The Rock and the Hard Place

Once again, as is the case almost every year, a rash of criminal charges and University suspensions is taking hold in college athletics. This weekend authorities arrested four Texas Tech players, including sophomore quarterback Jett Duffey based on a variety of charges after events at a local Lubbock bar. Kliff Kingsbury's reaction was an indefinite suspension for all four, and the alleged offenders were seen at practice today carrying dumbbells and weights, monitored by strength and conditioning staff, as the team practiced. Their behaviors were part of Kingsbury's internal discipline. For some fans, especially on with Twitter muscles, internal punishment isn't enough. Coaches are caught between a rock and a hard place with place discipline, and the survivable area is shrinking by the day as concerns over campus safety run headlong into issues of procedural due process. 


The #metoo movement caught fire, and perhaps justifiably so, women in and around the entertainment industry came forward in never before seen numbers to take a vocal stand against sexual aggression in the film industry. Daily new headlines broke with another mogul, actor or entertainer under the microscope due to some alleged illicit behavior. 

On college campuses, the scandals at Baylor, Michigan State, and Penn State have brought sexual offenses and criminal activities committed around athletic programs to the forefront. Administrators, not daring to seem preferential to athletes, have taken a hard line on accusations. Preferring to err on the side of caution rather than allowing the judicial process to play out. 

Jett Duffey, accused of sexual assault in the spring of 2017, sat out a University imposed suspension in spite of a grand jury in Lubbock County no-billing the felony case against him. In other words, twelve random citizens of Lubbock County sat and heard the DAs case, strengths and weaknesses and four or more voted that the District Attorney lacked the evidence sufficient to establish the commission of a crime. 


If the nine of the jurists in Lubbock felt the District Attorney had sufficient evidence, they would have "true-billed" the case, in essence giving the DA the green light to proceed. If so, then Jett Duffey would be afforded constitutional due process, including the right to force the DA to prove its case by calling witnesses, exposing those witnesses to cross-examination by an attorney either provided to Duffey or retained by him. The District Attorney would be compelled to turn over any exculpatory evidence or any evidence that could, might, or maybe show Duffey's innocence.

Texas goes a step further than the aforementioned standard, known as the Brady standard and requires police and law enforcement authorities follow the Morton Act, named for Michael Morton. The Morton Act requires the prosecution to turn over all statements and reports regardless of whether that information is material to guilt or punishment. Basically, the DA must turn over its entire case, without the defense asking for it. 

If you don't know who Michael Morton is, read his story here, and you'll understand why these measures are so critical to avoid wrongful convictions. 

We take these steps to ensure that every person charged with a crime has ample opportunity to mount an effective defense because the cornerstone of our system of justice is (allegedly) the presumption of innocence until the State meets its burden and proves guilt beyond a reasonable doubt. File that away for a moment. 

Remember the Minnesota Golden Gophers of 2016? All set to play in the Holiday Bowl when the team announced a boycott of the game unless the University reopened the sexual assault case levied against several Gopher players. The team banded together because they believed their suspended teammates weren't allowed fundamental Due Process in the Title IX investigation and ultimate disposition. In the end, the Gophers traveled to the Holiday Bowl, but head coach Tracy Claeys' who supported the Boycott lost his job. 

Interpreting Title IX is left mainly to the University in question. At Cincinnati for example, the internal policies fo the Title IX office prohibited investigators from compelling victims of sexual assault to show up at hearings, denying the accused the right to confront their accuser. That oversight, among other issues, caused the Sixth Federal Circuit to find that Cincinnati's Title IX procedures denied the accused his fundamental due process rights. Those procedures by the way became commonplace after President Obama issued a directive in a "Dear Colleague" letter recommending the accusor never meet the accused face to face. The Court emphasized the fundamental right to cross-examine the accuser. Victims rights groups were incensed by the Appellate Opinion. 

Read the John Doe vs. University of Cincinnati Decision Here

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Some Title IX offices, including Texas Tech's, adopted a "preponderance of evidence" standard in reviewing sexual assault complaints. Preponderance meaning if you put the case on a scale with one side being the determination that a defendant committed an offense and the other that the defendant did not if a scintilla of evidence tilts that scale, ever so slightly, in either direction in the decision makers mind, that tilt is a preponderance. The preponderance standard is much more easily attained that the beyond a reasonable doubt standard which again, forces the State to carry its burden. 

So what in the hell does it all mean? And why is a football site writing so many damn words? For one, I work as a defense attorney, and for another, the disparity in processes puts administrators and coaches in an awkward position. Are there circumstances where a victim might benefit from not facing an accuser who did, in fact, commit a heinous act? Absolutely. But by the same token, aren't there women who make false claims? Yes. Studies place the percentage of false allegations at between 2% and 10%, though a 2004 study put the number at 45%. 

We don't know sometimes, and that's why protections offered by the Due Process Clause and those judicial interpretations of the Clause are so critical, including the basic guarantee of a fair, unbiased tribunal. But in our rush to judgment, we, at times, will run roughshod over individual rights to get to an outcome that makes us feel that some individual form of justice was served. It's not a huge leap to say that at times, athletes, a majority of whom belong to a minority group, might be targeted not just by an unjust accuser but also by authorities. While academia tries to guarantee a safe space for learning and social development, it does not always secure a just space. 

Expelled for Sex, More Young Men Are Filing Suits to Clear Their Names (Washington Post)

And while Title IX punishments do not carry the risk of loss of Liberty, as in a criminal case, the stigma and repercussions attached to an individual wrongly accused are still damaging. In most cases, the individual is no longer allowed to attend the University and find prospects limited due to their record. 

So, while we want to ready our pitchforks and make the bastards pay, the better course, at least from my vantage point, is to allow all the protections necessary to ensure that no one is wrongly accused or sanctioned, no matter the alleged crime. Even though the wheels of Justice turn slowly, the alternative can be much worse. 

Posted on March 28, 2018 and filed under Southwest Round-Up.