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Some random legal thoughts on the JJ trial

GrizJD

Active member
I am a lawyer, but I do not work in nor do I have expertise in NCAA/ Title IX issues. But, this statement in the Missoulian made me stop in my tracks:

"As the article states, colleges are required to use a preponderance of evidence policy in these cases, a belief that guilt is more likely than not, and a much lower standard of due process than defendants have in criminal court."

The presumption of innocence and the "beyond a reasonable doubt" standard in a criminal case is a very important right to all of us. I have no opinion about what happened that night- I wasn't there. What I do know is that a young man, with an otherwise promising future who may or may not have made a horrible mistake, was facing the possibility of spending 20+ years in prison. Before we as a society make that decision we have to be DAMN sure (beyond a reasonable doubt) it is the right decision. Given the facts presented at trial, the decision reached by the jury was the right one.

However, a college, under Title IX, has to approach an investigation of what is a criminal offense with a preponderance of the evidence burden? The way I explain the difference to my clients is that, with a preponderance burden, 51% of the evidence has to support a verdict. With a "beyond a reasonable doubt" its 99%. That's a bit simplistic, but I think encompasses the fundamental distinction.

I can understand that, with prison we are depriving someone of liberty (hence the super high standard of proof) and with a Title IX we are (arguably) not. However, taking formal action to suspend or expel someone from the college has some really long term life ramifications- particularly where the reason is criminally based. I would have to think that there should be a burden on the college that is higher than what really is nothing more statistically significant than a coin flip? For example, what if the University had decided to expel somone for sexual assault based on a preponderance of the evidence, but the County had decided not to prosecute because it did not believe that it had enough evidence to make its case beyond a reasonable doubt. While the person avoids the risk of incarceration, what are the odds that they ever are accepted to another institution of higher learning with that on their academic record?
 
Its for the same reason a day care doesn't keep a worker around who is accused of possessing kiddie porn or child molestation. There is an expectation of a safe environment.What odds are acceptable?

Private business won't keep a questionable employee around either. Would you use a bookeeper who's honestu had been questioned?
 
GrizJD said:
For example, what if the University had decided to expel somone for sexual assault based on a preponderance of the evidence, but the County had decided not to prosecute because it did not believe that it had enough evidence to make its case beyond a reasonable doubt. While the person avoids the risk of incarceration, what are the odds that they ever are accepted to another institution of higher learning with that on their academic record?

Is it a stretch to say that in hindsight, the County did JJ a favor to prosecute him? If no charges were brought, I don't think JJ would still be at the UM. On the other hand, with the Federal Judge's comments about the "kangaroo court", I wonder if UM would be tied up in litigation to get Johnson back?

Oh and tnt, you are an idiot.
 
tnt said:
Its for the same reason a day care doesn't keep a worker around who is accused of possessing kiddie porn or child molestation. There is an expectation of a safe environment.What odds are acceptable?

Private business won't keep a questionable employee around either. Would you use a bookeeper who's honestu had been questioned?

Actually, that is not entirely accurate- at least not in Montana. If an employer fires an employee based upon the allegation of something like that and, later that employee is able to establish- by just a preponderance of the evidence- that is not the case, then the employer is liable for wrongful discharge. In other words, the jury gets to second guess the decision of the employer and the prudent employer has to be fairly sure that the allegations are correct. Even if the employer had a good faith belief that the allegations are accurate, but they turn out to be wrong, the termination is wrongful.
 
GrizJD said:
tnt said:
Its for the same reason a day care doesn't keep a worker around who is accused of possessing kiddie porn or child molestation. There is an expectation of a safe environment.What odds are acceptable?

Private business won't keep a questionable employee around either. Would you use a bookeeper who's honestu had been questioned?

Actually, that is not entirely accurate- at least not in Montana. If an employer fires an employee based upon the allegation of something like that and, later that employee is able to establish- by just a preponderance of the evidence- that is not the case, then the employer is liable for wrongful discharge. In other words, the jury gets to second guess the decision of the employer and the prudent employer has to be fairly sure that the allegations are correct. Even if the employer had a good faith belief that the allegations are accurate, but they turn out to be wrong, the termination is wrongful.
And this is why most businesses use paid administrative leave (or something like that) to shield the business from further potential liability in case the employee is found to be guilty.
 
go4two said:
Oh and tnt, you are an idiot.

TNT is right, actually. We don't require proof beyond a reasonable doubt in any context besides a criminal one. Even if a person is being sued for civil wrongful death, the plaintiff's burden of proof is preponderance of the evidence.

What the university has is an administrative proceeding. There are no criminal penalties that go along with it and the safety of other students is (and should be) a consideration. It's a decision they have to make in the interim while the matter is being investigated, so they don't have the benefit of a year's worth of discovery like they do in a five day trial. I understand OP's concern, but given that it's apples and oranges compared with a criminal trial, it makes sense that the burden of proof would be preponderance of the evidence.
 
clarkbarniner said:
go4two said:
Oh and tnt, you are an idiot.

