them was named J.T. Chick. The pamphlets were intended to terrify. Repent, they screamed, because on the day of judgment, God will be capable to hitting a rewind switch and will review, with you present, each every movement, each and every thought, you made in the course of a lifetime. I read those pamphlets with a sense of despair commingled with disgust. Yes, I am a sinner, and if on judgment day a tape of my life is played, I am a Hell-bound. But is God really all that great if all He has to do is wonder about the minutiae of my life? The majesty of God seems diminished by transforming Him into a heavenly schoolmarm or scold. Count me an agnostic in the larger of affairs of life.

But I am not agnostic about the power of Government. The judgments it imposes take place in the here and now. The Hound of Heaven might be a benign presence; FBI agents tracking me like electronic bloodhounds are not.

The analytic framework supporting claims of Fourth Amendment violations is rapidly becoming toothless in a society with cheap and easy surveillance. Perhaps we need an explicit right to privacy, either by way of constitutional amendment or Court decision. Frankly, I don’t hold out much hope that Court decision can yield the answer. Look what happened when the Court decided Roe v. Wade almost 40 years ago.

Technology is changing the world. The digital era has made possible tracking our every movement. Indeed, according to the authors of Top Secret America, a new book attempting to give shape to the new counter-terrorism industry in the United States since 9/11, the Government is at work creating a vast digital map of the continent that will permit lawmen, at a keystroke, to call up any location in the country and, including your home, to display all sorts of information, including floor plans of your residence. It may be unreasonable to expect privacy as a factual matter in a digital universe, but it is not unreasonable to expect, as a matter of law, that government will not be permitted to use the latest in technology to transform us into little more than digital sheep to be herded at will.


About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis


Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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