Some random legal thoughts on the JJ trial

[GrizJD]

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.

Not necessarily, for the same distinction that "some" are making that the jury did not find JJ innocent, they found him "not guilty." In other words, there is not enough evidence to meet the criminal standard, but there could be to meet the civil preponderence standard. This is precisely why OJ Simpson was sued civilly and found liable after he was acquitted criminally. BTW, I do agree with RBuley's logical analysis that non-guilty = innocent based upon the consitutional presumption, but if it helps some to accept the verdict by making the innocent/ not guilty distinction, then that's okay.

I guess where this also raises my eyebrows is that this Title IX edict would only arise in the context of sexual assault- so, we are narrowly identifying a specific crime and applying a lower standard to it in the college arena. Theoretically then, a student accused of murder (that has no Title IX implications) would have the benefit of the higher burden of proof than say a student accused of sexual assault.

 

[CDAGRIZ]

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?

State actors in bold?

 

[grizfromhel]

This thread feeds in with something that I have been thinking about since the conclusion of the Johnson trial, and that is this: nowhere on the American landscape are basic civil rights and liberties more in jeopardy than on the campus of major universities. Political correctness and favored/disfavored interest groups determine political rights and even criminal prosecutions.

Remember the Duke lacrosse case which bears many similarities to the Johnson case: guilty until proven innocent, a total subversion of the ideals of American justice. And to move it to a political sphere: could you imagine what would happen if some avatar of the political right were invited to speak at the campus of any major University in this country?? Let's say a Shawn Hannity or a Rush Limbaugh were invited to speak at Missoula----- they would be blocked from entering the building and if they somehow made it to a microphone, they would be shouted and hooted down and probably physically accosted. And more importantly, who would have the temerity to step up and defend the right of this person to be heard? From anything I have seen of Royce Engstrom, it certainly wouldn't be him.

We are in a shameful period of American history where our ideals are being routinely shattered by the institutions that should cherish them the most.

 

[CDAGRIZ]

Let's say a Shawn Hannity or a Rush Limbaugh were invited to speak at Missoula----- they would be blocked from entering the building and if they somehow made it to a microphone, they would be shouted and hooted down and probably physically accosted. And more importantly, who would have the temerity to step up and defend the right of this person to be heard? From anything I have seen of Royce Engstrom, it certainly wouldn't be him.

Maybe the D.A.? Oh, that's right, that only happens in the "libbed out" California that so many Montanans despise.

http://www.ocregister.com/articles/speech-318635-students-defense.html

 

[br fan]

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.

UM's being investigated by the DOJ DOE and NCAA. I doubt we'll see any of those organizations say anything about it, but one of the most blatant violations by UM appears to be how it conducted the Johnson campus court proceeding.

 

[tnt]

This thread feeds in with something that I have been thinking about since the conclusion of the Johnson trial, and that is this: nowhere on the American landscape are basic civil rights and liberties more in jeopardy than on the campus of major universities. Political correctness and favored/disfavored interest groups determine political rights and even criminal prosecutions.

Remember the Duke lacrosse case which bears many similarities to the Johnson case: guilty until proven innocent, a total subversion of the ideals of American justice. And to move it to a political sphere: could you imagine what would happen if some avatar of the political right were invited to speak at the campus of any major University in this country?? Let's say a Shawn Hannity or a Rush Limbaugh were invited to speak at Missoula----- they would be blocked from entering the building and if they somehow made it to a microphone, they would be shouted and hooted down and probably physically accosted. And more importantly, who would have the temerity to step up and defend the right of this person to be heard? From anything I have seen of Royce Engstrom, it certainly wouldn't be him.

We are in a shameful period of American history where our ideals are being routinely shattered by the institutions that should cherish them the most.

Thats not entirely true. Its everywhere. Slowly but surely every aspect of our lives is being assumed by administrative courts/laws/judges. No easy appeal and no easy recourse. Taxes, social security, OSHA and EPA to name just a few.

 

[cody45051]

This thread feeds in with something that I have been thinking about since the conclusion of the Johnson trial, and that is this: nowhere on the American landscape are basic civil rights and liberties more in jeopardy than on the campus of major universities. Political correctness and favored/disfavored interest groups determine political rights and even criminal prosecutions.

