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.


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.