Due Process & Cross-Examination

“Cross-examination is the greatest legal engine ever invented for the discovery of truth.” So wrote the legal theorist John H. Wigmore, in a remark favorably quoted in by the Supreme Court in California v. Green. The Obama-era Office for Civil Rights, on the other hand, suggested that at least in some formats, cross-examination of campus sexual assault accusers could, in and of itself, provide grounds for a Title IX complaint against a university. And, quite apart from OCR’s improper pressure, most universities—institutions ostensibly committed to pursuit of truth as their reason for existence—have declined to allow meaningful cross-examination in campus sexual assault cases.

Two decisions in the past week pushed back against this system.

The University of Cincinnati has seemed particularly eager to position itself as among the most ardent defenders of unfair campus tribunals in the country. It already has been the subject of three lawsuits. The first case involved an undergraduate student whose case was simultaneously investigated by police—who claimed that university officials were improperly pressuring them to bolster the accuser’s story—and whose university tribunal featured UC ignoring potentially exculpatory video evidence.  (For good measure, the university allegedly suggested that the accused student had the burden of proof.) In the second case, UC permitted the accuser to testify—accepting her story as credible—and then flee the room to avoid cross-examination.

Judge Sandra Beckwith, in a deeply troubling opinion, suggested that the university’s handling of these cases did not violate the Constitution. A 6th Circuit panel seemed favorably disposed toward upholding the Beckwith opinion.

The most recent case, however, yielded a far better decision (which you can read here), from Judge Michael Barrett. UC, yet again, seemed to go out of its way to use unfair procedures. Here, the accuser made several statements to UC investigators, and to the local police; as the process continued, her version of events became more extreme. The police did not pursue charges. The university, however, elected to move forward; the initial contact with the accused student from a UC administrator all but presumed that the accuser was truthful, and implied that the only evidence that would interest UC was evidence that would show the accuser had charged the wrong guy. “If you have any documentation about where you were during the incident alleged in the complaint or witnesses that can speak with me about that, please let me know,” the administrator asked. (You can read the complaint here.)

After the accuser eventually settled on a version of events (in an e-mail to Jyl Shaffer, UC’s Title IX Coordinator, the accuser described her shifting descriptions, in response to the interview of the accused, as “edits for the file”) that she had consented to some but not all of the sexual acts on the night of the incident, the case moved to a hearing. The accused student then received a surprise—at the hearing, neither the accuser nor the investigator appeared. He therefore had no opportunity to use even UC’s very limited cross-examination procedures (under which he could write down questions and hope that the panel asked them of the accuser) to probe the accuser’s inconsistent statements, or to determine the methods through which the investigator reached her conclusions. (Needless to say, none of the third-party witnesses to whom the investigator spoke appeared either.) When asked if he had any questions to ask of the report, the accused student not unreasonably replied, “Well, since she’s not here, I can’t really ask anything of the report.”

The panel—reflecting current norms at UC, and relying solely on the report of an investigator—found him guilty, and he appealed, citing (among other things) his denied right of cross-examination. The appeal was rejected, with UC asserting that “the procedural safeguards he argues were missing are safeguards typically found in criminal court actions and are not required for university hearings.”

The accused student sued. UC defended the constitutionality of its actions by citing to a handful of district court cases, plus four appellate or Supreme Court cases involving high school students (Wood, Jahn, Newsome, Antone) a fifth involving a university student who pled guilty to a felony drug offense (Flaim), and a sixth (Horowitz) dealing with the academic performance of a medical school student. UC concluded it fulfilled its duties—it told the accused student about the charges, and it provided a forum, however unfair, for him to be heard. (You can read UC’s reply here.)

The university did not explain why cases involving high school students or admitted felony offenses are appropriate for a university determining the truth of a contested allegation among college students. UC did concede that the accused student never had a chance, in the university’s procedure, to cross-examine his accuser. But, in an Orwellian argument that it placed in a footnote, Cincinnati deemed it “simply incorrect to state that UC failed ‘to permit John Doe to confront his accuser.’ Rather, the cross-examination UC does afford was simply unavailable in this case because Jane Roe did not attend the disciplinary hearing.” The university offered no explanation why it permitted the accuser to avoid attending the hearing to adjudicate her own charges.

