Nifong Ethics Trial

This week was the tenth anniversary of the ethics hearing that culminated in Mike Nifong’s disbarment for ethical misconduct in the Duke lacrosse case.

On my twitter feed, I had posted some of the highlights, and reproduce them below:

Day One

Bar prosecutor Katherine Jean summarized the allegations:

Collin Finnerty’s lawyer, Wade Davis, recalled Nifong’s contempt when Kirk Osborn tried to outline Reade Seligmann’s alibi at an early hearing in the case:

In perhaps the most explosive testimony of the proceedings, DPD officer Ben Himan recounted his first meeting with Nifong, at which the DA acknowledged, with an expletive, the case’s weakness privately, even as he took the opposite approach in his pre-primary public comments:

 

Day Two

A taste of the testimony style of Dr. Meehan—labeled by the tribunal chair “Mr. Obfuscation”:

Dr. Meehan attempted to explain how his DNA might have wound up on the rape kit:

 

Day Three

Brad Bannon explained how he came to discover that Nifong had lied about exculpatory DNA evidence:

Bannon recalled an…unusual…conversation he had with Nifong, when the defense lawyers approached Nifong about his concealment. This conversation appeared in the draft version of William D. Cohan’s revisionist book defending Nifong, only to be deleted before the book went to press. Perhaps making this conversation look good for Nifong exceeded even Cohan’s skills as a propagandist:

Bannon explained why Nifong’s ethical misconduct made Roy Cooper’s innocence declaration so important. This section also

Day Four

Under questioning from State Bar prosecutor Doug Brocker, Nifong tried to claim all the lacrosse players weren’t really suspects, even though his office had obtained a court order saying precisely the reverse:

Tribunal chair Lane Williamson pressed Nifong on his stated “old-fashioned” desire to prosecute the case based solely on Crystal Mangum’s changing tales, ignoring the exculpatory DNA evidence:

On the stand, Nifong admitted that he didn’t read the letters or discovery requests that came in from the defense attorneys:

Sealing his fate, Nifong—without pointing to any evidence—claimed that “something” (nonsexual) happened:

Day Five

Lane Williamson was at his best, noting the apparent lack of an “ethical dimension” in Mike Nifong’s psyche:

Williamson pressed Nifong’s lawyer on why the DA seemed so disinterested in exculpatory evidence:

In an extemporaneous, wonderfully structured address, Williamson explained the rationale for the committee’s decision to find Nifong guilty:

 

Cohan, Embittered

Imagine the humiliation a few years back experienced by author William D. Cohan. His book on the Duke lacrosse case was panned by virtually every reviewer who knew anything about the case. He then optioned the laboriously written volume to ESPN, only to see the resulting “30 for 30” documentary categorically reject his conspiratorial thesis: that the real hero of the lacrosse case was Mike Nifong, and that “something” happened (but Cohan wouldn’t say what) in the lacrosse captains’ bathroom that in some way corroborated one of Crystal Mangum’s myriad, mutually contradictory tales (Cohan wouldn’t say which one).

With his book’s chief sources being a convicted liar and a convicted murderer, who could have guessed that Cohan would have gotten the story spectacularly wrong?

When the “30 for 30” documentary appeared, Cohan penned a bitter essay, crystallizing the errors of his book into short-form. Now he’s back, using the excuse of Stephen Miller’s prominence (well after other, more thoughtful writers had explored the same issue, from the same general ideological perspective) to again slime the lacrosse players.

The essay’s most remarkable disconnect from the facts is this: “Based on Mangum’s allegations and her subsequent absolute identification of her alleged assailants after reviewing their photographs on a computer, a Durham County grand jury indicted the three—David Evans, one of the senior co-captains, and two sophomores, Reade Seligmann and Collin Finnerty—on criminal charges of first-degree rape, sexual assault, and kidnapping.”

Mangum, in fact, identified four people in the April photo array (her second time looking at photos of most of the lacrosse players). Only two of her IDs, not three (as Cohan implies) or four (as she made) were “absolute.” The only problem with her “absolute” IDs? They were provably false, though photographic, testimonial, and electronic evidence. The photo below is of Seligmann, at the time the “attack” allegedly occurred.

Reade_Seligmann_ATM_photo_2

Even in Durham, it’s not possible to be in two places at once.

As for the Evans ID—even Cohan hero Mike Nifong didn’t consider it “absolute” enough to seek an indictment immediately. The actual identification, unrevealed to Vanity Fair readers? Mangum was 90 percent certain that Evans attacked her, with one caveat—he had a mustache on the night of the attack. But photos taken from the night before and the day after showed him with no mustache.

And the “absolute identification” that Cohan celebrates in this ostensibly liberal essay? Nifong had ordered the Durham Police Department to violate its own procedures and confine the photo array to white members of the lacrosse team. There were no fillers, and thus no wrong answers for Mangum. Do Vanity Fair readers (and the magazine’s editorial staff) believe that other police departments should use this type of identification procedure? This type of abuse is far more likely to be directed against African-Americans or Hispanics. It’s interesting that Cohan elected not to share with Vanity Fair readers the procedures used to produce his cherished “absolute identifications.”