TNT is right, actually. We don't require proof beyond a reasonable doubt in any context besides a criminal one. Even if a person is being sued for civil wrongful death, the plaintiff's burden of proof is preponderance of the evidence.

What the university has is an administrative proceeding. There are no criminal penalties that go along with it and the safety of other students is (and should be) a consideration. It's a decision they have to make in the interim while the matter is being investigated, so they don't have the benefit of a year's worth of discovery like they do in a five day trial. I understand OP's concern, but given that it's apples and oranges compared with a criminal trial, it makes sense that the burden of proof would be preponderance of the evidence.

Okay, is that why the Federal Judge basically stated JJ rights were violated? I don't remember that exact quote, but he Judge was appalled by the UM court.
 
GrizJD said:
tnt said:
Its for the same reason a day care doesn't keep a worker around who is accused of possessing kiddie porn or child molestation. There is an expectation of a safe environment.What odds are acceptable?

Private business won't keep a questionable employee around either. Would you use a bookeeper who's honestu had been questioned?

Actually, that is not entirely accurate- at least not in Montana. If an employer fires an employee based upon the allegation of something like that and, later that employee is able to establish- by just a preponderance of the evidence- that is not the case, then the employer is liable for wrongful discharge. In other words, the jury gets to second guess the decision of the employer and the prudent employer has to be fairly sure that the allegations are correct. Even if the employer had a good faith belief that the allegations are accurate, but they turn out to be wrong, the termination is wrongful.


I agree, but I doubt an employer would in this day and age do that including the day care. There is a process for both (including temporary suspension) In the case of Title IX that process is defined (as it should be in an employee manual) The sad thing is common sense no longer prevails and we end up with xero tolerance policies that do no one any good. Or we miss the intent of the "law" and end up with "investigations"

I wish there were a perfect answer. In a strange sort of way Couture may have had it. Many students simply left at the end of a semester. (Of course if there were a problem it became someone elses. sorta like the Catholic Church)
 
go4two said:
clarkbarniner said:
go4two said:
Oh and tnt, you are an idiot.

TNT is right, actually. We don't require proof beyond a reasonable doubt in any context besides a criminal one. Even if a person is being sued for civil wrongful death, the plaintiff's burden of proof is preponderance of the evidence.

What the university has is an administrative proceeding. There are no criminal penalties that go along with it and the safety of other students is (and should be) a consideration. It's a decision they have to make in the interim while the matter is being investigated, so they don't have the benefit of a year's worth of discovery like they do in a five day trial. I understand OP's concern, but given that it's apples and oranges compared with a criminal trial, it makes sense that the burden of proof would be preponderance of the evidence.

Okay, is that why the Federal Judge basically stated JJ rights were violated? I don't remember that exact quote, but he Judge was appalled by the UM court.

Have to plead ignorance on that part. I don't live in Montana anymore, so if a federal judge made a comment on his situation then it slipped past my radar. That sounds like an odd thing for a sitting federal judge to do though...
 
If I remember correctly, preponderance of evidence was not the issue that was questioned, but rather the conduct of the "court" in that they did not allow JJ to defend himself at all. That was the fairness issue that "offended the court" as was stated by the Judge in a real court of law. Even with the preponderance of evidence standard, the accused still should have the right to defend themselves.
 
The politics of the situation do not allow for a defendant to defend himself. Once an accusation is made, that is all that is needed in these courts. Look at the Duke rape case as another example, where 80 of the faculty signed a letter declaring the accused to be guilty.
Universities have become so inward looking they are unable to recognize reality anymore.
 
PDXGrizzly said:
If I remember correctly, preponderance of evidence was not the issue that was questioned, but rather the conduct of the "court" in that they did not allow JJ to defend himself at all. That was the fairness issue that "offended the court" as was stated by the Judge in a real court of law. Even with the preponderance of evidence standard, the accused still should have the right to defend themselves.

You are right PDX. Thanks.

This is what the Federal Judge had to say about it:

"From a normative perspective, the process applied to Plaintiff Doe and the behavior of university officials in investigating and prosecuting this matter offends the court’s sense of fundamental fairness and appears to fall short of the minimal moral obligation of any tribunal to respect the rights and dignity of the accused"
 
Some information and clarifications.

The Dear Colleague letter from DOE, from the spring of 2011, doesn't absolutely mandate lowering the standard. It threatens to cut off federal funding if the standard isn't lowered to preponderance. There's nothing in Title IX about the standard. Some people believe this "mandate" may not be upheld in a court case.

The Dear Colleague letter addresses only lowering the standard for students, not for faculty or employees of universities. A curious distinction.