Judge Barrett disagreed with this cavalier approach to the truth. “In this case,” he noted, “the [UC] Hearing Committee was given the choice of believing either Jane Roe or Plaintiff, and therefore, cross-examination was essential to due process.” And however broadly or narrowly the right to cross-examination is conceived, the facts of this case, Graham observed, were clear: “Plaintiff was effectively denied the right to cross-examination because he was not notified in advance of the hearing that Jane Roe would not be present at the [UC] Hearing. It was plain at the hearing that Plaintiff intended to ask certain questions, but because Jane Roe was not present at the hearing, he was not able to ask those questions.”

The accused student’s lawyer, Joshua Engel, told Ashe Schow of Watchdog, “We are especially pleased that Judge Barrett recognized that cross examination is vitally important in the ‘he said, she said’ type cases. Without cross examination, an accused student has no ability to effectively challenge the credibility of his accuser and allowing an accuser to hide behind an investigative report undermines the reliability of any decision.”

Graham’s decision prevented UC from suspending the student immediately, but the case isn’t over. A broader decision last week relating to cross-examination and due process came out of state court in Washington. (You can read the opinion here.) The facts of this case, which occurred at Washington State University, were highly atypical. The allegation was statutory rape, with a 40-year-old accused student (a graduate student from Saudi Arabia) and a 15-year-old accuser he had met on-line. As in the UC case, the accuser didn’t show up for Washington State’s disciplinary hearing, which relied instead on notes from a university administrator’s interview of the two police officers investigating the case.

The student sued, alleging that WSU had violated a state law that requires universities to provide significant due process protections—the right to a lawyer, the right to cross-examine witnesses, the right to subpoena witnesses. Advancing many of the same types of arguments that UC made, and also citing pressure from Title IX, Washington State justified its decision not to run a hearing at which accuser wasn’t required to appear, and all witness questions had to be presented, in writing, to the panel, which could decide whether or not to ask them.

A three-judge appellate panel overturned the university’s decision. The opinion especially recognized the importance of cross-examination: “Because assessment of veracity and credibility were key,” the judges held, “safeguards of the subpoena power, oral testimony, and cross-examination were critical.” Indeed, the fact that the accuser didn’t testify, and therefore couldn’t be cross-examined, “undermines confidence in the outcome.”

The judges conceded that in the post-Dear Colleague letter era, the issue “is not a simple matter.” But the rights of accused students—and the need to follow Washington law—came first. The judges counseled Washington colleges to work with the state. Perhaps allowing independent state officials to run campus sexual assault investigations would relieve any burden from the court’s requirement that all colleges follow state law.

In the aftermath of a California state appeals court green-lighting a university disciplinary process that the author of the opinion said reminded him of a “kangaroo” court, it was refreshing to see judges stand up for fairness.

Troubling News from Williams

Adoption of the Dear Colleague letter in 2011—coupled with campus pressure from activists and their faculty and administrative allies—has paved the way for all sorts of procedural abuses in campus sexual assault cases. This new system is one that’s ripe for abuse and favoritism, in all sorts of ways. The latest example comes in a lawsuit filed against my former employer, Williams College. (You can read the complaint here.)

The case revolves around the actions of a former Williams employee, who worked in the Alumni Relations office for the 2015-2016 academic year. She came to the job after graduating from Williams. For more than a year before she graduated, the employee dated another Williams student—identified as John Doe in the complaint—who was one year behind her academically. The two were close enough that the employee knew Doe’s computer password and (allegedly) his Facebook and Snapchat passwords.

It seems to have been an uneven relationship; in October 2014, the employee (then still a student) wrote to Williams dean Sarah Bolton indicating that she and Doe had a (verbal) argument. (Bolton departed Williams last summer and is now president at the College of Wooster.) Because “he ended up calling me selfish and telling me he can’t even look at me,” the future employee reported, she’d need to take a week off from school to recover emotionally. The e-mail contained no hint of any allegation of physical misconduct by Doe. Bolton responded very sympathetically, despite the extreme nature of the request (a week off from classes) given the conduct alleged (a personal insult).

