“Fantastic Lies” and Corporate Criminal Prosecution

When the past is dug up in documentaries (or docudramas), events are often sensationalized.  This practice is of long pedigree: Shakespeare was not above amping up an old story when it suited his needs.  Unfortunately, few filmmakers are at Shakespeare’s level, and the sensationalism ends up being no more than that.  The viewer has no better sense of the past than he did when he began.  The only sense the viewer has is the sense that she has been had.

30-For-30On the other hand, from time to time a documentary digs up the past but cools down the facts, making them approachable in a way that would have been impossible at the time.  The participants have aged or died; passions have cooled; and political or emotional scar tissue has formed.

Such is the latter case with the recently released ESPN “30 for 30” film about the Duke lacrosse case, Fantastic Lies.

 

Produced by Marina Zenovich with only a modest amount of cooperation from the players and their families and essentially no cooperation from anyone else, the film is superb. It is commendable for reasons of both art and entertainment, but there are lessons to be drawn from Fantastic Lies to the benefit of American corporations and business people who think they understand some of their most treasured institutions, including two at the heart of the film: the criminal justice system and the elite university.
No joy.

No joy. (AP Photo/Gretchen Ertl)

In case you have been lost in Donald Trump’s hair for the last dozen years, the Duke lacrosse case involved a group of varsity lacrosse players at Duke who held a party. Two strippers were paid to provide entertainment at the party.  One of them, an African-American woman named Crystal Mangum, claimed that she had been sexually assaulted, verbally abused and threatened with racist epithets.

The case ignited a PC firestorm and witch-hunt, a hunt that would have been academic tragicomedy were it not for the local district attorney in Durham, Mike Nifong, who indicted three players. The lacrosse coach was forced to resign, the season was canceled and the national media had a feeding frenzy.

Very attentive now.

Mr. Nifong, very attentive now.

Nifong was ultimately shown to have withheld exculpatory evidence that demonstrated conclusively that Mangum had not been assaulted by any person at the party.  He was disbarred, the players exonerated and lacrosse reinstated at Duke.

Zenovich tells the story almost exclusively through the combination of the words of the (relatively few) participants and witnesses who would speak with her, plus contemporaneous footage of court appearances, lacrosse games, social media posts and state bar disciplinary proceedings.  It is a narrative presented with skill, calmness and wonder at how such hysteria happens.

I have written about the Duke lacrosse case and white-collar crime problems before: Dear Colleagues All: University Discipline, Sexual Assault and The Department of Education and Title IX, University Discipline, Sexual Assault and Parallel Proceedings and The Old College Try, and The New College Tribunal.

Those observations were largely in the context of the much larger problem wrought by the federal Department of Education’s Office of Civil Rights (or “OCR”).  The OCR interprets (or misinterprets) Title IX to force colleges and universities to hold Star Chamber-like proceedings in matters of campus sexual assault.  (Consider this March 10, 2016 letter — Lankford Letter DOE Title IX — from Senator James Lankford (R-OK), Chairman of the Subcommittee on Regulatory Affairs and Federal Management, Senate Committee on Homeland Security and Governmental Affairs).

Setting aside the significant implications for students and universities, what can we take away as business people from Fantastic Lies?  Here are five thoughts to post in the break room:

Real charges can result from actual innocence.  Do not assume, because you have not done anything wrong, that you will not be charged with and convicted of a crime. Innocent people are charged with and convicted of crimes every month (and probably every week) across the country.  Prosecutors are not clairvoyant, and they are not divine even when they act in good faith. When they act in bad faith (which is rare), or when they are negligent, incompetent or just don’t understand the business events they are looking at (which is much more common), innocent people will get charged with crimes, and juries will sometimes convict them.

Do not assume that “the truth will out.”  The Government has overwhelming discretionary power.  The proceedings of a grand jury are secret, manifested by the fact that a witness’s lawyer may not even accompany her client into the room. Agents are intimidating, and citizens think they have to speak with him.  The disclosure of “Brady” information – that is, exculpatory information — is wholly within the Government’s control. This is precisely the kind of information that Nifong, the prosecutor in the Duke lacrosse case, withheld.  (If you have doubts about whether these sorts of things happen with troubling frequency, read Criminal Law 2.0 by federal court of appeals judge Alex Kozinski.  It first appeared in the Georgetown Law Journal Annual Review of Criminal Procedure, but do not worry.  It is written in clear, plain English).

