Momrath,
http://www.foxsports.com/college-football/story/full-copy-of-jameis-winston-hearing-decision-122114
The brief at the bottom of the first link is very interesting…
The two witnesses for Winston…their stories don’t match exactly.
Then there is the consent issue.
Then there are all these cases mentioned…
The Auburn case momrath highlighted has some similarities…but the brief mentions silence can be used against the accused.
Hmmmmmmm…
Thanks, @dstark, for the links. This will take some digesting.
At this point, I guess trying to figure out who’s telling the truth is just a spectator sport. Unless Kinsman files a civil suit or the prosecutor re-opens the case (again) he’s free and clear, and it’s the University that’s on the stand.
What I find interesting about the case is how do you meet the preponderance of evidence standard? What if that standard is met?
I think it can be difficult to meet the preponderance of evidence standard. More difficult than some posters think.
Erica is saying her actions before, during, and after the alleged assault show she was raped. She doesn’t have evidence of the actual rape.
Winston is saying there was consensual sex. She didn’t and can’t prove with a preponderance of evidence standard she was raped because she wasn’t.
It is easy to say there is a preponderance of evidence standard and if the accuser’s story is .01 percent more likely, rule for the accuser. I think it is very hard to do this.
I think Erica’s actions after the alleged assault fit the profile of somebody who was raped. Erica went through a lot after the alleged assault. This case is not just an accusation and the accuser did nothing else. And yes, going to the police a month later is inexplicable if she is a liar.
Yet… A ruling against the accuser has consequences. This case isn’t about petty theft although the accused has done that. 
I guess I am saying even if there is a preponderance of evidence standard and you think the accuser met the standard, it is still hard to rule against the accused.
This is a tough case which makes it fascinating.
The investigation was screwed up and FSU has some explaining to do…
What may have hurt her in this case is that her “before” story was not substantiated by her friend. The friend suggested she did not appear impaired and voluntarily went in the cab. The accused friends backed his version of the story. Many believe they are part of a cover-up, which could be the case, but not really provable. The medical exam did not support her account either. The judge, rightly or wrongly, thought it odd that she got on the scooter (as guess as opposed to calling a cab??). Not sure that is meaningful.
Even if she went willingly back to the apartment, even if she agreed to some activity, if at some point she said no and he did not stop, that is assault. That is the part that is impossible to prove.
I think I’d be freaked if I were a mom and I found out a daughter of mine got in a cab at 1 in the morning with three guys she didn’t know let alone the risk of getting assaulted. Shame on her friends, too, for even letting her do that.
If you read the transcript of the case before Judge Harding, maybe if you read just the summary of the transcript, the story is a little different than what we read in the press. Her friends do not contradict her story. The date rape drug and how drunk she was are not big factors at the Judge Harding hearing and Erica addresses this issue.
Actually one of Winston’s friends contradicts his story in the cab ride. The friend’s stories about the encounter don’t match exactly and the friends of Winston’s don’t testify at the Judge Harding hearing. I don’t know if this matters though. I guess this didn’t matter.
The medical exam does support her story. The exam also supports a story that she wasn’t assaulted. The exam can go either way.
There was no dna from Winston found in her mouth. I don’t know how important that is.
There are 1,000 pages in the case. The public has access to some of this but not all of it. Maybe in the 1,000 pages, the rape drug and Erica’s drunkeness are more important.
We have our biases and that is also a factor in how we look at the case.
The DA’s office did use her alcohol level and the drug test as a couple of reasons, not the only reasons, they did not pursue the case. The DA needs to meet a reasonable doubt standard. I think the DA’s reasoning is wrong on the alcohol test and the drug test. These tests don’t prove anything. Then again, the DA might be saying Erica needed that proof because the DA needs to meet a reasonable doubt standard.
From what I have seen, no way is this case going to reach a reasonable doubt standard.
That video the friend destroyed could have been the key to the case.
I think this is a really good point, and it’s one I hadn’t really thought about before. I think this really illuminates the problem with calling a proceeding like this “civil” in its essence. It’s just too much like a criminal prosecution to make it fair to use procedures from civil court actions.