The employee, moreover, considered Doe to be faithful (the specifics here remain in dispute). And when she claimed to have uncovered evidence of this (by checking on Doe’s Facebook, through means that remain disputed), she—oddly—informed Doe’s sister of his infidelity. Nonetheless, she evidently recovered from her emotional trauma sufficiently to graduate and decided to accept a job at Williams—in part, she later claimed, to stay close to Doe.

The relationship reached a new nadir at a December 2015 party. Doe was there with another female student; the employee saw him, got upset, and some sort of argument (initiated by the employee) ensued, which culminated in the employee grabbing Doe’s phone and hitting him across the case. Doe threatened to call security—which the employee believed might lead Williams to fire her. So after leaving the party, she called Doe’s sister—who subsequently produced documentation that the call occurred, and who recalled the employee as frantic:

sister-1

Very shortly after the the employee-Doe’s sister conversation ended, the employee emailed Dean Bolton. At 2.27am, on the morning of Sunday, December 5, 2015, she explained that she had been “too beaten (emotionally) to show up for work” in the past week. (It’s rather hard to miss a pattern here.) Issuing what she described as a “cry for help,” the employee claimed that Doe had “taunted” her at the party. She then charged that Doe had committed academic misconduct, by maneuvering her into helping him write papers for his Spanish courses. (Both accuser and accused are of Hispanic descent.) Here is a copy of the late-night, post-party email.

pelemail-2

The December 2015 email, like its October 2014 counterpart, contained no hint of any allegation of physical misconduct by Doe.

Despite the employee’s email constituting an admission that she had violated Williams policy by continuing a relationship of some type with Doe (college policy: “All faculty and many staff are potentially in a position of power with regard to students; hence, sexual relationships between employees and students are in almost all cases inappropriate”), Bolton does not appear to have taken any action against the employee. But Williams did file disciplinary charges against Doe for academic misconduct, claiming that he failed to submit his own work in three separate courses.

When I taught at Williams, I served two years as a faculty member of the Honors Committee. (The then-structure had a committee of five students and four professors, but only the students could vote.) The committee procedures essentially (and not unreasonably) presumed guilt–the accused student had no right to discovery, no right to a lawyer, and was facing a panel that would need to dismiss the findings of a Williams professor (who normally would be the figure bringing a plagiarism/academic integrity charge to the committee) to find him not guilty.

This case was unusual, however, in that the allegation came not from any of Doe’s professors–but from a Williams employee in the alumni affairs office. And Doe was able to prove his innocence on the academic dishonesty allegations. The committee itself found him not guilty of two of the allegations against Doe; a third was dismissed on appeal.

The result of the academic integrity inquiry thus provided Williams with critical, and troubling, evidence that one of its employees had leveled serious, uncorroborated allegations against a student with whom she’d had an inappropriate romantic relationship. Yet, again, the complaint indicates that no record exists of an attempt to discipline the employee. Indeed, in its most explosive allegation, the complaint claims Dean Bolton assured the employee that Doe’s expulsion was virtually assured, despite firm college rules that preclude someone in Bolton’s position discussing another student’s disciplinary proceedings with someone in the employee’s position. Ironically, Doe knew about the call because he happened to be in the room, with the employee, at the time. (It goes without saying that the relationship between these two was not a model for an ideal partnership.)

The strain from the academic integrity claim finally brought about an end to the Doe-the employee relationship, in early March 2016. But the employee—who was, to reiterate, still operating under rules that held “sexual relationships between employees and students are in almost all cases inappropriate”—appears to have wanted to rekindle matters. According to a letter sent by Doe’s lawyer, Stacey Elin Rossi, the employee flooded Doe with calls and texts in the days after their final breakup:

pelaez-texts

Doe responded to none of these calls, and his lawyer sent to the employee a cease-and-desist letter. Doe and his lawyer also met with Dean Bolton and the college counsel, placing Williams on notice about its employee’s behavior. One month later, on April 13, 2016, Doe filed a Title IX complaint against the employee, claiming gender-based harassment. For reasons that remain unexplained, Williams appears not to have investigated this complaint against its employee—formally presented by Doe’s lawyer to Williams’ Title IX coordinator—for nearly another month. According to the complaint, the college offered no reason for its decision not to promptly open an investigation into its employee’s behavior.