Fight back, early.  The players and parents in Fantastic Lies did not fully understand what was happening until it was too late.  Just as a parent or student cannot rely upon bland reassurances from education bureaucrats in crisis, a corporation or executive cannot put too much weight on comforting words and hinted support from agents, regulators or prosecutors.  Assume that something bad is happening and do something about it.

Shut up. When one is investigated, the impulse to share one’s innocence is almost overwhelming. Especially in a high-profile investigation, that impulse will rarely be rewarded because your words will be twisted, compressed and taken out of context.

Before electronic court filings.

Before electronic court filings.

I hope you have money. The defendant students in the Duke lacrosse case did not win simply because they were innocent. They won because their parents were able to afford a team of some of the best criminal defense lawyers in North Carolina.   For the purposes of this discussion, the difference between the Duke lacrosse players and the Scottsboro Boys is not race. The difference is cash on hand.

The Innocence Project

The Innocence Project

If you are moved by the film, as I was, you may want to look into the work of The Innocence Project, which “was founded in 1992 by Barry C. Scheck and Peter J. Neufeld at the Benjamin N. Cardozo School of Law at Yeshiva University to assist prisoners who could be proven innocent through DNA testing. To date, more than 300 people in the United States have been exonerated by DNA testing, including 20 who served time on death row.”

Here is more reaction to Fantastic Lies, from the lacrosse community and elsewhere:


The Freedom of Little Joe Cartwright: Tax Crime, Edgar Allan Poe, Noir Film and Lacrosse

Notes for the week.

Prosecuting Individuals

Federal criminal tax lawyer Jack Townsend blogs at Federal Tax Crimes.  Here is his note on Prosecuting Corporate Employees, particularly in the tax context:

I have previously blogged on Professor Brandon Garrett (UVA Law) who have carved out an academic niche on how the Government deals with corporate crime, particularly large corporate crime (the too big to jail group). See e.g., Judge Jed Rakoff Reviews Brandon Garrett’s Book on Too Big to Jail: How Prosecutors Compromise with Corporations (Federal Tax Crimes Blog 2/10/15), here. At the risk of oversimplifying his arguments, I summarize them in part relevant to this blog entry: When the Government goes after corporate misconduct, it too often focuses only on the corporation in terms of criminal sanctions and not the individuals, particularly those higher up the chain, who committed the underlying conduct. Corporations cannot go to jail; individuals can. Prosecuting and convicting individuals in addition to corporations could, he thinks, provide more front-end incentive for individuals to forego illegal conduct within the corporations. However, as fans of tax crimes know at least anecdotally, it is hard to convict higher level corporate officers for conduct that their underlings actually commit. The poster child example is the acquittal of Raoul Weil, a high-level UBS banker who “remoted” himself from the dirty work of actually servicing U.S. taxpayers seeking to evade U.S. tax. See e.g., Raoul Weil Found Not Guilty (Federal Tax Crimes 11/3/14; 11/6/14).

Mr. Townsend goes on to discuss the DOJ’s Yates Memorandum and new work by University of Virginia law professor Brandon Garrett.  Professor Garrett’s website (Federal Organizational Prosecution Agreements) is the best compendium of deferred-prosecution and non-prosecution agreements.

Michael Landon ("Little Joe Cartwright") being served with a subpoena (1968)

Michael Landon (“Little Joe Cartwright”) being served with a subpoena (1968)

Another useful Townsend post addresses a common issue — the Government’s attempt to muzzle the recipients of subpoenas:

In United States v. Gigliotti, 2015 U.S. Dist. LEXIS _____ (ED NY 12/23/15), here, Judge Dearie denied a motion to suppress evidence obtained pursuant to grand jury subpoena that unlawfully contained the following:
YOU ARE HEREBY DIRECTED NOT TO DISCLOSE THE EXISTENCE OF THIS SUBPOENA, AS IT MAY IMPEDE AN ONGOING INVESTIGATION.

Sound familiar?  Read the entire piece at Judge Criticizes Prosecutor’s Use of Language Directing Secrecy for Receipt of Grand Jury Subpoena.  We have written about the grand jury previously herehere and here.  If you are to young (or too old) to remember Bonanza on TV, here is a refresher.  Here is an episode from 1960 entitled — appropriately, for White Collar Wire readers — “Desert Justice”:

Head-on-a-platter and all that.

Head-on-a-platter and all that.

Or Not Prosecuting Individuals?

