Barry Bonds, Ramblin’ Man

The federal appeals court in San Francisco recently reversed baseball player Barry Bonds’s conviction for obstruction of justice.

Grand jury slugfest.

Grand jury slugfest.

The criminal charge and conviction arose out of testimony that Bonds gave to a grand jury investigating the illegal provision and use of steroids in major league baseball.  As the Ninth Circuit Court of Appeals summarized it:

During a grand jury proceeding, defendant gave a rambling, nonresponsive answer to a simple question.  Because there is insufficient evidence that Statement C was material, defendant’s conviction for obstruction of justice in violation of 18 U.S.C. 1503 is not supported by the record. Whatever section 1503’s scope may be in other circumstances, defendant’s conviction here must be reversed.

Why is this decision relevant to corporations, their employees and their lawyers?

Interview

In interviews by government agents, in grand jury testimony led by prosecutors or in testimony at trial, a witness gets a lot of bad questions and gives a lot of bad answers. “Bad” answers are not necessarily untruthful. They may be vague; or not responsive to the question; or simply an observation made into the air in order to fill the silence.

Even well-prepared witnesses fall victim to this syndrome. Invariably, they fail to (a) listen to the question; (b) answer the question; and (c) stop. If it’s incomprehensible question, they fail to ask for a new question.  If it’s a question they don’t like, they answer some other, unasked question.

This problem is particularly acute with business people. In general, business people are compensated for having answers to questions and solutions to problems. To respond “I just don’t know” or “I don’t get your question” is not well received in commerce. Business people are trying to do a deal and “get to yes.”  “Yes” is not the place that agents, prosecutors and regulators seek. (At least, not that kind of “yes.”)

Sharp haircuts, dull questions.

Sharp haircuts, dull questions.

We have discussed here and here  and here the do’s and don’t’s of interactions with government agents.  In particular, do not fall prey to the Efrem Zimbalist, Jr. syndrome.

That lesson is worth repeating:

“Government Agents,” a Lightfoot140 by Jack Sharman. from LFW on Vimeo.


The Old College Try, and The New College Tribunal

Or you'll get a preponderance-of-the-evidence disciplinary hearing.

Or you’ll get a preponderance-of-the-evidence disciplinary hearing.

In disciplinary proceedings involving claims of sexual assault, universities continue to find themselves in an intolerable situation, caught in a lawyer-triangle of the Department of Education’s Office of Civil Rights, student-complainants and the student-defendants.

In part, at least, as a result of OCR’s “Dear Colleague” letter to colleges and universities about Title IX and disciplinary proceedings, there has been an upsurge in reported instances of sexual assault on campus.

At the same time, there has been a sharp increase in lawsuits brought by student-respondents (that is, the male students who are accused), as this Wall Street Journal article details:  In Campus Rape Tribunals, Some Men See Injustice.

The scenario set out in the Journal article has become common, and one troubling from a due-process standpoint:

Last spring, Duke University expelled Lewis McLeod, a senior, for allegedly sexually assaulting a freshman woman in his room after meeting at a bar.

The woman had told Durham police Mr. McLeod had sex with her when she hadn’t wanted to. He said it was consensual. Police investigated but didn’t charge him.

A Duke University disciplinary panel didn’t find he gave her alcohol or used force. But the panel concluded it was “more likely than not” the woman didn’t agree to sex and was too intoxicated to consent. Regarding a degree, Duke lawyers later said: “Mr. McLeod is not entitled to that honor.”

Two weeks before he was to graduate, he became the first student Duke expelled for sexual misconduct under a new university policy.

Mr. McLeod, 24 years old, is suing Duke for his diploma, arguing the university unjustly made him an example to show a get-tough approach. “I believe that I’m wrongfully accused,” he says. “I believe that it was an unfair process and I believe I had something I earned taken away from me.”

His case is part of a broad and rapid change in how U.S. colleges and universities deal with sexual-assault allegations. Campuses have rewritten policies to lower the burden of proof for finding a student culpable of assault, increasing penalties—sometimes recommending expulsion. In the process, schools find themselves in legal minefields as they try to balance the rights of accuser and accused.

We have written about this issue before: Title IX, University Discipline, Sexual Assault and Parallel Proceedings.

Prelude to a parallel proceeding.

Prelude to a parallel proceeding.

Here is a slightly longer piece: Dear Colleagues All: University Discipline, Sexual Assault and The Department of Education.  Last year, we pointed out that:

Not surprisingly, most universities have proven themselves more adept at dealing with “academic” infractions then with “conduct” issues.  With the advent of coeducation and then a more culturally diverse (and potentially more fractious) student, faculty and staff composition, the proficiency gap between academic-related discipline and conduct-related discipline, in many instances, grew more pronounced.

Back in 2011, the federal Department of Education’s Office of Civil Rights issued a “Dear Colleague” letter on the subject of campus sexual assault and how, under Title IX, OCR expects colleges and universities to handle claims of sexual assault. More recently, a White House summit on campus sexual assault; a number of high-profile lawsuits and OCR investigations; and new congressional legislative interest have all conspired to mean that colleges and universities ignore the “Dear Colleague” situation to their peril.

Given the infamous “rape” case against Duke lacrosse players, one would think that Duke would take a more thoughtful approach to these matters, but things seem otherwise.  If one has any doubts about the university’s conduct in that matter, watch the 60 Minutes piece about Mike Pressler, the Duke lacrosse coach whom the university forced to resign.