Then, on May 10, Doe received a notice from the same Title IX coordinator—informing him that the employee had filed an allegation of against him. The charge? “Abusive behavior toward her in the past two years.” The letter provided no more specifics.

At that point, only weeks away from his graduation, Doe found himself subjected to Williams’ Title IX procedure. (Only now did the college open an investigation into his April complaint, as well. Conducting the investigations simultaneously allowed Williams to avoid treating the employee’s May complaint as retaliation for Doe filing a Title IX complaint against her.) Doe soon discovered that the allegations included a claim of sexual assault—which was first floated by the employee only after Doe had filed a Title IX complaint against her. According to the complaint, Doe also was charged with “relationship abuse,” even though that concept wasn’t added to the college disciplinary code until October 2015, well after many of the events at issue in the case. A Williams official claimed that the wording change in the policy merely formalized preexisting “general guidelines”—but this precise argument, when Brown tried it, was rejected by Judge William Smith.

Williams has adopted a modified version of the single-investigator model, and the college turned to an eastern Massachusetts employment attorney named Allyson Kurker. Those familiar with campus due process matters might recognize Kurker’s name—she’s the “investigator” who handled the high-profile Amherst due process case. In that case, she failed to discover exculpatory text messages sent by the accused, and later testified that her failure was irrelevant, since she was interested in discovering contemporaneous texts only “to the extent that the incident is being described as nonconsensual.”

Doe was permitted to walk with his class, but couldn’t receive his degree. In September, Kurker’s investigation (which included an opportunity for Doe to respond in writing) concluded. (The complaint includes a copy of Kurker’s report, but most of it is redacted, so—unlike in the Amherst case—there is no way to comment on the clarity of Kurker’s work.) After both the employee and Doe produced an additional round of written responses, Kurker allegedly penned a revised written report (which Doe did not receive, for reasons Williams did not explain). The college also rejected Doe’s request for the transcripts of interviews between Kurker and witnesses. Moreover, since by fall 2016 the employee was no longer working for the college (her LinkedIn page has no indication of where she currently works), there was no possibility of sanction from Doe’s against her.

Last week, a panel of three college administrators informed Doe that they had found him guilty of sexual assault—citing to an incident in September 2014. That the relationship continued for another 18 months after the alleged assault, and that even Williams’ procedures found the employee’s initial claims of academic misconduct non-credible, and that the employee appears to have engaged in (at the very least) professionally dubious conduct toward Doe, and that the employee made two separate allegations to Dean Bolton without mentioning the alleged September 2014 incident, appears not to have impacted the committee’s evaluation of the employee’s credibility. Much as in the Brandeis case, the decision to analyze a single event in isolation (and ignore how the totality of the relationship between the two parties might affect the credibility of the accuser) produced an odd result.

Unanswered, from the complaint:

  • Why did Williams not punish its employee for violating the college’s policy regarding dating students?
  • Why did Williams not immediately investigate Doe’s Title IX complaint alleging harassment by a college employee of a student?
  • Why did the college downplay or ignore the evidence that appeared to eviscerate its employee’s credibility?

The case has been assigned* to Judge Michael Ponsor.

*–additions and edits for clarity.

At UCSD, “Where Is the Kangaroo?”

California law gives to state courts some discretion in reviewing the determinations of administrative hearings—which includes campus sexual assault tribunals. As a result, some of the most pro-due process decisions (UC-San Diego, USC) have come from California state courts.

On October 12, Judge Joel Pressman’s important decision was reviewed by a three-judge appellate panel. While it’s always dangerous to predict an appeals outcome from oral argument, it was clear that all three justices (Richard Huffman, Joan Irion, and Gilbert Nares) had concerns about the fairness of the UCSD system.