White Collar Wire should have sent a Christmas goose to Senator Elizabeth Warren (D-MA), who wants more white-collar types to get indicted: 2015 Spurred Billions in Bank Fines, But Not Enough for Warren.  In particular:

In a 10-page report titled “Rigged Justice: 2016,” the U.S. Senator’s staff cited 20 cases in which they say prosecutors showed “timidity” by not pursuing individuals for civil or criminal misdeeds. No executives at Citigroup Inc., JPMorgan Chase & Co., or Deutsche Bank AG were accused of wrongdoing in cases alleging rigged currency markets and the misleading of investors, her office wrote in the document released Friday. The investigations led to their companies paying billions of dollars in penalties.

Senator Warren will have none of the Yates Memo, thank you:

The report even dismisses a recent U.S. Justice Department announcement, known as the Yates memo, in which Deputy Attorney General Sally Quillian Yates heralded a new direction by telling prosecutors to embark on investigations by focusing on people, not companies. “Both before and after this DOJ announcement, accountability for corporate crimes has been shockingly weak,” Warren’s office wrote.

“Shocking to whom” is a good question, but it’s all good for the white-collar bar.  Here is her report.

Good Practices and Bad

A miscalculated penalty, perhaps.

A miscalculated penalty, perhaps.

From the Harvard Law School Forum on Corporate Governance and Financial Regulation and Jon Eisenberg, a partner in the Government Enforcement practice at K&L Gates LLP, here is a useful article (with cases and charts) about the SEC’s use of civil monetary penalties.  Tellingly, and sadly, the authors point out that “these decisions might not survive appellate scrutiny . . .  but very few respondents appeal their sanctions all the way to the D.C. Circuit.”

 

 

Hall monitor?

Hall monitor?

Deferred-prosecution agreements often impose corporate monitors.  Should the reports of such monitors be kept confidential?  A federal judge ordered the release of the HSBC monitor’s report, over the object of both HSBC and DOJ:

A federal judge has ordered the release of a report detailing how well HSBC Holdings Plc has complied with anti-money laundering requirements imposed by U.S. regulators when the British bank was fined $1.92 billion three years ago.

Thursday’s order by U.S. District Judge John Gleeson in Brooklyn is a defeat for HSBC and the U.S. Department of Justice, which complained the release could make it easier to launder money, including for terrorism, and discourage cooperation with law enforcement.

“This case implicates matters of great public concern and is therefore one which the public has an interest in overseeing,” Gleeson wrote, citing the public’s constitutional right of access under the First Amendment.

I cannot speak to the terrorism angle, but cooperation (and thus, monitoring) both work best when company employees have some comfort that what they say and do will be held in confidence, at least within reasonable parameters.  The public’s oversight interest is real, but surely an organization that has paid billions in fines and is living with a monitor is being “overseen” to a reasonable extent, especially when that oversight requires continued cooperation to be effective.

Read the entire article here: HSBC money laundering report must be made public.  To read our earlier posts about DPAs and monitors, go herehere, and here.

Crime Fiction

Digital content, quoth the raven.

Digital content, quoth the raven.

From the good folks at The Rap Sheet, a piece on the nominees for the 2016 Edgar Awards.  Here is the complete list from the Mystery Writers of America.

Thomas Hardy (1840-1928)

Thomas Hardy (1840-1928)

It is not a raven, but there is a bird in  Thomas Hardy’s poem “The Darkling Thrush”:

I leant upon a coppice gate
When Frost was spectre-grey,
And Winter’s dregs made desolate
The weakening eye of day.
The tangled bine-stems scored the sky
Like strings of broken lyres,
And all mankind that haunted nigh
Had sought their household fires.

The land’s sharp features seemed to be
The Century’s corpse outleant,
His crypt the cloudy canopy,
The wind his death-lament.
The ancient pulse of germ and birth
Was shrunken hard and dry,
And every spirit upon earth
Seemed fervourless as I.

At once a voice arose among
The bleak twigs overhead
In a full-hearted evensong
Of joy illimited;
An aged thrush, frail, gaunt, and small,
In blast-beruffled plume,
Had chosen thus to fling his soul
Upon the growing gloom.

So little cause for carolings
Of such ecstatic sound
Was written on terrestrial things
Afar or nigh around,
That I could think there trembled through
His happy good-night air
Some blessed Hope, whereof he knew
And I was unaware.

Crime Noir and Miles Davis

It's Miles. It's cool.

It’s Miles. It’s cool.

