Asked and Answered: David DuMouchel Penn State fallout

By Steve Thorpe

Legal News

Penn State University has hired former FBI director Louis Freeh's law firm to conduct an investigation into what school officials knew of the alleged child abuse by former football coach Jerry Sandusky, when they knew it, how they responded and what the university can be done to ensure such abuse never happens again.

David DuMouchel chairs Butzel Long's Corporate Compliance, Internal Investigations and Criminal Defense practice. In 2007, DuMouchel was part of a team of Butzel Long attorneys who conducted a 10-week internal investigation into Clery Act compliance at Eastern Michigan University. The investigation, which arose from university administrators' response to a student's death on campus, included more than 80 witness interviews and the review of thousands of pages of documents. The law is named for Jeanne Clery, a 19-year-old Lehigh University freshman who was raped and murdered by another student in her campus residence hall in 1986.

Thorpe: What can internal investigators do to make sure they don't damage a prosecutor's future case?

DuMouchel: It is important that those conducting the internal investigation are sensitive to the fact that there is (or may be in the future) a separate criminal investigation. There are timing considerations, privilege issues, ways questions are asked and sometimes not asked, etc. It also is important not only to be concerned about damaging a prosecutor's future case, but a putative defendant's as well, insofar as that is appropriate. However, the specific interest of the internal investigator is to arrive at the truth as to what happened, by whatever means gets you there. If one avenue might jeopardize the criminal investigation, and another avenue might be somewhat more difficult but is less problematic to that criminal matter, then you take the other road if you can. It is unlikely that a prosecutor or law enforcement agency will share much information about an active investigation, but they are often willing to at least discuss things they would rather not have happen in the internal investigation. The internal investigation, however, is not, and cannot be seen as, an adjunct of the prosecution effort.

Thorpe: It may be difficult to secure cooperation from potential witnesses in the Penn State case. How can internal investigators compel witnesses to participate?

DuMouchel: That is a real difficult issue when there is an ongoing criminal investigation -- or, for that matter, when people are concerned about potential civil liability as well. Obviously, a person who has been identified as a target in a criminal investigation is not likely to meet with an internal investigation team; that is not an absolute, and there are exceptions, but they are rare. The person's lawyer might want to meet and put the client's position forth, and that might/might not be useful. It also might require certain unusual methods of obtaining information, such as an agreement not to have the witness' statement verified, reviewed and adopted by the witness, etc. The ''compel'' part is dicey. If the person is a current employee, the company directs that person to cooperate with the internal investigation, and refusal to do so can have serious employment consequences. The internal investigators know this as well, and if they can avoid putting some people to that Hobson's choice, often they will try and do that -- e.g., where they know the person just cannot submit to an interview, and the investigation can be completed without such an interview, accommodations can be considered. But, as in the response to #1, the investigation has to be complete, thorough and lead to the truth, and if that means a current employee has to be interviewed, has to produce documents, even if they are in harm's way, and they refuse, there will be unfortunate consequences no matter how much no one wants that to occur. Of course, if the witnesses are not current employees, there is virtually nothing that can be done to compel their cooperation. You can ask, urge, cajole, beg ... but you are going to have a very hard time compelling.

Thorpe: Is the support of the institution, in this case Penn State, important to the work of the investigators?

DuMouchel: That is the most significant aspect of any internal investigation. The audit committee, or special committee of the board, that is responsible for overseeing the investigation process, has to make it very clear to management and then to the employees that this investigation is going to occur, that the complete cooperation of all is expected/required, and that the investigation will be fully supported by the Institution. The integrity of the investigation is paramount, and it is going to lead wherever it goes -- no effort to influence that direction or conclusions. These investigations are not conducted in the dark -- many people are interested, and whether they are whistleblowers, insiders, victims of alleged activities, government authorities (SEC, DOJ, etc), and the integrity of the process has got to be maintained and, hopefully, trusted by those observers. That is not to say that the investigation has to find misconduct, impropriety, etc, in order to satisfy those who allege, or believe, misconduct occurred. But it does mean that the results, whichever way they come out, are supported. I will say, in all of the internal investigations I have been involved in, I have never had any interference, suggestions as to the way it was to come out, limitations put upon the process by the company, etc. Each and every one has been fully supported by the Audit Committee and the Board.

Thorpe: How much success do you think investigators will have in getting answers at Penn State?

DuMouchel: I think they will have success in arriving at answers to most of the ultimate questions. I do not know, given the age of the alleged events, the fact that some of the witnesses they would want to talk to will be unwilling or unable to talk to them due to the ongoing criminal investigation and upcoming trial, whether all of the surrounding facts will be uncovered, and whether those that are will be able to be verified as much as the investigators would like, but, as I said above, there is usually more than one road that leads to a particular place, and these investigators know how to get to a location by different routes. It also is not always difficult to tell when a person's story is truthful or untruthful -- surprisingly so. These are experienced investigators who can get ''pretty close'' to the truth without a lot of trouble -- and then it is much harder to verify those early inclinations or disprove them, and that is what takes the time. Then, the real frustration comes when you are almost ''done'' and everything looks like it fits -- and the late witness comes in and blows the theory away. I will be surprised if that does not happen, and happen several times -- but eventually, the truth will come out. Then, there will be people on various ''sides'' who will criticize the investigation, that it was a ''whitewash'' and ''what do you expect?'', or it was a ''witch-hunt'' and ''what do you expect?'' -- and when the investigation has been conducted with care and thoroughness and integrity, those responses just can't matter.

Thorpe: How big a role do investigators usually have in suggesting measures and policies to avoid future problems?

DuMouchel: In many cases, that is the most important result of the investigation. Traffic lights are often installed after an accident, not before. Internal processes that seemed OK, but did not work, probably never were OK, and certainly are not once the failures are examined. The institutions usually did not want the improprieties to occur, and do not want them to occur again (that's not always the case, but often is). If there is going to be regulatory or law enforcement action taken after, it is critical that the institution demonstrate that compliance initiatives are going to be undertaken, what they are, and how they are aimed at preventing a recurrence of the conduct. It always is important in doing these cases that the investigating counsel remember that they are not running the company, they do not know how to run the company, and the company needs to run after they leave and the investigation is done -- and if a lot of collateral damage is left, or the underlying problems are not corrected, the investigators have not completed their jobs.

Published: Thu, Feb 9, 2012

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