A quick summary: in this case, the accuser made two charges—that the male student raped her, and then sexually assaulted her the following morning. A UCSD investigator spoke to 14 witnesses, but wasn’t able to corroborate the first claim. But even though something these 14 witnesses said caused the investigator to doubt the accuser’s credibility, notes of these interviews (and even the identity of the parties!) wasn’t shared with the accused student. Regarding the incident the following morning—to which there were no witnesses—both the investigator and a UCSD panel deemed it more likely than not the accuser was telling the truth. UCSD never gave the accusing student a copy of the accuser’s previous statements to UCSD. The panel chair also refused to ask 23 of the 32 questions the accused student submitted.

The hearing’s highlight came almost immediately. After a brief opening statement by Grant Davis-Denny, who represented the University of California system, Justice Huffman interrupted to express his concern with the basic unfairness of the UCSD system. The two other judges quickly chimed in their agreement. Then Huffman noted, “When I . . . finished reading all the briefs in this case, my comment was, ‘Where’s the kangaroo?’”

 

The judges repeatedly expressed specific concerns about the procedures UCSD used, and why any university interested in fairness would have employed them. After a bit of pushback, Justice Irion was able to extract from Davis-Denny that it was this public university’s responsibility to produce a fair hearing:

 

Justice Huffman reiterated the value of fairness:

 

And here’s Justice Huffman wondering why—in a case that solely came down to the credibility of the two students—UCSD wouldn’t have turned over the notes from interviews with the 14 witnesses that had led UCSD’s own investigator to conclude that regarding the first of her two allegations, the accuser was not sufficiently credible for the university to bring charges:

 

Justice Irion made a similar point about the university’s decision to withhold the identities and the notes from the witness interviews. She was flabbergasted when Davis-Denny argued that withholding this information was justified because there was “no evidence in the record” that this (obviously relevant) information was relevant:

 

Davis-Denny attempted to respond to this argument by claiming that granting the accused student’s request would require full-scale civil discovery (Justice Irion was incredulous)–and then suggesting that it was at least possible, if unlikely, UCSD’s investigator didn’t rely on the interview notes in preparing her report.

 

Justice Nares, meanwhile, was especially concerned by the unfairness of UCSD’s “indirect” cross-examination, in which the accused student has to produce written questions in advance, which the panel might (or, this case, mostly might not) ask:

 

And like his colleagues, he was concerned with UCSD’s withholding of the notes:

 

In strongly discouraging cross-examination of accusers, the Office for Civil Rights has implied—but never directly stated—that cross-examination (which the legal scholar John Henry Wigmore, described cross examination as the, “greatest legal engine ever invented for the discovery of truth”) is somehow harmful to the pursuit of truth in college sex tribunals. The UCSD attorney dropped any pretense, and made the argument openly:

 

Finally, UCSD (in a line of argument often heard in discussions about campus sexual assault claims) championed the idea that due process means the college doing the minimum legally possible. Davis-Denny’s implication that this minimum essentially removed any role for judicial oversight drew a sharp rebuke from Justice Irion:

 

The judges also had tough questions for the accused student’s lawyer, Andrew Chang—but the questions here dealt with specifics of the case, not the basic unfairness of the system.

The decision remains pending.

Erdely-Jackie Conversations

If the Rolling Stone-Nicole Eramo trial is the Iran-Iraq war of academic due process (in that both sides are extremely unappealing), the 150-minute conversation between Sabrina Rubin Erdely and the hoaxer Jackie is something of a modern-day version of the Monica Lewinsky-Linda Tripp tapes–a long conversation between two people who enjoyed talking about themselves, with the older person pressing for information and the younger person alternating between imagined trauma and mundane gossip.

I’ll have a writeup on the tape, made public by CBS-19, at Minding the Campus. But below are some of the most pertinent brief excerpts. The two had their extremely lengthy conversation in a loud restaurant; the audio quality is mediocre.

At several points, Erdely made clear–despite later suggestions in response to the Phi Kappa Psi lawsuit against Rolling Stone–that her article would target the fraternity.