On the subject of crime, Apple Music must have intuited that I like noir-ish fiction and cool jazz.  It directed to me a set of Miles Davis that included “Ascenseur pour l’echafaud” (1958), a French crime film by Louis Malle released in the States as Elevator To The Scaffold (or Lift To The Scaffold in the U.K.)  Davis’s horn on the title track is as evocative as it gets, as seen here:

 

ESPN's 30-for-30

ESPN’s 30-for-30

Wishing It Were Fiction: Duke Lacrosse and Due Process

On Sunday, March 13, at 9 p.m. ET, ESPN’s acclaimed “30 for 30” film series will present Fantastic Lies, a film about the the Duke lacrosse case.  Here is an interview with the producer, Marina Zenovich.

Damage done.

Damage done.

We have written about the Duke lacrosse case before, here and here.

 

Depends on how we sell it.

Depends on how we sell it.

In opening statements and closing arguments, the genuine is good.  The cornball or the obscure, on the other hand, are bad.  The same is true of our written work.  As noted by Philip Corbett, master of the After Deadline blog in the New York Times:

[A]n overreliance on anecdotal openings — especially the classic “stranger in the lead” approach — can make our prose feel shopworn rather than vivid. This is particularly true when readers encounter unfamiliar names at the top of two or more adjacent stories, whether in print or online.

 

Read the entire piece: Here’s Someone You Never Heard of. Read On.

 


Title IX, University Discipline, Sexual Assault and Parallel Proceedings

A short — 140 seconds — note on the thickets of Title IX, sexual assault, university discipline and parallel procedures:

University Discipline, Sexual Assault and Parallel Proceedings from LFW on Vimeo.

It's the new campus thing.

It’s the new campus thing.

Here’s a longer written piece: Dear Colleagues All: University Discipline, Sexual Assault and The Department of Education

And, should anyone doubt the human costs involved in the mishandling of such investigations, one only need to recall disgraced prosecutor Mike Nifong and the Duke lacrosse case, as highlighted by Ed Bradley and 60 Minutes:


Dear Colleagues All: University Discipline, Sexual Assault and The Department of Education

It's the new campus thing.

It’s the new campus thing.

Title IX. Crime. Sexual assault. University disciplinary procedures. Civil litigation. Enormous amounts of money. The Fifth Amendment.

And that’s all before you hire a lawyer.

This is a perilous time for university disciplinary systems and those who administer them, especially with regard to claims of sexual assault.  A college or university can find itself in the midst of – indeed, at the helm of – a set of quasi-criminal parallel proceedings that can make the school liable to student complainants, student respondents and federal enforcement authorities.

How does this happen, and what are the factors to keep in mind to minimize that exposure?

Disciplinary systems and educational missions have been uncomfortable fellow travelers going back at least to Tom Brown’s Schooldays:

As the concept of in loco parentis came in and out and back into fashion, the nature of university disciplinary systems changed accordingly.

What remained unchanged, however, are the two broad areas that most collegiate disciplinary systems address:  “conduct” and “ethics” (or sometimes “honor”).  The latter involves cheating, plagiarism and the like.   The former involves infractions of nonacademic policies – drinking, destruction of property, and violations of civil or criminal law.

Not so many pranks today.

Not so many pranks today.

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.

So, my Lightfoot law partner William King (who runs our NCAA practice); summer associate Caitlin Looney; and I (the white-collar guy) prepared a memo.  (Truthfully, Caitlin wrote it.  All we did was read it and change the date):

On Wednesday, July 30, 2014, a bipartisan group of eight senators introduced legislation aimed at curbing on-campus rape. “The Campus Safety and Accountability Act” would require colleges to assign campus “Confidential Advisors” to act as a resource to victims of sexual assault. The Act would also require a uniform process for disciplinary proceedings and require colleges to coordinate investigations with law enforcement. Penalties for noncompliance could include up to 1% of their total operating budget and a $150,000 fine per violation. The Act would also include annual surveys of students, the results of which would be posted online for the benefit of parents and prospective students. The proposed Act represents the latest development in a flurry of governmental involvement in recent years on issue of sexual assault in schools.

Here is the entire paper: University Disciplinary Procedures and the Dear Colleague Letter on Sexual Assault.

The Senate solution.

The Senate solution.

The Campus Safety and Accountability Act, the bill proposed in the Senate, relies in part on a Scarlet Letter approach driven by disclosure of sexual assault (as self-reported by students, rather than administrators or law enforcement), and hefty fines for non-disclosure.  As reported by the New York Times:

Every college would be required to participate in the survey and publish results online, and the penalty for colleges that don’t report sexual assault crimes, as required by the Clery Act, would increase to $150,000 from $35,000 per violation.

