Corbett Sidesteps Blame in PSU Scandal

By Stacy Brown | PA Independent

HARRISBURG — Gov. Tom Corbett did not notify the Penn State University Board of Trustees about the state’s investigation of former assistant football coach Jerry Sandusky because of grand jury secrecy rules, he said.

However, a examination of those rules suggests Corbett could have taken some action.

"Rules seldom are clear one way or another," John Capowski, professor of law at Widener University School of Law in Harrisburg, told Pennsylvania Independent. "But, Corbett may have been able to share some things."

Geoffrey Hazard, a former professor of legal ethics at University of Pennsylvania who now teaches law at University of California in San Francisco, said “If (Corbett) makes sort of general observations, I think that’s entirely appropriate."

As attorney general until he became governor in January, Corbett was the state’s top law enforcer during the investigation into Sandusky that began three years ago. Sandusky was arrest earlier this month on charges that he sexually abused boys. A grand jury report detailed eight separate incidents in which the former Penn State football coach is accused of abusing boys as young as 8 years old between 1996 and 2005.

As governor, Corbett is placed on Penn State's Board of Trustees automatically.

Grand jury rules

While speaking Monday at the Pennsylvania Press Club luncheon here, Corbett maintained he could not have said anything about the investigation. But the rules of secrecy does appear to permit disclosure under certain conditions.

Rule 6 (e) of the Grand Jury Manual prohibits the release of most information during a grand jury proceeding and carries a contempt of court citation. The purpose for this secrecy is to “encourage witnesses to come forward and testify freely and honestly” and “protect accused persons who are ultimately exonerated from unfavorable publicity,” according to the rule.

However, according to this excerpt, the rules allow for publicly divulging some information:

"Generally, it is necessary to disclose at least some information describing the nature of a grand jury inquiry during the course of an investigation. In most circumstances, such information should be very general. For example, a government attorney could say, ‘We are investigating a possible price-fixing conspiracy in the road building industry.’" 

Because of this rule, Corbett could have asked the trustees to look into Sandusky’s character, said Wes Oliver, professor of law at Widener University School of Law.

"Corbett had a fiduciary responsibility to the board. He didn't have to divulge that Sandusky was even being investigated, only that they should look closer at him," Oliver said.

The manual also states that a prosecutor may seek permission from a judge to reveal some aspects of the proceeding. Section 2 of Rule 6 (e) states:

"A court may permit disclosure of grand jury materials under Rule 6(e)(3)(C)(i) only when the requesting party has demonstrated a particularized need for the material. Under the standard, it must be demonstrate that the material is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy."

Even still, Corbett did not need a waiver, Oliver said.

Sandusky scandal revealed

"Based on his knowledge, Corbett could have advised the board to remove Sandusky from campus. Also, back in March, the public knew about it because the Harrisburg Patriot-News reported it, so once it was out in the public domain, Corbett could have even said Sandusky was being investigated. A judge would have signed off,” Oliver said.

The March 31 story stated that Sandusky was the subject of a grand jury investigation into allegations that he assaulted a teenage boy. 

The teen told authorities that Sandusky had inappropriate contact with him during a four-year period, starting when he was 10, according to the news report.

Grand jury vs. preliminary hearing

The grand jury proceedings are confidential and used mainly in public corruption cases, said attorney Jeff Lindy, of the Philadelphia-based firm Lindy and Tauber, which specializes in child abuse cases.

The grand jury examines accusations against a person charged with a crime to determine if the evidence is strong enough for an indictment, which is a statement from the grand jury charging the defendant with a crime.

"Strictly speaking, if the governor were to say that he couldn't comment, he'd be right when it comes to a grand jury investigation. (However), lots of prosecutors comment anyway by saying we are looking into a matter," said Lindy.

An alternative to the grand jury is a preliminary hearing before a magistrate or a judge. A preliminary hearing is held to see if the state has enough evidence to justify sending the case to trial.  Unlike a grand jury procedure, the hearing gives the accused and the defense lawyer a chance to hear the details of the case.

Corbett chose the grand jury route because of the nature of the alleged crime where the identities of witnesses and victims could remain protected, Harley said.

State funding is being considered to help aid the university's investigation into Sandusky's alleged crimes, Corbett said, adding that former FBI Director Louis Freeh has been appointed to lead the university's internal investigation.

"We will cross that (funding) bridge when we get to it. I like the direction it is going in now," Corbett said.