In Our Rush to Get the Outcome Right, Did We Get the Process Wrong?

In the final scene of the movie Jaws, the great white shark is attacking the boat. Its head is on deck, and the boat is rapidly taking on water. All looks lost until someone throws an oxygen tank into the shark’s mouth. In the next scene the oxygen tank explodes and the shark is defeated.

In the media shark feed that followed the issuing of the grand jury report describing Jerry Sandusky’s crimes, were Joe Paterno and Graham Spanier the oxygen tank?

Just after the grand jury report was released, it was announced that two Penn State administrators, Gary Shultz and Tim Curly, were accused of perjury during their Grand Jury hearings.

Graham Spanier’s reaction to these accusations was to announce that the University would hire counsel for these administrators. His specific statements was this:

“The allegations about a former coach are troubling, and it is appropriate that they be investigated thoroughly. Protecting children requires the utmost vigilance. With regard to the other presentments, I wish to say that Tim Curley and Gary Schultz have my unconditional support. I have known and worked daily with Tim and Gary for more than 16 years. I have complete confidence in how they have handled the allegations about a former University employee. Tim Curley and Gary Schultz operate at the highest levels of honesty, integrity and compassion. I am confident the record will show that these charges are groundless and that they conducted themselves professionally and appropriately.”

It was a moment for leadership, and Dr. Spanier was going to lead by standing by his people and allowing the justice process to unfold.

The media’s (and therefore, the public’s) reaction to Spanier’s statement was to vilify him as a secretive leader hell bent on a cover up. “How could he even think of hiring counsel to defend his employees when victims had been abused?”

The same man who only days before would have been ranked by many as among the most talented University Presidents of his era, suddenly was being depicted as at best incompetent and at worse immoral.

Such turn-on-a-dime shifts in our impressions ought to give us pause. But when the shark is on the boat, who has time for such subtleties?

Now that the shark has been fed and it seems more or less clear that the boat will not be capsized, I’d like to do something unpopular. I’d like to think out loud about Graham Spanier’s road not taken.

I am a professor of Sociology and Crime, Law, and Justice, and I teach a class on the Sociology of Deviance. So I spend a lot of time thinking about deviance, morality, and justice.

And I must admit that when I first heard Dr. Spanier announce that he was hiring counsel to defend his accused employees, Shultz and Curly, I thought to myself, “good, let’s let the justice process play out here and see what went wrong and who is responsible.”

Maybe I’ve spent too many years in the Ivory Tower, but I believe in due process, and I felt thankful that we had a justice system we could turn to in this high-stakes and emotionally charged circumstance – and a leader willing to make use of it.

A day or so after Spanier’s announcement, after it became clear to Spanier that the Board of Trustees had a more conciliatory leadership plan in mind, one that was NOT based on due process, Spanier resigned. And on that same day the Board of Trustees fired Joe Paterno (without benefit of due process).

It is easy to understand why the Board did what it did. The great white was champing at the boat and the Board needed something with a lot of TNT to throw in its mouth.

As we all know, the Board’s TNT didn’t succeed in stopping the media feeding frenzy. Though maybe it did keep the boat from capsizing.

Either way I can’t help but wonder: What happened to due process? And without it, what message did the Board’s actions send? Did the public interpret the firing of Joe Paterno and the resignation of Graham Spanier as admissions of guilt by the University?

Due process is the fundamental moral principle that underlies our justice system. It’s based on the notion that an accused person is innocent until proven guilty. Due process exists to make sure that the accused gets a fair trial and that punishments are not meted out based on public opinion, hearsay, or mass hysteria.

And here’s the trick y part: Because it protects people from false accusation, due process must always risk being insensitive to victims. It asks victims to be patient while all the facts are aired, and their accusations along with the accused’s responses are considered from all angles, so that the most just outcome can be achieved. It asks the public to withhold judgment until all the facts are known.

And yet, when Graham Spanier decided to hire counsel for his employees – a due process move - and when Joe Paterno announced that he would finish out his last season before retiring – each believing that they had done nothing criminal and that the justice process would bear that out – both were vilified by the media and lynched by the public.

Sandusky’s crimes had touched a chord so disturbing that our collective ability to think clearly about the nature of justice was obliterated.

So much for due process.

In the end – when the justice process surrounding the Penn State scandal finally plays out - with the cases of Shultz and Curly - we may decide that the Board got the outcome right and that the careers and legacies of Joe Paterno and Graham Spanier deserved to be destroyed.    

But what if Shultz and Curly are found innocent of perjury and cover-up? What then? What will we make of the Freeh Report and NCAA sanctions? And what about the firing of Joe Paterno and the loss of Graham Spanier?

Unfortunately, up until now, the only two entities out there who have been willing to critique the process by which the scandal was handled are the Paterno family and Graham Spanier. And because they both have something to gain by influencing how people see things, their arguments are easy to dismiss. And because I’m a Penn State employee, maybe mine are too.

It seems to me that Spanier and Paterno were tried and convicted in the media (including the Freeh Report) for allegedly covering up Sandusk’y crimes in order to avoid bad press for the University. But isn’t it also true that these two individuals were dumped by the University’s Board of Trustees  - without benefit of due process - in order to avoid bad press for the University? How can one seem so wrong and the other so right?

My point is not that we ought to be indifferent to child sexual abuse or any crimes for that matter. My point is that before we mete out punishment on the basis of accusations, and regardless of how serious those accusations are, we need to have due process. Without it we live in a frightening world where people are guilty until proven innocent.

This is especially worrisome as Penn State begins shoring up its reporting procedures in order to make sure that something like this never happens again.

Whether or not we got the outcome right, one thing seems crystal clear to me: we got the process wrong. We are all against child sexual abuse and we are all against engaging in cover-ups. But in our rush to be against these things did it make sense to cut short the justice process?

And so I’m left wondering, what exactly is the lesson here? If we want people to do the right thing for the right reasons without fear of negative publicity; if we want to live in a society where people are innocent until proven guilty; then were Paterno and Spanier treated in ways that will encourage or discourage people from doing the right thing for the right reasons in the future?

In a just society the surest way to get the outcome right is to get the process right. It’s not a guarantee but it’s the best way we know. And in this case I can’t help but ask: In our rush to get the outcome right, did we get the process wrong?

Eric Silver
Doctor of Society

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