Bringing Down a Legend: How an 'Independent' Grand Jury Ended Joe Paterno's Career

Abstract

A grand jury “presentment” is a document that reflects the results of an investigatory grand jury’s investigation. Abandoned by the federal system in 1946, several states continue to rely on presentments in their grand jury practice. One such state is Pennsylvania.

On November 5, 2011, a Pennsylvania investigating grand jury issued a presentment targeted toward former Penn State assistant football coach, Jerry Sandusky. The twenty-three-page document was released to the public on the same day and, in it, the presentment included a handful of statements relevant to former Penn State head football coach Joe Paterno. Although Paterno was not the subject of the state’s criminal investigation against Sandusky, that did not satisfy the court of public opinion. And, although Paterno was denied the opportunity to legally respond — there existed no venue for him to file any kind of response or seek to strike portions of the Sandusky presentment — Penn State fired him on November 9 and he died just sixty-four days later.

This Article argues that the Supreme Court’s current view of the grand jury allowed a Pennsylvania investigative grand jury to needlessly and unfairly include Paterno, practically accusing him of a crime. But Paterno’s story simply makes for an outstanding illustration of the Supreme Court’s problematic view of the grand jury as an independent body. The absence of consistent regulation over that body, a byproduct of the Supreme Court’s approach, allowed a grand jury presentment investigating one person to improperly accuse an uninvestigated third party of impropriety. That, the Article contends, is a clear abuse of the grand jury system.

Keywords: grand jury, indictment, report, presentment, criminal law, criminal procedure, sports, Joe Paterno, evidence

JEL Classification: K14