The incident, she suggested, was a gang rape fraternity initiation ritual:

 

The fraternity, Erdely believed, might well have a “culture of gang rape”:

 

Erdely said that she wanted to “get these guys”:

 

Phi Kappa Psi members, Erdely maintained, personified the “banality of evil”:

 

And Erdely presses Jackie to recognize how confronting her purported attackers would show that she had power over them:

 

Jackie, meanwhile, comes across as a fanatic.

After Erdely presses her to name Phi Kappa Psi to identify the initiation ritual, Jackie suggests she wants all fraternities to be subjected to a comprehensive investigation, on grounds that if they had done nothing wrong, they’d have nothing to hide:

 

Jackie also makes clear that she and her allies in the accusers’ rights movement welcomed bad publicity against UVA:

 

Both Jackie and Erdely see a non-existent campus, dominated by rape culture, in which people are terrified even to mention sexual assault. For good measure, Jackie talks about an imagined conversation with her catfish target, Ryan Duffin:

 

Erdely, meanwhile, imagines a campus in which students actively discourage victims from reporting:

 

The two have highly negative views of fraternities:

 

This clip, in which Jackie passes along allegedly negative information about Eramo, will be helpful to Erdely in the libel trial:

 

Finally, this clip, in which Jackie talks about why she stopped seeing a campus counselor, captures her me-centered, unappealing personality:

Likely Defeat for Due Process in 6th Circuit

In her impassioned dissent from the 6th Circuit’s DeBoer v. Snyder decision—the case that eventually would bring marriage equality to all 50 states in Obergefell—Judge Martha Daughtrey wrote, “The framers presciently recognized that two of the three co-equal branches of government were representative in nature and necessarily would be guided by self-interest and the pull of popular opinion. To restrain those natural, human impulses, the framers crafted Article III to ensure that rights, liberties, and duties need not be held hostage by popular whims . . . If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams.”

The Judge Daughtrey in yesterday’s hearing to consider the appeal of the two University of Cincinnati cases, by contrast, appeared to envision a judiciary powerless to “ensure that rights, liberties, and duties” were not “held hostage by popular whims”— a judiciary that would defer to federal dictates and powerful state institutions.

The usual caveats apply: oral argument doesn’t necessarily predict the outcome. But Daughtrey’s questions were so one-sided as to occasionally present a more aggressive argument than even the university’s lawyer offered. And neither of the other two judges on the panel, George W. Bush nominees Deborah Cook and Julia Gibbons, gave any indication that they would disagree with their colleague in the final opinion. If so, accused students in the 6th Circuit will effectively have no recourse to the federal judiciary.

I’ve written previously about the two Cincinnati cases, in which at times it appeared as if Cincinnati (a public institution) wanted to demonstrate its unfairness. The cases involved allegations of university officials improperly pressuring the police on behalf of the accusers; ignoring video evidence that might have exonerated one of the accused students; and allowing one accuser to testify and then flee the room before the accused student had a (very limited) opportunity to ask questions of her. This was, in short, an extremely well-argued, and remarkably well-documented, claim—one of the strongest cases of procedural misconduct by a university that I have seen on this issue.

To Daughtrey, these sorts of procedures (coupled with the usual restrictions in university processes against cross-examination, discovery of exculpatory evidence, and a fair standard of proof) might be troubling in a criminal justice context, but are acceptable for a university when determining whether or not a student is a rapist. In this clip below, Daughtrey rationalized why:

Even the university (or, for that matter, OCR) never suggested that accused students should be hauled before boards of inquiry—institutions most associated with the military, where members’ constitutional rights can be circumscribed. Daughtrey provided no insight as to why the treatment of a college student accused of sexual assault by another college student should be comparable to a member of the Army facing military discipline.

During the oral argument of Cincinnati’s lawyer, Daughtrey not only refrained from tough questions, but interjected out of concern that he wasn’t doing a good enough job arguing that UC was simply deferring to appropriate federal authority:

Yet, while OCR has ordered colleges to create less fair processes by lowering the standard of proof, allowing accusers to appeal, and imposing interim punishments, the allegations of bias against Cincinnati in this case involved procedures or decisions of the university itself, not of the university acting under OCR orders.