Remember the Duke lacrosse case which bears many similarities to the Johnson case: guilty until proven innocent, a total subversion of the ideals of American justice. And to move it to a political sphere: could you imagine what would happen if some avatar of the political right were invited to speak at the campus of any major University in this country?? Let's say a Shawn Hannity or a Rush Limbaugh were invited to speak at Missoula----- they would be blocked from entering the building and if they somehow made it to a microphone, they would be shouted and hooted down and probably physically accosted. And more importantly, who would have the temerity to step up and defend the right of this person to be heard? From anything I have seen of Royce Engstrom, it certainly wouldn't be him.

We are in a shameful period of American history where our ideals are being routinely shattered by the institutions that should cherish them the most.

Thats not entirely true. Its everywhere. Slowly but surely every aspect of our lives is being assumed by administrative courts/laws/judges. No easy appeal and no easy recourse. Taxes, social security, OSHA and EPA to name just a few.

[youtube]http://www.youtube.com/watch?v=DJ5r3oNFVeE[/youtube]

 

[Grizlaw]

Thats not entirely true. Its everywhere. Slowly but surely every aspect of our lives is being assumed by administrative courts/laws/judges. No easy appeal and no easy recourse. Taxes, social security, OSHA and EPA to name just a few.

By "taxes," do you mean federal taxes?

If so, I disagree.

 

[JBS]

Thats not entirely true. Its everywhere. Slowly but surely every aspect of our lives is being assumed by administrative courts/laws/judges. No easy appeal and no easy recourse. Taxes, social security, OSHA and EPA to name just a few.

By "taxes," do you mean federal taxes?

If so, I disagree.

Grizlaw, can you explain what you mean? I hate to admit it, but the quote you used from TNT I kind of agree with, unless I'm just misunderstanding.

 

[Grizlaw]

Grizlaw, can you explain what you mean? I hate to admit it, but the quote you used from TNT I kind of agree with, unless I'm just misunderstanding.

Of course.

TNT's position is that, in many areas of the law, "real" legal proceedings are being replaced by administrative legal processes, and he listed "taxes" as an example. If he means "federal" taxes, then I assume he is referring to the U.S. Tax Court; however, I do not think his characterization of the U.S. Tax Court as an "administrative court" is accurate. In a U.S. Tax Court case, the same Federal Rules of Evidence apply as would apply in any Federal court, and the taxpayer has the same rights to appeal as he would have if his case was heard in a Federal district court (i.e., the Tax Court judge's decision is appealable to the Federal Circuit Court of the taxpayer's residence). Thus, his complaints of "no easy appeal and no easy recourse" seem misplaced.

If I'm misunderstanding his position and he'd care to clarify what he meant by his post, I'd be happy to listen, of course.

 

[tnt]

Key word is easily. There are several levels of administrative "courts" and hearings before tax court or federal appeals court. There isn't much protection till then. College students can appeal court too.

 

[JBS]

Grizlaw, can you explain what you mean? I hate to admit it, but the quote you used from TNT I kind of agree with, unless I'm just misunderstanding.

Of course.

TNT's position is that, in many areas of the law, "real" legal proceedings are being replaced by administrative legal processes, and he listed "taxes" as an example. If he means "federal" taxes, then I assume he is referring to the U.S. Tax Court; however, I do not think his characterization of the U.S. Tax Court as an "administrative court" is accurate. In a U.S. Tax Court case, the same Federal Rules of Evidence apply as would apply in any Federal court, and the taxpayer has the same rights to appeal as he would have if his case was heard in a Federal district court (i.e., the Tax Court judge's decision is appealable to the Federal Circuit Court of the taxpayer's residence). Thus, his complaints of "no easy appeal and no easy recourse" seem misplaced.

If I'm misunderstanding his position and he'd care to clarify what he meant by his post, I'd be happy to listen, of course.