The new bill proposes fines of up to 1 percent of a college’s operating budget. If Harvard were found responsible, for example, the university would be on the line for $42 million — a sizable fine, but one that would probably not hurt the university’s students. [Harvard’s trustees might differ, but that is another issue. – Ed.]

Colleges would be required to supply confidential advisers to victims and train counselors. Athletic departments would not be allowed to handle sexual assault complaints. Colleges would need to coordinate a uniform plan with local law enforcement agencies. And the bill would provide federal funding to create and distribute an inexpensive, anonymous annual survey that asks all undergraduate students about experiences with sexual violence. Parents and students would be able to see the data, which may influence their decisions when applying to college.

Whether deserved or not in any particular circumstance, college athletic departments are a particular focus, as noted here.

Awaiting the parallel proceedings.

Awaiting the parallel proceedings.

Unlike the disciplinary process for a cheating scandal, a university’s investigation, adjudication and resolution of a sexual assault case is a classic parallel-proceedings scenario.  At any moment there may be simultaneously ongoing (1) an administrative proceeding (run by the university); (2) a criminal investigation (run by external law enforcement, sometimes in concert with internal university security and sometimes not); and (3) potential civil lawsuits by either the accuser or the respondent.

Even in the “normal” scenario, parallel proceedings raise thorny issues. In the university disciplinary context, however, they raise at least two special issues, issues often troubling and sometimes disastrous.

First, there is a fourth parallel overlay – the Department of Education’s OCR – that is not present in the usual parallel proceedings situation. The threatened loss of Title IX funds is a near-nuclear scenario for many institutions. (The closest but still imperfect parallel in the business world would be a federal indictment of a company).  A Title IX investigation is unpleasant but survivable. The actual loss of Title IX funding may not be.

Second, the due process and Fifth Amendment implications for the student respondent/defendant are exacerbated in ways that are foreign to customary practice and procedure.

Why is this so?

Put yourself in the chair of a defense lawyer whose new client is a student.  A complaint has been launched in the university disciplinary system against your client, alleging rape or other serious sexual assault.  Consistent with the “Dear Colleague” letter, the university process unfolds swiftly, and your client will soon be offered an opportunity to “tell his side of the story” to a panel of university administrators and faculty.  The local police investigators have requested an interview of your client. You have received an email from a lawyer representing the alleged victim who demands that your client preserve all electronic information on his phone such as photos and texts.

Just a few questions.

Just a few questions.

At this stage, the defense lawyer may not know much, but she or he knows two things.

First, the lawyer knows that the client is not talking to anybody until counsel is quite certain of the legal landscape generally and, in particular, the client’s status in the criminal investigation.

Second, the lawyer may try a “real world” fix: for Fifth Amendment reasons, stay the civil proceedings pending resolution of the criminal investigation and potential prosecution.  Taking the “Dear Colleague” letter at face value, however, and given the prevailing sentiment in this area, a Title IX-compliant university will not be staying much of anything. Although a very short pause in the disciplinary proceedings – on the order of days – is clearly permissible for law enforcement to conduct basic investigative tasks, the kind of stays we in the external world — months and months — is unlikely.  Or, as OCR says:

Police investigations may be useful for fact-gathering; but because the standards for criminal investigations are different, police investigations or reports are not determinative of whether sexual harassment or violence violates Title IX. Conduct may constitute unlawful sexual harassment under Title IX even if the police do not have sufficient evidence of a criminal violation. In addition, a criminal investigation into allegations of sexual violence does not relieve the school of its duty under Title IX to resolve complaints promptly and equitably.

A school should notify a complainant of the right to file a criminal complaint, and should not dissuade a victim from doing so either during or after the school’s internal Title IX investigation. For instance, if a complainant wants to file a police report, the school should not tell the complainant that it is working toward a solution and instruct, or ask, the complainant to wait to file the report.

Schools should not wait for the conclusion of a criminal investigation or criminal proceeding to begin their own Title IX investigation and, if needed, must take immediate steps to protect the student in the educational setting. For example, a school should not delay conducting its own investigation or taking steps to protect the complainant because it wants to see whether the alleged perpetrator will be found guilty of a crime. Any agreement or Memorandum of Understanding (MOU) with a local police department must allow the school to meet its Title IX obligation to resolve complaints promptly and equitably. Although a school may need to delay temporarily the fact-finding portion of a Title IX investigation while the police are gathering evidence, once notified that the police department has completed its gathering of evidence (not the ultimate outcome of the investigation or the filing of any charges), the school must promptly resume and complete its fact-finding for the Title IX investigation.