It was left to Joshua Engel, who represented the accused students, to explain to the panel why due process matters.

“The due process protections that exist in the civil system and in the criminal system,” Engel observed, “did not spring out of the earth and are imposed on parties for an arbitrary reason. They’re there because we believe that they’re valuable in the truth-finding process. So every time that you move away from one of these ideas—one of these protections—that are considered . . . a core due process protection, you lose some truth-finding process.”

Based on the oral argument, none of the three 6th Circuit judges cared. It’s more depressing that, it appears, very few universities care about this point, either.

Awaiting Developments at Brown

As we await final resolution of the first due process trial since issuance of the Dear Colleague letter in 2011 (at Brown), a few updates.

But, first, the basics of the case: the accused student was found guilty, by a 2-1 vote, on a theory that he had manipulated the female student into having oral sex. This outcome came after: (a) the Brown panel used a broader definition of consent, adopted in summer 2015, for an event that occurred in fall 2014; (b) Brown’s investigator declined to request from the accuser the full range of texts she sent to a friend—who harbored a dislike of the accused student, and who would be a key witness in the case; and (c) Brown had changed its sexual assault procedures, to create specially “trained” tribunals whose membership pool was more than 80 percent female (and whose male members seemed inclined to presume guilt).

Among the updates, the most important: Judge William Smith, a Bush II appointee, issued a preliminary injunction late last month in favor of the accused student. The decision, which Smith had telegraphed at closing arguments, allowed the student to enroll this fall. Smith’s order reiterated that he still could come down in Brown’s favor (though that seems unlikely). He also made clear in closing arguments that if he sides with the student, the victory would be at most a partial one, returning the matter to Brown to allow the university to try the student again.

Second, a campaign apparently initiated by a Brown student named Alex Volpicello has sought to pressure Smith to rule in Brown’s favor. (It is unclear if Volpicello has any relationship to the accuser.) Reflecting the newfound willingness of many elite students to trust the decisions of their university tribunals, no matter now unfair the procedures, Volpicello appeared untroubled by Brown’s lawyer suggesting at closing argument that a “power differential” (leading to coercion) might have existed between the two students—based on the fact that the two belonged to the same club (debate) and the male student was a year ahead of the accuser in school. Nor did the protesters find fault with Brown’s lawyer excusing Brown’s “training” materials on grounds that OCR required such training (but even OCR doesn’t require biased training); or citing OCR to explain away the investigator’s failure to ask for key text messages; or the impact of Brown’s “training,” which at least one panelist interpreted as requiring her to ignore exculpatory texts from the accuser sent after the alleged assault. Volpicello and associates launching their campaign through private letters/e-mails rather than through an amicus brief also suggests a desire to game the system. It seems unlikely that a life-tenured judge will be pressured in this way.

Finally, the preliminary injunction received some media coverage—both on campus, in the Brown newspaper, and nationally, through the Wall Street Journal. The Journal article, by Melissa Korn, had the tone (without ever saying so explicitly) that the accused student likely was guilty. Perhaps this was because it was informed by “the independent investigator’s report to the Title IX Council regarding [the accuser’s] complaint, a copy of which was reviewed by The Wall Street Journal.” The report, prepared by Djuna Perkins, wasn’t part of the public record of the case; given its (apparent) conclusions, it seems unlikely that the accused student or his lawyer leaked it to the WSJ.

That said, it was odd—given the reference to the report—that the WSJ didn’t mention Judge Smith’s repeated expressions of concern with Perkins’s work from the 95-minute closing arguments. For instance, Smith deemed Perkins’s explanation as to why she hadn’t asked for texts between the accuser and a key witness (that she already knew the duo harbored “animus” for the accused student) a “non-sequitur.” (Her argument, the judge continued, “doesn’t make any sense.”) Smith also worried that the investigator had exceeded her authority—Brown’s policy says the investigator isn’t supposed to tell the panel whether she thinks the accused student is guilty, but in this case she essentially did so by pronouncing the accuser more credible. (Why didn’t that “seal the deal” in the lawsuit, the judge asked Brown’s lawyer.)