There was one lacrosse player that Mangum identified, with 100 percent certainty, as having seen at the party. The only problem? He was able to prove he wasn’t even in Durham County the night of the party. Nifong knew of the faulty identification and still went ahead with indictments.

Cohan’s embrace of a transparently rigged procedure is consistent with his book’s more general contempt for civil liberties, and in particular for prosecutors and law enforcement following procedural norms. Here’s another example: “On March 23, at the detectives’ request, a local judge issued a non-testimonial order, or NTO, requiring the white lacrosse players to submit DNA samples to the Durham police. (The players’ attorneys had previously blocked the police’s request to provide the DNA voluntarily.)”

One of the students’ attorneys had objected to the Durham Police Department’s desire to interrogate the students outside the presence of counsel (something Cohan conveniently doesn’t mention—does he believe criminal suspects should chat with the police without their lawyers present?); they were willing to negotiate about interviews in the presence of counsel, a prospect that didn’t interest the DPD. Nifong’s office then sought the NTO, requiring all the white lacrosse players to give DNA.

No justification existed for such a broad NTO, since at that point in the case, the Durham Police Department had no idea how many of the lacrosse players attended the party. The demand, therefore, might have been beaten back in court—but the lacrosse players’ lawyers explicitly chose not to fight the order. They represented innocent clients, and they also recognized under North Carolina law, not fighting the order ensured that Nifong would need to hand over to them the full results of all tests done from material obtained from the NTO. It was Nifong’s decision to conceal this evidence, and his lying to the judge about his concealment, that set into motion his undoing.

More abstractly: Do Vanity Fair readers (and the magazine’s editorial staff) believe that other prosecutors should be able to use group identity as sufficient cause to obtain a citizen’s DNA? This type of abuse is far more likely to be directed against African-Americans or Hispanics.

The rest of the essay’s discussion of the case mostly consists of character assaults on the lacrosse players, embedded within a lengthy, almost voyeuristic, recapitulation of what Cohan sees as the worst elements of the lacrosse players’ spring break party. He repeats his inaccurate claim that the falsely accused players each received a $20 million settlement from Duke. (As in the book, he seems remarkably non-curious why Duke would have been willing to part with approximately $20 million total, not $20 million apiece, if the university weren’t highly vulnerable to a lawsuit.) Even though Nifong exploited the case in a desperate, and ultimately successful, effort to maximize the black vote in both the Democratic primary and then in an unexpectedly competitive general election, Cohan fantasizes that if the races of the parties were reversed, in the particular context of Durham, spring 2006, the case would have gone to trial—even though Nifong never would have had a political motive to have become involved in the case at all.

As he did in both the book and especially in his 2014 book-related publicity appearances, Cohan uses the Miller essay to imply that former Duke Trustees chairman Robert Steel supports his conspiracy-laden thesis. Yet Steel, in a 2014 e-mail to Stuart Taylor and me, repudiated Cohan’s efforts: “I have no view now, nor have ever had a view of what if anything happened in the bathroom. Period.”

Here’s what Cohan has to say about Miller, the ostensible subject of his screed: “A columnist for The Chronicle, the Duke student newspaper, Miller defended the lacrosse players in print, despite nearly universal condemnation of them by others on campus and in the media.”

Whatever you think of Miller’s politics (and I don’t think much of them), isn’t this record a good thing? A student commentator, facing a campus environment of “nearly universal condemnation” (at least among the faculty and administrators), stood up for due process—and was ultimately vindicated, when the case constructed by Mike Nifong collapsed.

In his long essay, Cohan couldn’t find room for one word: “innocent.” That’s the evaluation of the case by then-North Carolina Attorney General Roy Cooper, after SBI investigators and two senior attorneys from his office comprehensively investigated the case.

According to Cohan, at 2.36 of the video above, the attorney general only “declared the three lacrosse players not guilty.”

Miller, whatever you want to say about his current politics, got the case right. Cohan got it wrong. No amount of intemperate Vanity Fair essays will alter those facts.

Specifics & Narrative

The Washington Post’s Monkey Cage blog has a piece up today—by UNC political science professor Frank Baumgartner and one of his students, Sarah McAdon—examining how media coverage of campus sexual assault has changed in recent years. Their general point seems correct: that the mainstream media, at least, and especially the Post and the Times, has devoted less coverage to individual cases and more to broad, impossible-to-verify statistics. Put another way: the media has chosen a narrative (that a campus rape epidemic exists) and haven’t looked too hard at individual cases that might complicate or even contradict the narrative.

To Baumgartner and McAdon, this shift seems like a good thing—a “sea change” that “has the potential to re-frame how the public sees the issue, shifting it from one in which sexual assault appears as an aberration to one that acknowledges the suffering of victims of these crimes even more than does news coverage of occasional cases.”

Armed with such a bias, perhaps it’s unsurprising that their op-ed shows bias itself. First, here’s how the duo describes the lacrosse case: “In 2006, a woman accused members of the Duke lacrosse team of sexual assault, but the three players who went to trial were found not guilty.”