Thus, the respondent/defendant is in a crucible.  Does he fight the charge in the university’s disciplinary proceeding, or decline to participate in the proceeding so as to avoid statements that the government could use, fairly or unfairly, in a criminal prosecution?

Each situation is different, but rock breaks scissors, and prison trumps college.  The respondent/defendant may sue the university on due process grounds, as a Duke student recently did with success, but that is a temporary solution:

Some students who have been expelled or suspended pursuant to a university policy on sexual assault are suing those schools, claiming their rights to a fair hearing were violated. Schools currently involved in litigation with students under these circumstances include: Vassar College, the University of Michigan, Duke University, Occidental College, Columbia University, Xavier University, Swarthmore College, and Delaware State University, among others. Most of these claims have centered on the argument that the hearing processes under new, more stringent standards are unfair. Some of the accused have claimed that the discipline system is now skewed against them because of their male gender and should likewise be considered a violation of Title IX. The likely success of these lawsuits for the accused remains undetermined, but there has been at least one instance in which a judge intervened to keep a school from expelling a student using its internal procedure.

On May 29, 2014, a judge in North Carolina put the expulsion of a Duke University student on hold. Duke determined the student, Lewis McLeod, had committed a sexual assault and should be expelled before spring finals during his senior year of college.Judge W. Osmond Smith III ruled that McLeod would likely suffer irreparable harm if expelled. His ruling blocked Duke from expelling McLeod pending a final determination on the merits.

OCR is not a party to these lawsuits, but the “Dear Colleague” letter makes its position clear, were it required to take one:

Public and state-supported schools must provide due process to the alleged perpetrator. However, schools should ensure that steps taken to accord due process rights to the alleged perpetrator do not restrict or unnecessarily delay the Title IX protections for the complainant.

Quite a burden.

Quite a burden.

With regard to due process (and evidence presented in the process), another vexing issue for universities is the question of the appropriate “burden of proof” to apply in campus sexual-assault cases.  Historically, most schools seemed to use a standard that was lower than the “beyond a reasonable doubt” requirement that criminal prosecutors must meet but something greater than the “preponderance of the evidence” standard customary in civil lawsuits.  It is unclear (at least to me) what the complete constitutional and evidentiary consequences are of making findings that are both civil and criminal using only a civil standard.

It is not unclear to OCR, however:

[I]n order for a school’s grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard (i.e., it is more likely than not that sexual harassment or violence occurred). The “clear and convincing” standard (i.e., it is highly probable or reasonably certain that the sexual harassment or violence occurred), currently used by some schools, is a higher standard of proof. Grievance procedures that use this higher standard are inconsistent with the standard of proof established for violations of the civil rights laws, and are thus not equitable under Title IX. Therefore, preponderance of the evidence is the appropriate standard for investigating allegations of sexual harassment or violence.

OCR roots this principle not in Title IX but in the caselaw developed in civil race-discrimination cases under Title VII of the Civil Rights Act of 1964.  The statutory foundations of this approach merit further thought, but it is noteworthy that while sexual assault and racial discrimination are both odious and unlawful, only the former is a crime (except for instances of federal deprivation-of-civil-rights situations).

The Crimson offense (or defense?)

The Crimson offense (or defense?)

In any event, the shift to the preponderance-of-the-evidence standard is occurring rapidly, as at Harvard:

The new policy, unveiled Wednesday, dramatically changes how cases of sexual assault are handled at Harvard. The new Office of Sexual and Gender Based Dispute Resolution will employ professional investigators and essentially remove investigative responsibility from individual disciplinary boards across schools. Based on the facts provided by the central office, those disciplinary boards will work with University Title IX Officer Mia Karvonides to issue sanctions.

The “preponderance of the evidence” standard that the office will employ is seen by many as a lower burden of proof than the “sufficiently persuaded” standard currently used by the College’s Administrative Board. The preponderance of the evidence standard, favored by the U.S. Department of Education’s Office for Civil Rights, is generally understood to require more than 50 percent certainty to determine guilt.

Absent from the new policy is an affirmative consent requirement, under which partners must affirmatively communicate their willingness to participate in sexual activity. Activists on Harvard’s campus, such as those involved with the group Our Harvard Can Do Better, and across the country have lobbied for such a clause.

(The Crimson article attaches a copy of the new Harvard policy).

Damn committee reports.

Damn committee reports.

So, what are the takeaways for university administrators and others charged with development an oversight of university disciplinary systems, especially with regard to claims of sexual assault?