Judge Smith described the heart of the accused student’s argument as “layered,” amounting to the following: (a) the university shouldn’t have used the 2015-2016 definition of consent for an event that occurred prior to its adoption; (b) even if it was OK for Brown to use the broader definition, it should have done so openly, to give the accused student a chance to defend himself, rather than telling the panel (but not the student) that the broader definition was in play; and (c) even if Brown had so told the accused student, what he did wasn’t manipulation, so he still should have been found not guilty.

Smith’s ruling in the bench trial is pending.

The Week in Durham

Although the lacrosse case technically ended many years ago, its legacy lives on. There was the removal of Mike Nifong’s successor (and would-be second chair if the case had gone to trial) Tracey Cline, also because of ethical improprieties. Or the publication of a revisionist book by William D. Cohan, who described Nifong as “crucified” for the sin of believing the “rational, thoughtful, articulate” Crystal Mangum. Or, at Duke, the revelation last year of a previously secret policy in which junior faculty with (unspecified) views the administration deemed “intolerant” would be told: “You have to go.”

But even for the wonderland that is Durham, events of this week were extraordinary. Radley Balko provided the background to the Darryl Howard case two years ago, and the allegations of prosecutorial misconduct only multiplied since then. The basics: in 1991, Doris Washington and her daughter were murdered in a gruesome fashion. It appeared as if they were also sexually assaulted—at least the police initially explored the question. But then Howard’s DNA (the test was done eight months after he was arrested) wasn’t a match for the rape kit from the daughter (initially there was no test done for Doris Washington’). So the prosecutor in the case assured the jury that the police never considered the matter a sexual assault, suggesting the two women had sex before the crime. And there’s no record the prosecutor turned over a police memo to the defense admitting that police had initially explored the crime as a sexual assault/murder. That prosecutor was Mike Nifong. Howard was convicted, and wound up spending 21 years in prison.

With more sophisticated DNA testing, in 2011, DNA from the mother’s rape kit was matched to a small-time local criminal, Jermeck Jones. The Durham Police Department brought Jones in for questioning, but proved remarkably non-curious about inconsistencies in his remarks. Here’s an excerpt of the exchanges.

Capture

For Jones’ entire time in the interrogation room, the Durham PD video recorded him, even as (briefly alone in the room) he chatted to an unknown party on his phone, saying, “I don’t want to rat on anybody.” More problematically, despite a court order requiring the Durham DA’s office to share all relevant evidence about the case with Howard’s lawyers, then-DA Cline’s office didn’t produce the video. Howard’s attorneys didn’t get it for five years, and the video emerged—with devastating effect—in this week’s hearing.

During the three-day hearing, the low point was this exchange between Barry Scheck and Durham Police detective Michele Soucie—who played a small role in investigating the lacrosse case, and who came across as at least somewhat honest. Soucie’s indifference to exploring whether the Durham Police had wrongfully convicted Howard is dispiriting.

It came as little surprise that Judge Orlando Hudson vacated Howard’s murder conviction. The Durham DA’s office announced intent to appeal—but changed its mind two hours later. In exchange, Howard’s attorneys agreed not to pursue a motion for sanctions against the Durham DA’s office. That motion would have led to testimony from Mike Nifong, under examination from Scheck. It’s perhaps easy to see why the Durham DA’s office didn’t want to go down that path.

In the last 24 hours, two more shattering announcement: an AP report revealed that 20 more Durham cases, including four prosecuted by the discredited Nifong, are under review. And on Friday came the announcement that no further charges will be pursued against Howard.

Nifong’s chief defender among the commentariat, author William D. Cohan, has not tweeted or otherwise commented about the events in Durham. (Indeed, to the best of my knowledge, he’s never mentioned the name Darryl Howard, even as he has celebrated Nifong’s “integrity.”) During the hearing, Cohan went on CNN to discuss his investigation into the first date of Anthony Weiner and Huma Abedin. His most recent tweet, as of Friday afternoon, was a photograph of a sunset.