Of course, the three falsely accused students were declared innocent, a far higher standard than a “not guilty” finding—after an investigation by then-North Carolina attorney general Roy Cooper. (Cooper is now the state’s Democratic governor.) It’s not clear why Baumgartner and McAdon believe a trial occurred in the lacrosse case, and why they chose to describe an innocence declaration as a not-guilty finding.

A bit later in their op-ed, the duo make the following point, to confirm the prevalence of the problem and support their assertion that universities under-report sexual assaults: “More recently, a 2016 Bureau of Justice Statistics study found that 21 percent of female students currently in college reported being assaulted in college.”

The BJS is a problem for campus rape activists, since the bureau’s major study of the issue—one actually done by BJS employees—shows a far, far lower rate of sexual assault of college students than the Obama administration’s preferred figure. The 2016 study (of nine schools) that Baumgartner and McAdon cite, by contrast, was funded by the BJS, but was not performed by BJS researchers.

It included the following caveat: “Any opinions and conclusions expressed herein are those of the author(s) and do not necessarily represent the views of BJS and the U.S. Department of Justice.” Why, then, did Baumgaertner and McAdon cite the material as a “Bureau of Justice Statistics study”? Perhaps for the same reason they erroneously described the lacrosse case’s resolution.

Focusing on the narrative, rather than the specifics, does have its flaws.

[Update, 12 May, 7.42pm: Earlier today, I contacted the Post corrections desk, noting the two errors in the MonkeyCage item. A few hours later, one correction was made. The erroneous claim that a study that does “not necessarily represent the views of BJS and the U.S. Department of Justice” nonetheless qualifies as a BJS study remains. The claim about a non-existent lacrosse trial was removed, but replaced with this curious wording, with the correction in italics:  “In 2006, a woman accused three members of the Duke lacrosse team of sexual assault, but the charges were dropped when an investigation found no credible evidence.”

Oddly, the correction still refused to admit that the players were declared innocent by the state’s attorney general. But even odder was the added link. The authors linked not to news coverage of Attorney General Cooper’s April 2007 announcement that he was dropping charges because the players were innocent. Instead, they linked to an article published more than eighteen months later, published by the New York Times. Its headline? “North Carolina: Attack Claim Repeated.” The article described publication of false accuser Crystal Mangum’s memoir.

Linking to a lie is an unusual strategy for a “correction.” It seems as if the authors wished to be defiant in their bias.]

 

 

 

Key Amherst Decision

Of all the campus cases since the Dear Colleague letter, the Amherst case is the worst. This case featured a student (JD) who not only could use his accuser’s own words to prove his innocence, but could demonstrate from the college’s own findings that he was, plausibly, a sexual assault victim—and yet the college culminated a biased process by expressing disinterest in his evidence. If Amherst could get this lawsuit dismissed, it would be hard to imagine any set of facts in which an accused student could be certain of prevailing.

On Tuesday, however, Judge Mark Mastroianni, an Obama appointee, allowed the lawsuit to proceed. You can read the decision here. I’ve written extensively about the Amherst case, and also the May 2016 hearing that led to the ruling. Robby Soave also has an excellent summary of the ruling.

The ruling keeps alive all of the core elements of the lawsuit—the breach of contract claim that Amherst didn’t even follow its own rules; the good faith/fairness claim; and the Title IX claim. Mastroianni allowed multiple aspects of the Title IX claim to proceed, including a claim of deliberate indifference for Amherst’s unwillingness to investigate the accusing student (who I’ll call A.S.) for possible sexual assault. He also seemed to anticipate that at the next stage of the case, Amherst would try and get around the breach of contract claim by suggesting that the student handbook wasn’t a contract.

The only major claim he dismissed was JD’s racial discrimination claim, with the judge noting that no specific evidence existed to corroborate the claim. This is true. It’s also true that Amherst’s own sexual assault policy Oversight Committee was the organization that initially made the claim, “despite,” Mastroianni noted, “being unable to document past instances of racial disparities in disciplinary proceedings.” (The committee’s “evidence” focused around a claim that white students would find it easier to hire lawyers.) The judge didn’t explore what it said about Amherst’s overall procedural unhealthiness that an important sexual assault committee could offer fact-free musings based on nothing more than stereotypes.

Most of the ruling was what could have been expected given the strength of the claim. But two aspects of the ruling stood out as a bit surprising.

Judge Mastroianni’s Impressions

There’s little reason to believe that Mastroianni was eager to make this decision. In a case at UMass, he sided with the university, despite ample grounds for doubting UMass’ fairness. In this case, he waited nine months (and a day) after the hearing in the case to render his decision, which cited every recent 1st District campus sexual assault decision but one—the Brandeis opinion written by Judge Saylor. Saylor’s was, by far, the most comprehensive sexual assault opinion in explaining the shortcomings of a college or university disciplinary process, and the opinion was extensively discussed (by both sides) in the May hearing.

Mastroianni didn’t explain why he didn’t cite the Brandeis opinion. But at the very least, his choice suggests a judge who isn’t eager to vindicate the rights of accused students. That background makes all the more remarkable some of the passages from Mastroianni’s opinion, with emphasis added in each case.