OCR-ready.

OCR-ready.

Bulk up on the skill.  You cannot delegate away “Dear Colleague” responsibility; nor can you simply add it as another part of the job description in Legal or Compliance; nor can you have your “Dear Colleague” program run by someone who is not sensitive to the legal, administrative and — bluntly — political issues that swirl around this effort.

Cut down on the windowdressing.  Some companies have magnificent paper compliance programs and codes of business ethics, policies that set lofty standards which, if not undergirded by the actual work, only make the situation worse in the midst of a compliance failure or white-collar criminal investigation.  (This is the “don’t write a check your body can’t cash” problem).  The university setting is no different.  Plus, colleges are thick with committees, panels, town halls, manifestos and missions.  Don’t write a policy without thinking through the process, and how defensible it is.  And do not confuse compliance with ethics.

Focus on high-visibility groups. Athletic teams and fraternities, fairly or unfairly, bear the brunt of criticism for undesirable campus conduct.  On the other hand, those groups are important to university life; have strong alumni support; are in many cases revenue generators (in the case of the athletic department, at least); and can be on–campus bellwethers.  Whatever your policy direction and compliance program, if you have these constituencies with you, the job will be much easier.

How to get sued.

How to get sued.

Don’t Nifong respondents.  We mentioned the Duke lawsuit above.  A prime example of how not to handle university disciplinary procedures was Duke’s process, actions and inactions during the false rape claims lodged against several of its lacrosse players against the backdrop of the misconduct of the now-disbarred criminal prosecutor, Mike Nifong.  (We have written about the Duke lacrosse case here. The definitive work on the case remains Taylor and Johnson’s Until Proven Innocent).

A university’s best defense in the “Dear Colleague” era is a combination of sound preparation; an honest approach in plain English; and a firm devotion to the integrity of process for the benefit of its students without regard to externalities (an unethical and unfit prosecutor, for example) or internal pressures (such as small groups of virulent ideologues).

 

 

 


Dude, That’s My Lighter: Lacrosse, Suspensions, the Fourth Amendment and the White-Collar Thanatos of Zero Tolerance

Early adopters.

Early adopters.

The relationship between lacrosse and white-collar crime is not obvious, although for much of its 20th century history the sport was powered by mid-Atlantic and New England prep-school products whose high schools also provided several All-American rosters of white-collar defendants.  And even for perfectly lawful activities, there has long been a close relationship between lacrosse and Wall Street, as shown in this 2008 Wall Street Journal article about how On Lacrosse Fields, A Battered Bank Is Still a Player

The story of how these Maryland lacrosse players’ case moves into court  raises some curious insights, though, into matters of compliance and internal policing, not to mention Fourth and Fifth Amendment issues that can figure prominently in white-collar trials:

Families of two former Maryland high school lacrosse players have filed a federal civil rights lawsuit against school officials alleging that the teens were suspended for having dangerous weapons after an unconstitutional search of their equipment bags turned up two small knives and a lighter.

The lawsuit alleges that school officials in Talbot County, on Maryland’s Eastern Shore, violated the students’ constitutional rights to due process and their protections against unreasonable search and seizure in 2011 when they boarded the team bus to investigate a tip about alcohol and took action against the teenagers for items the students said they used to maintain their lacrosse equipment.

The Leatherman.

The Leatherman.

The items were a lighter and a knife.

Leftover from a Doobie Brothers concert (1978).

Left over from a Doobie Brothers concert (1978).

The suspensions were reversed by the state board of education, and the players filed a federal civil rights action:

The Maryland State Board of Education ruled against the school system in 2012 and ordered that the students’ records be cleared of the incident. The state’s decision was a rare reversal of student punishment and appeared to be in opposition to the zero-tolerance policies that have taken hold in schools across the country.

Lawyers with the nonprofit Rutherford Institute, a civil liberties advocacy firm, filed the lawsuit last month in U.S. District Court in Baltimore, seeking monetary damages from the Talbot County school board and four current or former school officials. It comes at a time when U.S. Education Secretary Arne Duncan has urged that out-of-school suspensions be used as a last resort for school-related incidents.

Before we recoil from the lighter and the knife, and begin to mutter about terrorism, consider this:

No alcohol was found, but during the search, Graham Dennis, then a 17-year-old junior, volunteered that he had a small knife, which he used to fix his lacrosse sticks, inside his gear bag.

School officials took the knife as well as a Leatherman tool they found and called police. The teenager was led away in handcuffs and suspended for 10 days.

