Legal | paulhunterjones

On November 5, 2011 Jerry Sandusky, a former Pennsylvania State University (PSU) defensive coordinator for the football team, was arrested. The Pennsylvania State Attorney’s Office was charging him with 40 criminal counts of sexually abusing young boys. The crimes were alleged to have been committed over an extended period. Also arrested were PSU athletic director, Tim Curly and Gary Schultz, the school’s vice president for finance and business. Both men were charged with perjury and failing to report what they knew about the allegations. PSU’s legendary coach, Joe Paterno, was not charged with any crime. Coincidentally the PSU football was not in action that weekend so the campus was rather subdued.

The arrests put the football program under the public microscope for its moral values and social responsibility to the community. The commentators and pundits immediately began discussing how the culture of big time collegiate sports created an atmosphere at PSU that allowed Mr. Sandusky to abuse children at will. It was suggested that the University was more concerned about bad publicity and not protecting young children from a known pedophile. How PSU and its vaunted football program would come out of mess was and always has been the question on everyone’s mind.

Sandusky had his proverbial day in court to contest the charges. The trial judge refused to allow the live broadcasting of any of the proceedings. During the breaks in the trial and at the conclusion of the daily proceedings summaries and updates became available from the reporters who were inside the courtroom. Their reports only galvanized the view that something was seriously wrong at PSU. The victims, some now adults, testified in graphic and horrific terms how Mr. Sandusky had repeatedly sexually abused them. The State Attorneys presented an overwhelming case against Sandusky. Some of the abuse took place on PSU property, in particular, facilities used by the football team. It was no surprise to anyone that Sandusky declined to testify in his own behalf. The jury took less than 20 hours to convict Sandusky of 45 of the 48 counts of the indictment. Sandusky has yet to be sentence but it is believed that he will spend the rest of his life in jail.

The conviction served as fresh ammunition for those who believed that the PSU had lost intuitional control of its football program. Worst yet were the accusations that the institution simply refused to challenge Joe Paterno’s running of the football program. The Board of Trustees at PSU realized that the Sandusky scandal required that the university thoroughly investigate the entire affair. The investigation had to be professionally undertaken, comprehensive and transparent to prevent any claim of a cover-up.

In order to guide the University through the maze of legal and moral problems it was facing the Board of Trustees commissioned former federal judge and FBI director Louie Freeh and his law firm to investigate and report on the Sandusky scandal. Judge Freeh took 8 months to complete his report. His office interviewed countless witnesses and reviewed more than a million e-mails. The 250+ page written report was long enough to be thorough and short enough not to be weighed down by detail. The entire report is available online.

Once the report was made public the Board of Trustees realized that Freeh’s work, which they had commissioned, constituted an indictment of the University’s football program and PSU as an institution of higher education. According to the Freeh report PSU football had become a de facto entity unto itself. It seemed to operated separately and beyond PSU’s institutional grip. The written report damaged the prestige and reputation of PSU. Yet it was Judge Freeh’s very public press conference that shattered any hope that PSU had of salvaging something from the scandal. At his press conference Judge Freeh clearly laid out, in terms that everyone could comprehend, the case that Penn State officials participated in a cover-up of Sandusky’s pedophilic tendencies. In particular Judge Freeh stated the following:

“The evidence shows that these four men also knew about a 1998 criminal investigation of Sandusky relating to suspected sexual misconduct with a young boy in a Penn State football locker room shower. Again, they showed no concern about that victim. The evidence shows that Mr. Paterno was made aware of the 1998 investigation of Sandusky, followed it closely, but failed to take any action, even though Sandusky had been a key member of his coaching staff for almost 30 years, and had an office just steps away from Mr. Paterno’s. At the very least, Mr. Paterno could have alerted the entire football staff, in order to prevent Sandusky from bringing another child into the Lasch Building. Messrs. Spanier, Schultz, Paterno and Curley also failed to alert the Board of Trustees about the 1998 investigation or take any further action against Mr. Sandusky. None of them even spoke to Sandusky about his conduct. In short, nothing was done and Sandusky was allowed to continue with impunity” pg. 5 of the press release

In my opinion the Board of Trustees should have received the Freeh report in confidence. The Board then could have deliberated behind closed doors on its use. Clearly Judge Freeh would not have held the press conference if the Board had not granted him their approval to do so. It seems to me that the Board might have over reacted to public pressure and its claim of a cover-up.

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President Ronald Regan appointed Antonin Scalia to the Supreme Court (COURT) as an Associate Justice in 1986. As a candidate for the nation’s highest court Justice Scalia’s credentials were impeccable by anyone’s standards. Justice Scalia excelled at all the universities that he attended. At Harvard Law School he was the footnote editor of the Law Review. He worked with distinction in private practice and for the governmental. Before assuming his duties on the COURT, Justice Scalia taught at various well-known law schools. He sat on the bench of the Federal Appeals Court. Even his distracters would agree that he has a quick mind and an ability to eloquently and forcefully express his thoughts in writing. I think it is fair to say that Justice Scalia is well qualified to sit on the Supreme Court.