Here’s how he described A.S.’s behavior on the night in question: “In the course of the text message exchange, [A.S.] stated that she ‘fucked’ Doe and proposed lying to others about what happened, expressing concern about the fact that others, including RM, had seen her kissing Doe in the common room, and her belief that Doe ‘was too drunk to make a good lie out of shit.’”

Here’s how he described JD’s approach to the hearing: “Doe relied on the investigation conducted by [Allyson] Kurker as he prepared for the hearing. No College employees, including his advisor, Torin Moore, Assistant Dean of Students and Director of Residential Life, advised him to conduct his own investigation. Indeed, based on his conversations with Moore and [Title IX deputy coordinator] Mitton Shannon, he believed a confidentiality policy prevented him from conducting his own investigation or even seeking emotional support from other students. Doe had no knowledge or experience with disciplinary hearings, let alone the experience or knowledge necessary to effectively advocate on his own behalf, and he was emotionally distraught.”

Here’s how he described the hearing and the omission of the key evidence: “Twice during the hearing, references were made to [A.S.]’s text message exchanges after Doe had left her room; text exchanges that were not obtained and reviewed by the investigator or otherwise presented to the Hearing Board . . . Jones was not asked to produce the text messages.”

And here’s how he described the text messages: “The text messages [A.S.] and DR exchanged directly discuss the interactions between [A.S.] and Doe. On their face, the text messages suggest that [A.S.] viewed herself as the initiator of the sexual activity. They also include expressions of hatred of Doe, initiated by DR, to which [A.S.] agreed . . . These texts can be read in a way that raises additional questions about the credibility of the version of events [A.S.] gave during the disciplinary proceeding against Doe.”

To be sure, Mastroianni noted that “at this stage in the litigation, the court must accept as true the factual allegations made by Doe and must make any reasonable inferences favorable to his position.” But this is a very unusual case, given the volume of information provided in the complaint. (Representing an innocent client broadened the tactics open to JD’s legal team.) JD’s lawsuit included all the evidence Amherst possessed (or should have possessed) to adjudicate his case—the hearing transcript, the investigator’s report, the text messages. The “facts” as presented by JD—and as described above by the judge—are unlikely to change later in litigation.

Of course, judges can and do find for colleges even when they believe the accused student might be innocent. (Recall the Case Western Reserve case.) But the fact that Mastroianni appears to have formed accurate impressions about many of the key facts in the case can’t be seen as a good sign for Amherst. That these passages came from a judge who didn’t appear ideologically inclined to side with the accused student makes them all the more powerful.

A.S.’s Record as an Accusers’ Rights Activist

In allowing the Title IX portions of the lawsuit to proceed, Mastroianni avoided any mention of the important 2nd Circuit Columbia case. That decision suggested that a frenzied campus atmosphere (which Amherst experienced to an even greater degree than Columbia) could in and of itself provide the necessary baseline to allow a Title IX complaint to survive a motion to dismiss. As with the omission of the Brandeis decision, Mastroianni appears to have chosen to ignore the most favorable decisions for accused students.

Instead, Mastroianni relied on two other “credible anecdotal references” to sustain the Title IX complaints. First was the fact that, according to the disciplinary panel’s own findings, JD was blacked out at the time A.S. initiated sex with him, thus rendering him incapable of consenting, but Amherst never investigated the accusing student for sexual assault. Second was A.S.’s record as a campus accusers’ rights activist.

As Mastroianni explained, the complaint “also alleges that at the time [A.S.] filed her complaint she was involved in a student-led movement to compel the College to change the way it handled sexual assault allegations, including by expelling a male student accused of sexual misconduct. He further asserts the College was actively trying to appease the student-led movement and was aware both [A.S.] and LR were involved with the student-led movement.” In fact, the opinion (in various ways) references A.S.’s involvement in the campus accusers’ rights movement four times.

In the process, Mastroianni gave unusual attention to a document that received comparatively little attention in the briefings, and virtually no attention in the May oral argument—JD’s internal appeal at Amherst. You can read the document here, and Amherst’s cursory rejection of the appeal here.

In the appeal, JD brought attention to remarks that A.S. made after the hearing panel rendered its decision. The remarks themselves are blacked out, but A.S. did have an interview with the Huffington Post that was published as the college was considering the appeal. In a passage that could easily be read as a pressure tactic against the college, A.S. told Tyler Kingkade, “The typical laptop thief is suspended for five semesters. Rapists are not suspended for that long, if at all. No rapist convicted by a hearing board has been expelled from Amherst in 20 years. That’s unacceptable and something Amherst has to change immediately.” Kingkade did not identify A.S. as an accuser in a pending sexual assault appeal.

JD noted that two of his witnesses—seeing A.S.’s comments—recognized that the zeal with which she advanced a broader accusers’ rights agenda might well have given her a motive to lie. But Amherst denied the appeal, suggesting, “Whatever broad political agenda [A.S. and LR] may have had or not is immaterial to the panel’s decision.” Imagine the reaction of an Amherst professor if a student made that sort of argument about evidence in a research paper.