It was also fascinating to read how the proceedings occur - how bizarre how they transfer a person into the room, then out of the room, upstairs, downstairs…I was also struck by what felt like a waste of everyone’s time (just my reaction)…all those pages of evidence, existing interviews, etc. etc. and yet they had to take an entire day and go through it all over again with nothing new. Felt like,in my opinion,that perhaps colleges could just take all the evidence, transcripts of interviews, statements and supporting statements from accusers and accused and anything else the police or their own investigation uncovers and turn it over to a existing or ex-judge for adjudication. Would certainly take some of the “bias” out of the college Title IX office we’ve been reading about.
Hunt, as far as this case goes, I read what you highlighted too.
I think what you highlighted was ignored by Judge Harding.
I don’t know what is in the 1,000 pages but…
Winston did not present a case during the hearing.
Hunt, do you think the civil court system has the refusal to testify issue wrong?
To me, this was akin to when Congress calls for a hearing for someone facing possible criminal charges. The person being questioned does not want to answer because it could then be used against him in criminal court. Congress is frustrated and often says that the person is obstructing their process, but of course the person has the right not to self-incriminate or to even say anything that could raise questions.
I thought that might be a consideration in these kind of cases. I don’t know that the decision to not press charges was final, meaning that even if new evidence came up the State couldn’t charge Winston (or the others), or still open. If the latter, it would make sense not to testify at the hearing. That makes it hard for the school to really question the accused, especially if LE is not going to end up charging him.
In reality, it seems hard for juries and probably college tribunals, to accept that the accused is not hiding something if he doesn’t testify. Of course they aren’t supposed to consider that, but I would imagine it would cross their minds.
Yes which is why I think it was smart of the college to hire a retired judge. I think employees or colleges and universities are not equipped or practiced in setting aside bias.
I’m presuming everything that he wanted to say was in the documents the judge already had. There was no need to “speak” and nothing new to contribute is my impression. Also as someone said upstream the accuser could still press a civil charge and I’m sure the attorney for the accused didn’t want “another” record on record - doesn’t add anything to the defense. I’m sure his attorney told him to “show up”, give a closing statement and that’s about it.
No, because it’s a civil proceeding. My problem is that disciplinary proceedings for serious infractions aren’t really civil in nature, no matter what OCR says.
Civil cases handle serious infractions too.
If Erica sued Winston in civil court and Winston didn’t present much of a case, and Winston lost $10 million…
Both the infraction and the punishment can be serious.
No?
Just an anedote…
I sat on a jury in a civil case. A woman presented her case. Took a few days. Could have been done in an hour.
After she presented her case, it was the accused’s turn.
The accused’s lawyer said the accuser did not prove her case. We rest. This took less than a minute.
I don’t know. I am slightly amused by this. Before the case got under way, I expected a big battle. I never thought the case was going to be like this. I was wondering how the jury was going to handle this.
The accused won.
Hunt, maybe you should have faith in the process? (I am partially joking).
Civil cases can certainly have big impacts and costs, but their results aren’t “punishments.” They are resolutions of disputes between citizens. Certainly you might feel punished if you have to pay a bunch of money, but it is qualitatively different from a criminal fine, even a fine of 10 bucks. So to the extent college proceedings are really like civil proceedings–that is, resolving disputes between students–then I have no problem with civil procedures being used. But that’s not at all what we’re talking about here.
I have faith in appropriate processes.
So what would you like to see? How would you like these cases handled?
Besides the 75%…
[quote]
If Erica sued Winston in civil court and Winston didn’t present much of a case[//uoqte]
I think if Ms. Kinsman sued Winston in civil court Winston’s attorney would mount a very rigorous case especially since he could potentially soon be worth some money. That’s an entirely different situation than a college conduct case.
I
That is kind of, kind of the opposite argument Hunt is making.
If she sued him in civil court, she could win money, but that’s it. She couldn’t have him kicked out of the NFL, or stripped of his diploma, etc.
I think colleges should use the same procedures that they do for other really serious infractions, like plagiarism, that can result in serious consequences like expulsion. Most colleges use a standard of proof more like clear and convincing for such cases, and they generally provide some criminal-law-like protections as well, such as being represented by a lawyer, being able to confront the evidence in a meaningful way, being allowed to offer witnesses, etc.
I’m not sure why I need to keep explaining this.
Because as information is discovered or evaluated, opinions can change or strengthened…like post #827.
A clear and convincing standard is necessary to kick out somebody for plagarism?
Plagarism is not a safety issue.