The University of Montana didn't even officially propose lowering the standard, until the publication of the revised policy at the end of March 2012--almost 2 months after Johnson incident and about 7 weeks after the university proceedings were initiated. The federal judge, in his court opinion in May 2012, presumably was including this factor in coming to his conclusions.

There have been rumors, and posts in this forum, saying that a retired federal judge was hired by Paoli to look at the situation--and that he concluded that the university's investigation and proceeding was flawed and unconstitutionally and would subject the university to significant potential liability.

Many, but not all, universities have lowered the standard to preponderance. This Stanford op-ed piece provides a view that Stanford should not lower the standard--and explains why.

http://www.stanforddaily.com/2012/11/02/stanford-should-think-twice-before-lowering-evidentiary-standard/" onclick="window.open(this.href);return false;
 
Washgrizfan1 said:
Some information and clarifications.

The Dear Colleague letter from DOE, from the spring of 2011, doesn't absolutely mandate lowering the standard. It threatens to cut off federal funding if the standard isn't lowered to preponderance. There's nothing in Title IX about the standard. Some people believe this "mandate" may not be upheld in a court case.

The Dear Colleague letter addresses only lowering the standard for students, not for faculty or employees of universities. A curious distinction.

The University of Montana didn't even officially propose lowering the standard, until the publication of the revised policy at the end of March 2012--almost 2 months after Johnson incident and about 7 weeks after the university proceedings were initiated. The federal judge, in his court opinion in May 2012, presumably was including this factor in coming to his conclusions.

There have been rumors, and posts in this forum, saying that a retired federal judge was hired by Paoli to look at the situation--and that he concluded that the university's investigation and proceeding was flawed and unconstitutionally and would subject the university to significant potential liability.

Many, but not all, universities have lowered the standard to preponderance. This Stanford op-ed piece provides a view that Stanford should not lower the standard--and explains why.

http://www.stanforddaily.com/2012/11/02/stanford-should-think-twice-before-lowering-evidentiary-standard/" onclick="window.open(this.href);return false;

Thanks for providing that information.

Most people aren't aware that this has been happening, that the US Department of Justice has been pushing for a lowering of standards of proof on college campuses. One of the lone voices who has been warning about this is KC Johnson, who is, ironically, both a college professor and an Obama supporter. Nonetheless, he has been a major critic of the notion of lowering the evidentiary standard.

Johnson got involved in this because he began following the Duke lacrosse players scandal, and he started to realize that something didn't add up. Unlike members of the media, who simply regurgitated what they were fed by the police and prosecutors, Johnson began to investigate and pick apart the evidence. Perhaps more than anyone, he was responsible for determining that the lacrosse players weren't guilty of anything, and that the alleged "victim" had made up the story while the prosecutor had run with it in order to advance his own political goals. Meanwhile, the media and Duke officials piled on to advance their own political goals.

Johnson picked apart the lies in a blog he started called http://www.durhamwonderland.blogspot.com/....He" onclick="window.open(this.href);return false; also wrote a best-selling book called Until Proven Innocent. It is a fascinating read.

After championing the rights of the lacrosse players, he has since moved on to the rights of students in general who have been unjustly accused of sex crimes. He writes about these issues at another blog called http://www.mindingthecampus.com" onclick="window.open(this.href);return false;
 
About the time I was going to college there was a song by the John Mayall Blues Band called "The Laws Must Change" which was perceived as supreme philosophy and wisdom to the hemp and chemical addled brains of the day. Just about any self-respecting hippie who amounted to anything freely quoted the phrase ad nauseum.

I have never seen a case of people's lived so senselessly devastated by sheer mob hysteria as it has happened in this case. If there ever was a case of corrupt big brother needing to be overthrown, as the call was back then, it is now and for absolutely crazy cricumstances like this.
 
Wow. After reading a good post from Grizjd and the subsequent reply from silly tnt I am damn glad it is over for Jordy Johnson. However it will never be over for him because the dim wit girl that requires substantial mental therapy along with some of our leaders brought this to trial.

Wow and this in America.
 
Sure, the preponderance of evidence is the new title IX standard, but wasn't there a question about the timing of UM adoption of that standard? I think the school was still using a standard more in line with the courts at the time this matter came up. UM then tried to apply the new title IX standard after the fact, I think.
Wouldn't an acquittal after an 11-day trial also affect the preponderance of evidence? I would think the outcome of the trial would actually be evidence for the school to consider, since no school is going to put the time and resources into a conduct hearing that the defense and prosecution invest in a court proceeding.
If you go back and look at the doccuments released by the federal judge, the school's investigation was nowhere near as thorough as the ones presented to the District Court.
 
The male student wasn’t given sufficient notice prior to his campus court hearing, the lawsuit contended, and UM amended its student conduct code midway through the proceedings, lessening the burden of proof by which to find fault.

Ya, old news. They changed the rules after the fact then applied them. No one cared then and no one cares now.
 
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