By establishing as central to the case A.S.’s accusers’ rights activism—particularly at the time of the hearing panel’s decision—Mastroainni’s opinion undercut the already extremely dubious rationale by which Judge James Robart not only denied JD an opportunity to depose A.S., but allowed A.S. to avoid producing relevant documents.

In the subpoena, JD asked for, among other things, “all communications, including text messages or emails, between you and anyone else on February 5, 2012”; “all notes, journal/diary entries, recordings, transcripts, or other memoranda by you relating to Your Complaint, the Investigation, John Doe, [and] the John Doe Disciplinary Process”; and “any and all communications with witnesses in the John Doe Disciplinary Process concerning the topic of sexual misconduct, the John Doe Disciplinary Process, Your Complaint, John Doe, and/or your interactions with John Doe on February 4-5, 2012.”

Robart quashed the subpoena first by suggesting that being deposed and (to a lesser extent) having to turn over documents would traumatize A.S.—though, of course, if A.S. filed a false accusation, it’s hard to see why the trauma from having to re-live that unfortunate decision would be relevant. Second, Robart claimed that Amherst officials could supply all the relevant material—though, of course, many of the documents that JD requested would never have come into the possession of Amherst officials.

Now that Mastroainni has placed A.S.’s contemporaneous accusers’ rights activism front and center, Robart’s claim that A.S. would possess no relevant information is unsustainable. The circuitous reasoning of his initial decision to quash the subpoena makes it entirely possible Robart will refuse to back down. But given that Mastroainni’s opinion suggests that it’s plausible, based on the facts before the court, to deem A.S. a possible perpetrator of sexual assault, perhaps it’s time for Robart to drop the trauma claim.

To date, Mastroainni’s important decision has received no mention in the Amherst student newspaper.

Latest News from Williams

The lawsuit against Williams, about which I have written previously, was delayed until the accused student exhausted his appeals at the college. The result: the college granted his appeal. It remanded the case to the original hearings panel—which promptly found him guilty again. The result was an amended complaint, which you can read here.

A quick summary of the case, which operated on three levels:

(1) Both parties to the case were unappealing. But unappealing students deserve fair treatment just as much as appealing ones.

(2) The accuser was a Williams employee, but received kid-gloves treatment throughout by Williams—in a way that would have been inconceivable if the employee were a man and the student he allegedly mistreated a woman.

(3) The employee had a pattern of filing what appear to have been retaliatory complaints against the student. Williams not only refused to treat the complaints as retaliatory, but refused to consider the effects of the first complaint’s failure on the employee’s credibility for the second complaint.

Beyond the troubling elements from the original complaint, the amended complaint raises four new areas of concern with how Williams handled the case:

(1) Credibility issues don’t matter, at least when the accuser’s credibility is in question. The involvement of Williams’ disciplinary process in this couple’s relationship came after a fight at a party (when the employee slapped the student). The employee (who risked losing her job if the student reported her) then claimed that she had written course papers for the accused student. He was charged with violating Williams’ academic rules—but was eventually found not guilty.

It would seem obvious that having falsely accused her ex-boyfriend of improper behavior once would weaken the employee’s credibility in any other claims she made about her ex-boyfriend. That’s especially so in a case like this one. The employee initially charged the accused student with cheating (after she slapped him). Then, after he charged her with stalking, the employee filed a complaint that he had “displayed abusive behavior” in their relationship. Only in the midst of that investigation did she file a sexual assault complaint—about an incident in which there were no witnesses, and that (by her own admission) came on one night in the middle of the relationship, with no impact on the relationship.

The Williams disciplinary panel in the sexual assault case not only elected not to connect the accuser’s refuted allegation with the sexual assault case, it tried to revive her credibility. It conceded the accused student wasn’t guilty of academic misconduct—despite the employee’s claim (after slapping him) to the contrary. But it added that there was not “a preponderance of evidence to suggest that [the employee] falsely accused you, as it is possible she believed she had written papers for you.” [emphasis added]

This is an extraordinary statement. In trying to prop up the employee’s credibility in the sexual assault case, the Williams panel portrayed her as delusional—someone who might have “believed” something that even Williams conceded wasn’t true. If the panel conceded that (at best) the employee was delusional, how could it credit her claim about sexual assault? Williams hasn’t said.

(2) Playing fast and loose with sexual assault definitions. The original panel found that it was at least 50.01 percent certain that the accused student hadn’t obtained “affirmative consent” for sexual intercourse one night in the middle of a nearly two-year relationship. For the 2015-2016 academic year, Williams had redefined sexual assault to include an “affirmative consent” provision (which effectively requires the accused student to provide his innocence). The only problem: the incident for which the accused student was charged occurred in October 2014, or before Williams dramatically expanded what constituted sexual assault. At the time, Williams required what it described as “effective” consent, a regime in which “both parties have the obligation to communicate consent or the lack of consent.”

