HARRISBURG – A review of the Jerry Sandusky investigation released today by Attorney General Kathleen G. Kane confirmed that the investigation took too long because of crucial missteps and inexplicable delays in bringing a serial child molester to justice. The facts in the report show:
It took a full year, from March 2009 until March 2010, for the office to recommend charging Sandusky because basic investigative steps were not taken, including searching Sandusky's home.
In March 2010, career prosecutor Jonelle Eshbach circulated a draft presentment that recommended filing multiple charges against Sandusky, based on statements by Victim 1 and other corroborating evidence. But senior leadership at OAG failed to act on that recommendation for five months despite repeated requests from Eshbach and the mother of Victim 1; Eshbach was informed in August 2010 that more victims were necessary for the case to proceed and they were declining to charge Sandusky.
Then, in the months that followed, little effort was made to find any more victims or charge Sandusky, and the case was at a complete standstill until a tip was received by the Centre County District Attorney in November 2010.
"This was a full and fair review," Attorney General Kane said. "The facts show an inexcusable lack of urgency in charging and stopping a serial sexual predator. The report documents that more investigative work took place in just one month in 2011 than in all of either 2009 or 2010."
Special Deputy Attorney General H. Geoffrey Moulton Jr., working with Attorney General Kane and staff, led the review. Moulton was joined by Special Agent-In-Charge David Peifer, who oversees the Bureau of Special Investigations, including the agents in the Child Predator Section, and Senior Deputy Attorney General Laura Ditka, who has nearly 20 years of experience handling child sexual abuse cases.
"These types of post-action reviews are vitally important," Moulton said. "Our goal was to provide a factual, unbiased review of this investigation and to identify any ways that law enforcement can do a better job protecting children. Attorney General Kane made it clear to me from the beginning that this review was not about politics. This was about a core function of government – protecting children."
Moulton's review found no direct evidence that political directives drove any of the decisions made throughout the course of the investigation. However, the facts and the timeline in the report raise serious concerns regarding decisions made at the very outset of the probe in 2009 and throughout 2010 and 2011, which ultimately delayed the investigation and the presentment of charges. The report's key findings include:
In March 2010, prosecutor Eshbach circulated a draft presentment that recommended filing multiple charges against Sandusky, including involuntary deviate sexual intercourse, a felony. But her pleas for a decision were ignored for five months. (See Appendix G.)
In August, five months later, senior leadership at OAG told Eshbach that the case would not proceed without more victims or better corroboration for Victim 1. The report notes that this was the first time in Eshbach's career that she had submitted a presentment to her supervisors that had not been approved promptly. (See page 53.)
The report found further inaction in 2009, and from August to November 2010, noting that, "… when Eshbach reported . . . … that her 'bosses have directed that we try harder to find any other corroboration for [A.F.],' little investigative activity apparently occurred. Indeed, once Eshbach submitted the draft presentment in March 2010, the only reported investigative activity before the end of August was the offer to Sandusky … to testify in the Grand Jury. … Not only does there appear to have been no concerted effort to identify additional victims, but no witnesses were interviewed and no subpoenas were served. Nor was there apparently any renewed discussion of searching Sandusky's residence or checking for earlier allegations of misconduct." (See pages 129-30.)
"This case sat inactive for months while a predator was on the streets and a victim waited for justice," Attorney General Kane said. "The Grand Jury presentment, drafted and supported by the lead prosecutor, sat on someone's desk for five months. Only after the lead prosecutor repeatedly pushed for an answer, the presentment was denied. It is unfathomable why there was such a lack of urgency."
In a response to the report, Eshbach's attorney wrote that Eshbach continues to believe charging Sandusky in early 2010 was the appropriate course of action (see Responses, Jonelle Eshbach), noting her own experience and that of other prosecutors.
The review suggests that had OAG taken basic measures at the outset of the probe, the issue of charging based on Victim 1's statements alone would likely have been moot because the additional evidence would have been in hand. These important but delayed steps included searching Sandusky's house, requesting records from local police and child protective services and seeking information from The Second Mile, among others.
The report notes that OAG did not search Sandusky's home for more than two years after the office received the case, 21 months after it was suggested by OAG's lead investigator, and more than one year after Eshbach wrote the first presentment. That search, once conducted, revealed valuable evidence. The report states that, "... the failure to search Sandusky's residence earlier in the investigation is difficult to defend." (See page 129.)
The report states: "As one expert in the investigation of child molesters put it: 'The major law-enforcement problem with the use of search warrants in child-sexual-victimization cases is that they are not obtained soon enough.' That was certainly the case in the Sandusky investigation. The search uncovered, among other things, many photographs of already-identified Sandusky victims, as well as lists of Second Mile campers with handwritten asterisks next to their names. Had the search been conducted in 2009 or 2010, investigators could have used the photographs and names with asterisks to find victims much earlier than they did." (See page 127.)
"We need to make sure that investigations don't further victimize the victims. The suggestion that a conviction erases the need to ensure missteps are not made again in the future is seriously flawed," Kane said. "The failure to search Sandusky's residence with appropriate urgency alone is both unexcused and inexcusable."
The review found that the decision to take the case to the Grand Jury was supported by Eshbach and her superiors, and ultimately Attorney General Tom Corbett, and was within their prosecutorial discretion.
The report notes, however, that, "... for long stretches of time before the investigation ramped up in 2011, the resources of the Grand Jury were barely used at all. From the beginning of January 2010 through the end of October 2010, for example, the Grand Jury issued no subpoenas for testimony and only one subpoena for records." (See page 105.)
"Prosecutors must act quickly and decisively to protect children from continued abuse and do all that is necessary to protect potential victims. While I don't agree with the decision to go to the Grand Jury, I recognize that prosecutors may differ. However, once you decide to use a Grand Jury, it is imperative that you take full and immediate advantage of its tools," Attorney General Kane said.
Moulton's report outlined several recommendations to continue reforming the way child sexual abuse is reported and investigated in Pennsylvania, including the following:
OAG should rely more heavily on collaborating with child sexual abuse investigators and children services at the local level where abuse is suspected to have occurred.
In high-priority cases, senior management in the Executive Office at OAG should be more involved, direct greater attention and make decisions more quickly.
OAG should make child abuse education and outreach a higher priority.
The Legislature's work on child abuse legislation should continue, including further consideration of legislative changes recommended by the Task Force on Child Protection that have not yet been enacted.
For more specific information on these recommendations, see Part Three of Moulton's Report. (See pages 132 through 141.)
"I want to thank Mr. Moulton for his professionalism and for the public service he has provided," said Attorney General Kane.
"He fulfilled our mission of bringing the facts about this investigation to the public, despite obstacles such as the need to recover millions of emails prematurely deleted under a retention policy put in place by the Attorney General in 2011," she said. "The OAG team that assisted Mr. Moulton was led by Special Agent-In-Charge Peifer, Chief Deputy Attorney General Laura Ditka and Deputy Attorney General Marisa Lehr. As well, Senior Supervisory Special Agent Braden Cook developed the program to retrieve the deleted emails."
Moulton, an Associate Professor Emeritus at Widener University School of Law and a former federal prosecutor, was specifically appointed by Attorney General Kane as Special Deputy Attorney General to conduct this review.
He previously served as First Assistant U.S. Attorney for the Eastern District of Pennsylvania, Chief of Staff and Deputy Special Inspector General for the U.S. Office of the Special Inspector General for the Troubled Asset Relief Program (SIGTARP), and Project Director for the U.S. Department of Treasury's widely-praised report concerning the failed Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) raid on the Branch Davidian compound near Waco, Texas.