Okay. I think I understand after reading it again about the admininstrative court //etc. I thought he was saying administrative court period. Laws period. Judges period, and saying that all three are responsible for the people having no recourse, not all three being beholden to the administrative court. I am confusing myself. It was the federal taxes thing that had me confused, because we really don't have any recourse, our only say is who we vote for in congress and for president, which really muddies the waters this last election. I guess what I'm saying is that the people really don't have much say in anything other than who they vote for, and sometimes ballot initiatives which the Feds usually overrule anyway. I don't think the founders imagined that the courts, including the Supreme court, would have the power they have now. In some strange way I thought that was what TNT meant. Anyway, I understand and won't pontificate on this nonsense again or it will get moved off of the main board.

 

[CDAGRIZ]

Key word is easily. There are several levels of administrative "courts" and hearings before tax court or federal appeals court. There isn't much protection till then. College students can appeal court too.

Please name two (or more) "levels of administrative 'courts'" before federal appeals court.
Certainly, you cannot mean that if I want to appeal a decision from the United States Court for the District of Montana, I have to go through several administrative hearings before I can get the 9th Cir. to deny my petition . . .

 

[Grizlaw]

Key word is easily. There are several levels of administrative "courts" and hearings before tax court or federal appeals court. There isn't much protection till then. College students can appeal court too.

You're referring to the IRS Office of Appeals, I assume.

That is an administrative body that gives taxpayers the opportunity to resolve an adverse audit with the IRS without going to court. It's not mandatory, though; if a taxpayer doesn't want to go through that process, he can simply wait for the IRS to issue a 90-day-letter, and then file a petition with the Tax Court.

I do agree that it's not an "easy" process, but I don't think the administrative options make it any more complicated. Going to a U.S. District Court to litigate a tax case against the government isn't exactly "easy," either.

 

[mcg]

Reportedly the accuser said "I do you any time" at the Foresters Ball the night before the incident.

My question for the lawyers among us is why wasn't that statement allowed as evidence? It would seem that in a trial ultimately about consent, that statement might be relevant.

Thanks.

 

[PlayerRep]

Reportedly the accuser said "I do you any time" at the Foresters Ball the night before the incident.

My question for the lawyers among us is why wasn't that statement allowed as evidence? It would seem that in a trial ultimately about consent, that statement might be relevant.

Thanks.

Judge didn't allow it. Motion in limine before trial. 75 discussed these types of motions in a post several some days ago. Everything that was in the motion to discuss that you may have been surprised didn't come up at trial was disallowed by the judge.

 

[grizfromhel]

Presuming the defense had witnesses that heard the statement and were prepared to testify to it, the testimony would not be hearsay, so could not be denied on that basis. Also, any statement to the defendant, which he was prepared to testify to and be subject to cross-examination, would not be hearsay.

It would seem to be recent (day before) and probative on the "state of mind" of the accuser where consent was the salient issue.

Looks like another blown assignment by the former prosecutor/current judge.

 

[fencer24]

Actually, it is classic hearsay - An out of court statement given to prove the truth of the matter asserted. But it could be used as a prior inconsistent statement: "I'd do you anytime" vs "I said no." The problem is that you have to get the witness to "own" the previous statement or deny it, in which case it is offered not to prove the truth of the matter but the credibility of the witness.

 

[grizfromhel]

Since this thread is probably mostly legal beagles, maybe someone can enlighten me on an aspect of the case that has been bothering me since I first heard it mentioned six months ago, and that is the role of the private attorney who donated his time and effort to the prosecution. I am a former prosecutor and I just have never heard of the state using donated, "pro bono" counsel in a criminal prosecution. And I have to say, it rubs me the wrong way.

With all the other resources the state has to throw at the defendant and his family (who is financially supporting his legal defense), and then the state gets donated services??? Already in the case, the Missoula County Attorney brought in the big gun from the Attorney General's Office in Helena to take an active and direct role in the prosecution, and then they pile on with a private attorney.

Would the donated services qualify as "pro bono" under State Bar Association rules??? Just curious.

Wondering what other attorneys (or non-attorneys for that matter) think of this arrangement.

 

[fencer24]

It was "pro bono" for Duerk's future run to replace Van Valkenberg.