Williams’ appeals officer admitted that “the two policies are different, including with respect to the requirement for affirmative consent.” She therefore granted the accused student’s appeal and remanded his case to the original panel—which promptly found him guilty again, on grounds that he had not obtained “effective” consent. In other words: the same hearing panel that initially found the accused student guilty essentially substituted “effective” for “affirmative” in its judgment despite the substantial difference between the two standards. (The wording changed from it was “more likely than not [the accused student] did not have affirmative consent to sexual intercourse with” the employee to “it was more likely than not that [the employee] did not provide effective consent.”)

The issue of colleges finding students guilty of standards adopted after the incident in question has appeared with disturbing regularity—most recently in cases at Brown and Western New England. Williams tried to get around any legal problem by claiming that its pre-affirmative consent standard “used other language . . . to express the same concept.” This is very similar to the argument that Brown offered, unsuccessfully, before Judge Smith.

(3) Limiting information. Williams hires an “investigator” to conduct initial interviews; the “investigator” then prepares a report for the hearing panel. The accused student asked for transcripts of interviews conducted by the “investigator” in his case—Allyson Kurker, whose notorious performance in the Amherst case raises questions as to why Williams would have hired her.

Williams initially promised the transcripts, but then turned over only the transcripts for two of the three interviews with the accused student. The rationale? “The college procedures do not provide for giving interview transcripts to the parties to a sexual misconduct disciplinary proceeding. The interview transcripts are not routinely provided to the college.” Why wouldn’t a college like Williams want to provide an accused student with this obviously relevant information?

(4) Reports from a Williams whistleblower don’t inspire confidence. The amended complaint includes several quotes from a pseudonymous source who says that he had served in college disciplinary cases. He reported that the training Williams panelists received was “not comprehensive by any stretch of the imagination, not even close,” and that panelists were taught that “the reputation of the college is the number one priority,” to such an extent that Williams “makes things up as it goes along.”

Williams’ next filing is due on March 10.

Latest in the Montague Case

The latest filings in the Jack Montague case at Yale confirm why negotiations between the two sides (which delayed the filing of the lawsuit) failed. Yale’s filing, though full of condemnatory passages about Montague, failed to answer the critical procedural question of the case: why did the university not adhere to its own procedures—publicly affirmed by Stephanie Spangler, who supervises Yale’s sexual assault adjudication system—regarding the limited circumstances in which the Title IX office can file complaints on its own?

The issues at play:

Fast & Loose with Procedure, I

Montague’s was a case that never should have been brought. The accuser was unwilling to file a complaint herself—despite strong pressure from Yale’s Title IX officials to do so. So Yale’s Title IX officials filed the complaint themselves—ignoring the fact that the university’s own procedures gave the Title IX office very limited justifications (none of which applied in this case) to substitute itself for the accuser as the complainant.

Stephanie Spangler, the person in charge of Yale’s sexual assault adjudications since 2011, was blunt on this issue (before Montague filed his lawsuit). On February 15, 2016, in an official Yale report, she stated, “Only in extremely rare cases, where there is serious risk to the safety of individuals or the community, will the University take independent action.” [emphases added] After charges were filed against Montague (but before the Title IX office’s involvement was public), Spangler told the Yale Daily News, “Except in rare cases involving an acute threat to community safety, coordinators defer to complainants’ wishes.”

So how did Yale explain this critical discrepancy? With the following assertion: “Nothing in the Report suggests that in this circumstance the Title IX Coordinator is empowered to file a complaint only where there are ‘risks to the safety of individuals and/or the community.’” Nothing, that is, except the words of the person who wrote the Report, in sentiments that she confirmed in a subsequent interview.

The most recent Spangler Report, produced after Montague filed his lawsuit, didn’t include Spangler’s damning admission.

Fast & Loose with Procedure, II

In the original complaint in this case, Montague’s lawyers asserted that not only was the decision to file the claim against Montague improper—but that Yale officials had violated procedure in other ways. The accuser made perfectly clear that she wanted to handle the matter through the informal process (in which, at Yale, the accused student is always found guilty, but only receives counseling, and can’t be suspended or expelled). The Title IX office initially appeared willing to go along with this route, but then something changed, and Title IOX officer Angela Gleason suggested that Montague had previously been found guilty of sexual misconduct. But this information was supposed to be secret.

In depositions, two Yale Title IX officials clearly admitted that they were obligated not to share Montague’s disciplinary history, as they unconvincingly claimed they hadn’t done so. Excerpts below:

1


2


3


 

 

The fact-finder appeared to recognize there was something wrong here. In her draft report, she noticed that Yale Title IX official Angela Gleason had relayed something “slightly different” about the amount of information the Title IX office had shared with the accuser. The fact-finder worried that the report was providing “too much information about his prior record, which is not relevant to this investigation.” It’s easy now to see why the fact-finder was concerned.

The response of the Yale Title IX official to this problem? In her deposition, she suggested that the accuser had been untruthful in her statements to the Yale fact-finder about her conversations with the Title IX office. (Yet in its filing, Yale offers the accuser’s version of events, including specific details, as wholly true.)