On June 25, 2012 the COURT decided the much talked about immigration case of Arizona v. United States. The Court ruled by a 5-3 majority that three parts of the Arizona Statute (SB 1070) was in conflict with federal law and thus unconstitutional. Justice Kennedy wrote the opinion for the majority which upheld Arizona’s right to question properly detained persons about their immigration status. I believe that the COURT correctly decided the case.

In the case Justice Scalia wrote a scathing dissent. In an unusual move he also discussed some of its key points in open court. Justice Scalia did not mince his words in criticizing the majority’s decision and President Obama’s recent executive order to pardon millions of undocumented aliens. Justice Scalia remarked that the delegates who attended the constitutional convention would have fled from Independence Hall if the States would not have had the right to control immigration into their borders. The delegates would never have agreed to give the President the right to enforce the nation’s immigration laws at his discretion. The quick-witted Scalia noted that by passing a state immigration law Arizona had “moved to protect is sovereignty—not in contradiction of federal law, but in complete compliance with it.” Justice Scalia stated that President Obama’s Executive Order to end the deportation of many young adults brought into this country “boggles the mind.”

Before the Supreme Court Justices could retire from the courtroom, the commentators and pundits had began to criticize Justice Scalia for being too political. The well-known and respected Washington Post opinion writer, E.J. Dionne Jr. , demanded that Justice Scalia resign. Mr. Dionne believed that it was improper for the Associate Justice to jump into the political argument over President Obama’s immigration decisions. The Washington Post writer believes that Scalia’s arrogance causes him to lose sight of long-established rules of judicial impartiality and temperance. Writing about Justice Scalia’s remarks, Mr. Dionne stated that “…it was a fine speech for a campaign gathering, the appropriate venue for a man so eager to brand things he disagrees with as crazy or mind-boggling.”

I am amazed at the misdirected criticism of Justice Scalia’s pointed dissent. Importantly; the logic of his reasoning, on legal and practical grounds, is solid. None of those who rushed to criticize him have had the courage to debate the logic or correctness of his statements. The people of Arizona are fighting for their sovereign territory. In the midst of this struggle to control the influx of illegal aliens the President of the United States grants an amnesty to the very people who Arizona is trying to control. I am sure Justice Scalia understands that sooner or later the legality of President Obama’s Executive Order is going to make its way up to the COURT.

The deliberations that the Justices had while considering Arizona’s law had to have been contentious. Justice Kennedy must have commented that his opinion would mention, if in an indirect matter, President Obama’s action to pardon so many young undocumented aliens. In page 4-5 of the majority decision, Justice Kennedy does in fact allude, though not by name, to President’s Obama’s actions on immigration. Justice Scalia’s dissent and public comments were partly in response to his brethren’s political support for the President.

In his dissent Justice Scalia actually demonstrated his disdain for the entry of politics into the Supreme Court’s deliberations. This fact is conveniently overlooked by his critics.

It must be remembered that oral arguments were heard and the parties’ legal briefs were submitted months before any deliberations had taken place. Various organizations, scholars and governmental officials also submitted amicus curiae briefs. Before reaching the COURT the case had been litigated in the lower courts. Consequently the law and issues had been well defined for the Court’s consideration.

In an effort to boost his appeal with Latino voters and to hedge his bets against any possible adverse ruling of the COURT President Obama who is a well-respected jurist decided to stack the cards in his favor; he issued the above mentioned Executive Order staying the deportation of millions of undocumented aliens. If the Supreme had ruled in favor of Arizona its decision would have been rendered largely moot by the President’s order. In light of this obvious political interference (a second time) I believe that Justice Scalia’s remarks were quite tempered. Justice Scalia’s detractors should turn their attention to President Obama.

The Supreme Court Justices had to wrestle with the question of what to do with the case in light of President Obama’s Executive Order. Justice Scalia was keenly aware of the awkward position the President had put the COURT and was not afraid to voice his displeasure. The Justices could have stopped their deliberations and remanded the case back down for further proceedings that would incorporate and consider the President’s executive action. Basically; the case could have been litigated de novo. I believe that this action was well within the COURT’s power. However, if the case had been remanded for further consideration a political as well as a constitutional crisis could have ensued.

The COURT occupies are a very special place in this country’s process of government. The highest court in the land sits atop of the judiciary branch of the federal government. Decisions handed down by the COURT constitute the last word on the law as it is applied to every part of the country. The US government is divided into different branches that balance the powers of the others. Political theorists argue that this “balancing of powers” between the Executive, Legislative and Judiciary prevents any one branch from accumulating too much power.

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