Tuesday, September 4, 2012
When I was at the University of Virginia, I served as a judge on the First-Year Judiciary Committee and later as a student attorney for the University Judiciary Committee. During my time on those committees, I saw students found "not guilty" in criminal courts found "guilty" by the judiciary committees. And, during my time on those committees, I saw students found "guilty" by criminal courts found "not guilty" by the judiciary committees. (In fact, I secured a "not guilty" verdict in one of these cases). When I look back on my experience, I realize that the whole student justice thing is kind of crazy. Student attorneys and student judges decide the fate of other students while using a lower burden of proof and nothing really resembling the rules of evidence. Does such student justice constitute due process, especially when it results in the dismissal of a student? And what about when that student is found "not guilty" by the criminal justice system? Or, worse yet, what about when that student is not even indicted by a grand jury? This brings us to the case of Dezmine Wells.
Wells is a college basketball player who used to play for the Xavier Musketeers. Until recently, he was best known for his role in the brawl with cross-town rival Cincinnati on the hardwood. But then, he was expelled from school for "a serious violation of the Code of Student Conduct." That violation ostensibly involved allegations of sexual assault because those were the allegations that an Ohio grand jury later heard.
Ultimately, however, that grand jury did not indict Wells, despite grand juries indicting suspects over 99% of the time. Indeed, Tom Wolfe in "The Bonfire of the Vanities" famously quoted Judge Sol Wachtler as saying that "a grand jury would 'indict a ham sandwich,' if that's what you wanted."
So, of course, it is easy to see why Hamilton County prosecutor Joe Deters, who handled Wells' case, said
"There is something seriously flawed with a procedure where a young man and his accuser appear before a group of people, which I would suggest probably isn’t very well trained in assessing these types of cases, and they sit there and tell their stories. No lawyers, nothing. There’s just something wrong with that...."
Then, there was Xavier's response:
"Federal Law (Title IX) and Federal Regulations and Guidances prohibit Universities from ceding student conduct matters to the criminal justice system. The Federal Law requires schools to act quickly and all schools, by law, must use the 'preponderance of evidence' standard, whereas the criminal justice system uses the 'probable cause' standard to indict, and the 'beyond a reasonable doubt' standard to convict."
"The process used by the Xavier University Conduct Board is the standard used in American universities. The XU Conduct Board heard evidence that may or may not have been heard by the Grand Jury. After the Conduct Board reached its decision, the matter was considered and upheld by an appeal board of members of the student body, faculty and staff and is final."
But does Xavier's response make sense? True, to convict a jury must find guilt beyond a reasonable doubt, but to indict, a grand jury merely must find probable cause. See, e.g., Pierce v. Woyma, 2012 WL 3758631 (Ohio App. Dist. 2012). And while the rules of evidence limit the admission of evidence at trial, the rules of evidence don't apply to grand jury proceedings. See, e.g., State v. Mackey, 2005 WL 1415419 (Ohio App. 6 Dist. 2005). So, what evidence would the student disciplinary committee have heard that the grand jury did not (According to Deters, the answer is "none").
Did Wells get due process? Does any student before any student disciplinary committee get due process? I don't know, but I do know that Xavier's Student Handbook states that
"A student who is the subject of a criminal investigation or case arising out of the same or a related set of facts to a pending student conduct matter may be given the option to postpone the student conduct process pending the final outcome of the pending criminal investigation and/or charges. The University’s decision to offer this alternative shall be made only at the initiative of and at the sole discretion of the Interim Dean of Students, or designee. In exchange, the student is required to withdraw immediately as a student from Xavier and agrees not to appear on- campus for any reason without written documentation from the Interim Dean of Students, and must be accompanied by an official escort. At the culmination of the criminal proceedings, the student may petition the University to be reinstated as a student. However, the University reserves the right to deny reinstatement for any reason, even if the student is fully exonerated or the charges are dismissed. If the petition is granted, the University may pursue the postponed student disciplinary process, even if the student was fully exonerated or the criminal charges were dismissed. In most cases, the petition will only be accepted if the student has been fully exonerated from all criminal charges or the charges were dismissed."
I wonder why this wasn't done in Wells' case. What I do know is that Wells transferred to Maryland today and will seek a waiver that will allow him to play this season. Such a waiver would be unprecedented and allow Wells to bypass the general rule that dismissed students have to sit out a year before playing for a new school. Will the NCAA grant the waiver, and, of so, what does it say about student disciplinary proceedings?