4

As for the other Yale Title IX official deposed: he simply ignored the Spangler guidelines and offered an after-the-fact justification for why his office could file a complaint.

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Fast & Loose with Procedure, III

Yale has—at least superficially—been more transparent than any other university in how they handle sexual assault allegations. A few years ago, they described a series of sexual misconduct scenarios, and the punishment that perpetrators would receive. In the scenario that most resembled the actions for which Montague was found guilty, Yale’s own document asserted that the “penalty would likely be a reprimand.”

Yale bypassed its own recommendation by deeming the incident Montague’s second occasion of sexual misconduct—with the first being a time as a freshman when, after a drunken, verbal argument outside a bar, he shoved a paper plate into a female student’s chest. But there was no indication this incident was gender-related (if the argument had been with a male, it doubtless would have unfolded in the same way), and discovery brought notice even from a Yale official that even some (specially trained, no less!) members of the Yale sexual harassment panel might not see this as a sexual misconduct question.

This, by the way, is the same “prior record” that Yale’s investigator described as “not relevant to this investigation.”

Does Yale Adjudicate Sex Crimes?

The most common defense universities use for weakening due process protections for accused students is that campus tribunals, unlike the criminal justice system, can’t send an accused student to jail—because they only investigate whether a student violated the university’s code of conduct, not a criminal statute.

And yet here are some quotes from Yale’s brief: “The plaintiff’s sexual assault of Ms. Roe”; “Ms. Roe did not report the sexual assault”; “nearly a year had passed between [Montague’s] sexual assault of Ms. Roe”; and, most bluntly, “On the night of October 18, 2014, the plaintiff, Jack Montague, sexually assaulted Jane Roe.” Throughout its motion, Yale simply presents as fact the accuser’s unverified assertions of an event that even the university’s fact-finder conceded lacked “direct witnesses to the sexual encounter between the parties.” The university’s apparent belief is that that a panel decision finding the accuser’s overall version of events more believable than Montague’s—even if, as preponderance allows, only by a margin of 0.2 percent—then everything the accuser recalled of the evening, more than one year later, is true. This is a case, moreover, where even one of the accuser’s friends, and supportive witnesses, confessed that the accuser “had no romantic feelings for [Montague] but she was sexually attracted to him,” a point of view that seems to corroborate Montague’s version of events.

It seems, in the end, as if Yale plays down the actual issue its adjudicators decide—when it needs to justify why it provides so few procedural protections to accused students. But then, once a guilty finding has been made, Yale is willing to state, in a legal filing, that its student committed an offense that Connecticut law considers a felony.

Harm?

According to Yale, Montague waited too long to file his motion, and therefore couldn’t have suffered irreparable harm from the university’s actions. (Much of this “delay” was a result of discussions between Montague’s lawyers and Yale, in the hopes of avoiding a lawsuit or avoiding needless claims in a lawsuit.) This is a case, it’s worth recalling, in which the accuser waited nearly a year to speak to Yale Title IX officers, and never filed a complaint herself. The university had no problem with her delay.

Yale, oddly, claimed that Montague failed to challenge the “accounts of the events giving rise to the discipline imposed upon him”—even though he has consistently done so from the first time this case reached the courts. The university also claimed that—having been publicly identified as someone who committed sexual assault, including by CBS Evening News and (before the Facebook posting mysteriously vanished) Yale’s own Women’s Center—its former student’s record “does not suggest any reputational injury.” Yale also, comically, blamed Montague for the publicity the case received, because his lawyer or his father responded to press inquiries as the accuser’s supporters were publicly attacking him, including in use of confidential material whose dissemination a Yale official said the university was powerless to stop.

In its most brazen line of argument, Yale asserted that even a (temporary) legal victory could not remove the effect of its actions, since “entering a preliminary injunction at this time will do nothing to remove the public stain which [Montague] claims is causing him harm.” It’s true, at least in part, that even a judicial victory won’t allow Montague to fully restore his reputation. (I doubt CBS Evening News will devote a segment to a hypothetical Montague victory in court, to balance its guilt-presuming segment on Yale’s initial actions.) But the idea that a judicial rebuke of the university would do “nothing” to improve Montague’s public standing curiously implies that Yale’s disciplinary process deserves such respect that even an unfavorable court action shouldn’t call into question the university’s determination.

Intoxication Levels as Justification

Yale contended that the panel correctly sided with the accuser because—while Montague admitted that he was drunk—she “was not intoxicated or otherwise impaired in any way that would have affected her recollection of those events.” By contrast, DePauw, Vassar, Michigan, Tennessee-Chattanooga, UCSD (and myriad other institutions) have maintained either that the accuser being intoxicated enhanced the credibility of her claims, or that the accuser’s intoxication level could not in any way be used to minimize her credibility. Yale’s argument suggests that for universities, when addressing questions of alcohol and sexual assault, the accuser is inherently credible, regardless of whether she’s intoxicated.

The case remains pending.