A teammate, Casey Edsall, also a 17-year-old junior at the time, was suspended for having a lighter in his gear bag. The teenager said it was used to seal the frayed ends of strings on his lacrosse stick.

In its 2012 ruling, the Maryland board [i.e., the panel that reversed the school’s decision] said knives and lighters don’t belong at school but concluded that “this case is about context and about the appropriate exercise of discretion.”

The state board said the coaching staff had tacitly approved the use and possession of the items and that players had openly used them on the bus.

The facts are relatively obvious; their implications, less so.

High school varsity, but lacking Wi-Fi.

High school varsity, but lacking Wi-Fi.

First, students should not have lighters and knives at school.

Second, knives and lighters are frequently necessary to work on lacrosse heads and their stringing.  For a YouTube video on the subject by a mildly-hungover guide, try YouTube Burning String Tips

Third, the school — through the actions of the coaches — approved the open use of knives and lighters on the bus.

The decision of the Maryland state school board is appropriate.  For us, though, it is the board’s note about “context” and the “appropriate use of discretion” that is pertinent both for the thanatos of internal compliance and for the sometimes over-reaching character of white-collar criminal investigations and prosecutions.

(As a refresher: “Thanatos,” a minor Greek deity and the son of Nyx, was the personification of death.  The word now refers to an impulse towards death or self-destruction).

Whose street?  And, does the defendant live on it?

Whose street? And, does the defendant live on it?

First, both the sport and Wall Street have had bad press that at times have made them targets for politicians, activists and prosecutors of all stripes — sometimes with justification, sometimes not.

No doubt, lacrosse has had a tumultuous recent history, starting with the Duke lacrosse case  in which players were falsely accused of rape.

The burden of proof and a university's shameful behavior.

The burden of proof and a university’s shameful behavior.

That case ended with the prosecutor’s suspension and surrender of his license to practice law after an ethics complaint against him.

Prosecutor Michael Nifong

Prosecutor Michael Nifong

Separately, there was later a murder charge against the woman who falsely accused the Duke players, a charge of which she was convicted.  More recently, a member of the University of Virginia men’s lacrosse team murdered a member of the Virginia women’s team.

 

Second, “zero tolerance” is an antonym to “context.”  Context — the business, social, cultural and ethical landscape in which a person operates — is precisely what many compliance programs and white-collar investigations lack.  As in the Maryland lacrosse-suspensions matter, a policy of “zero tolerance” is a often a cover for something else (especially the fear of civil, administrative or criminal liability) other than solicitude for the people, institutions or values that are offered in justification of the policy.

Third, an appreciation of “context” would introduce the concept of proportionality, whether externally (for example, in grand jury investigations) or internally (for example, in compliance-program investigations).  The former investigations are distorted by the fact that many (perhaps most) of the folks at the levers of white-collar investigations have little or no experience of the industries, professions and services being investigated.  Without such experience and context, it is understandable that one tends to see a Red under every bed.

"Senator McCarthy, the compliance staff is ready to meet."

“Senator McCarthy, the compliance staff is ready to meet.”

The latter investigations are distorted by the business internal impulses and pressures under which they operate.  A compliance investigation that leaves significant risk on the table is a failed compliance investigation.

In fairness, though, at times the internal compliance investigation can suffer from over-familiarity, and can fail to see the customary as also potentially criminal.

Alger Hiss at the CrossFit breath-holding competition.

Alger Hiss at the CrossFit breath-holding competition.

And, of course, there are plenty of actual criminals, some of them of distinguished pedigree, even if those investigating and accusing them are clumsy.

Fourth, just as we have an odd body of Fourth Amendment law within the schoolhouse door, we have too casual a view within the corporate boardroom of Fourth Amendment protections.  Much as businesspeople shrink from asserting their Fifth Amendment rights, however wise such an assertion might be, they tend to think of the Fourth Amendment as the province of drug dealers, terrorists, pornographers and the faculty of Harvard Law School.  Both views arise from the otherwise common-sense notion that, “if you have nothing to hide,” why not testify, or be searched?  The “nothing to hide” rationale fails in the context of most white-collar crime, however, because what incriminates is intent, rather than the object or statement itself.  A loan application can contain an error, or it can be a false statement.  A check can be a commission or a kickback.

Burn here.  And here.  And there.

Burn here. And here. And there.

Such considerations come into play in most compliance and white-collar investigations, even those less important than burning the ends of the shooting strings on your lacrosse stick.

Dude.