Amherst Accuser Skirts Deposition

As the Amherst case moves toward eight months awaiting a ruling after a preliminary hearing, there was a minor development in the case: recent filings by the college, related to a delay of deadlines for subsequent filings, revealed that the accusing student (who I’ll call A.S.) successfully quashed the accused student’s subpoena. The ruling thus ensured that not only would A.S. not be deposed, but she would not need to produce any relevant documents in the case.

I’ve previously written about the Amherst case—perhaps the most egregiously unfair of the myriad due process cases that have emerged since the Dear Colleague letter. Having myself successfully resisted a third-party subpoena (when Duke attempted to compel me to reveal my sources in the lacrosse case), I’m sensitive to the ways in which the civil process can be abused. But the suggestion here that A.S.’s interests outweigh the obvious relevance of her testimony is puzzling.

In a ruling that was a model of circuitous reasoning, Judge James Robart, a Bush appointee, gave A.S. the benefit of the doubt on close legal issues because of her status as a sexual assault victim—in a case that challenged the basic fairness of the only proceeding that deemed her a sexual assault victim. (Despite an offer of facilitation by an Amherst administrator, A.S. pointedly declined to file a criminal complaint with police. Perhaps she realized that if she did so, she wouldn’t be able to conceal the text messages that undermined her credibility.) In so doing, Robart essentially accepted the legitimacy of Amherst’s procedurally dubious adjudication.

Robart ruled out a deposition on grounds that it “would force [A.S.] to relive a night in which she asserts Mr. Doe sexually assaulted her.” This was “heavy burden,” he argued, because “a live deposition would impose emotional and psychological trauma upon [A.S.].” Any “emotional and psychological trauma,” of course, would come only if A.S. was telling the truth when she testified to the Amherst panel—and the lawsuit provides considerable information, much of it from A.S.’s own texts, that calls into question the accuser’s truthfulness.

Even Robart conceded that supplying requested documents wouldn’t impose psychological trauma on the compromised accuser, but he ruled that the accused student’s requests were either “overbroad” or consisted of “communications that could readily be obtained from other sources” (that is, people who work at Amherst). Yet much of the requested material couldn’t come from Amherst employees. For instance, a critical aspect of the accused student’s case is the basic unfairness of an adjudication that went forward under the false premise that A.S. had not reduced anything about the incident to writing. So the subpoena asked A.S. for “all communications, including text messages or emails, between you and anyone else on February 5, 2012.” The only conceivable source of this material would be A.S., not any Amherst employees.

The subpoena also requested “all notes, journal/diary entries, recordings, transcripts, or other memoranda by you relating to Your Complaint, the Investigation, John Doe, [and] the John Doe Disciplinary Process”; and “any and all communications with witnesses in the John Doe Disciplinary Process concerning the topic of sexual misconduct, the John Doe Disciplinary Process, Your Complaint, John Doe, and/or your interactions with John Doe on February 4-5, 2012.” This, too, is material that’s critical to evaluating the fairness of Amherst’s disciplinary process, which no Amherst employee could provide.

Although the case was decided in Washington (where A.S. now lives), Judge Robart cited no precedents from Washington, or from Massachusetts, where the lawsuit is being tried. He primarily relied on Gonzales v. Google, Inc.—a California district court decision that arose out of the ACLU’s constitutional challenge to the Child Online Protection Act. Moreover, despite the obvious differences from the Amherst case in subject matter, requesting party (the federal government), and scope of request (initially, a list of all URLs on the Google search engine), Gonzales nonetheless required Google to turn over some information (a sample of URLs from its search index). Judge Robart, by contrast, admitted that the accused student’s subpoena could be narrowed, specifically with regard to the documents he was requesting, but disagreed with the Gonzales precedent on the wisdom of narrowing. Yet Gonzales was the only case in his opinion that received multiple citations.

A.S.’s motion to quash was filed by John Clune, a high-profile accusers’ rights attorney. (Among other cases, he represented Erica Kinsman in the Jameis Winston case.) His brief consisted of unsubstantiated claims that the sole purpose of the subpoena was to “harass” A.S. and suggestions that Max Stern, the accused student’s lawyer, somehow (for reasons Clune never got around to explaining) behaved improperly when he talked about the case on TV. Most outrageously, the brief wildly misinterprets the role that A.S.’s sexual history played in the accused student’s filing. According to Clune, this information was included “to portray her as someone who is promiscuous and thus more likely to have consented.” The lawsuit makes no such claim, nor anything resembling it. It included this information, since the texts showed that A.S. has misled both Amherst’s investigator and Amherst’s disciplinary panel about who she invited to her room after the incident with the accused student, when she extended the invitation, and for what purpose she extended the invitation.

That Clune came to A.S.’s side to prevent more information about her troubling behavior to come to light gave some sense of how damaging the accusers’ rights movement sees this case. That Robart credited this misrepresentation of the record is disappointing.

Ironically, whatever minor assistance the ruling might have to frustrating the Amherst student’s quest for justice, the victory might be a Pyrrhic one for the accusers’ rights movement as a whole. Judge Robart sent a message that the only way an accused student can obtain relevant evidence involving his accuser is—as a handful of accused students have done—to sue his accuser as well as the college. Expect more accusers to be added to future lawsuits as a result.