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Blog and Media Roundup - Tuesday, January 9, 2018; News Roundup
Topic Started: Jan 9 2018, 05:22 AM (123 Views)
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http://canadafreepress.com/article/born-guilty

Born Guilty

By Randolph Parrish —— Bio and Archives--January 8, 2018

It was just over ten years ago that the Duke lacrosse case finally dragged its weary way across the finish line. That case was a storm petrel, flying before the thunder. We should have watched its course more carefully, because it was about to become a paradigm of what was to follow.

First there was first an accusation—that a black woman had been raped by more than 20 white men at a party. After changing her story a few times—maybe it was only five men; or two —the accuser finally settled on three.

The police investigated, but kept no records. That should have been a clue—not to the case, but to where our justice system was headed. Officers normally carry notebooks or pads on which they write down pertinent information. For the Duke case, the officers involved kept no notes at all (aside from the single exception of a couple of flimsy pages, with two or three scribbles).

Neither did they use dry-erase boards. An investigation’s progress is commonly charted on a dry-erase board, and each day’s board is photographed to retain a record of how the investigation is proceeding. None were used or photographed in the Duke case.

Nor were the suspects, after arrest, ever questioned by police. Understand: the case wallowed for a year, but the suspects were never interrogated. No sit-down with detectives in a squalid enclosed room. No video taped sessions. No attorney advising them not to answer that next question—because there were no questions asked, ever. The prosecution even refused repeated offers by the defendants to provide statements on their own. The goal seemingly was not to investigate, but to prevent any opportunity for the accused to formally present proof of their innocence.

The defendants were denied a probable cause hearing, because the prosecutor delayed arresting them until after he had a Grand Jury indict them. No one knows what was alleged against them there, because no records were kept of what was presented to the Jury. The Jury which heard their case also heard 80 other cases that day—allowing on average perhaps five minutes for each case.

When attorneys for the accused asked in court for copies of police radio tapes, the police promptly destroyed those tapes. After DNA testing twice cleared the entire lacrosse team of any contact with their accuser, the prosecutor switched from justifying the tests because they “would immediately rule out the innocent”, to declaring that the results were irrelevant and he would ignore them.

And all that—and very much more—took place in full view of the media, which was baying for conviction from the moment the accusation first broke; and turned a blind eye to anything which might have derailed it thereafter. Vox media vox populi vox dei. Is there any distance between the three?

If Kafka lived in our era, he would be writing fact, not fiction. In 21st century America one can be charged with a crime one didn’t commit—which didn’t even happen—and be not allowed to present proof of your innocence.

We sacrificed the individual to satiate the appetite of the mob

How did we arrive at this situation? As Simone Weil said, the future is made of the same stuff as the present. And so was the past. We’ve progressed back to the medieval notion of guilt by ethnicity. (Could an accused gypsy or a Jew ever be considered innocent in the Middle Ages? Or a black man in the Old South? Ask the Scottsboro kids. How about any male in the modern South? Ask the lacrosse kids.)

And so we stumble on without understanding why we once believed that the rule of innocence until proven guilty was necessary. Or that if we sacrificed the individual to satiate the appetite of the mob, we gave up everything that was worth preserving in society anyway.

Good luck to any innocent who will be accused today. And if by some tiny miracle (as happened with the Duke case) you do manage to slip the bonds of assured conviction, you may still be considered criminal, because your very innocence contributed to the disruption of society’s inner peace. You have created turmoil by raising doubts about the politically-correct world view.

And in our modern world, it’s always the masses that are important, not the individual.

Randolph Parrish is the author of “The Duke Lacrosse Case: A Documentary History and Analysis of the Modern Scottsboro”
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https://luxoraleader.com/what-we-know-about-reggie-lynch-and-his-sexual-assault-investigations/396875/

What we know about Reggie Lynch and his sexual assault investigations
January 8, 2018 Staff Writer

There were more questions than answers Friday, as Reggie Lynch planned to appeal a University of Minnesota decision to suspend him from school until at least 2020. Athletic director Mark Coyle cited privacy laws and referred to general university “policies and procedures.” Here‘s an attempt to clarify.

What‘s the timeline of Lynch and sexual assault allegations at Minnesota?

There have been two allegations of sexual assault against Lynch at the U. This current case is the second one to be made public. It involves an incident in Lynch‘s dorm room at Roy Wilkins Hall on April 28, 2016.

In May 2016, a month later, he was arrested for an alleged sexual assault in a campus apartment. that night and . The Gophers suspended Lynch but reinstated him after the Hennepin County‘s attorney‘s office declined to press charges, citing insufficient evidence. The University‘s Equal Opportunity and Affirmative Action (EOAA) office also investigated the woman‘s claim and cleared Lynch.

This current case, while it occurred first chronologically, came into public view this week when the latest EOAA‘s investigation concluded with a recommendation of a university suspension for .

What do we know about the current case?

The EOAA began its investigation of Lynch for this current case in October, as the alleged victim had come forward about 18 months after the incident. Lynch was scheduled to attend Big Ten Media Days on Oct. 19, but was replaced with Jordan Murphy for what the team called a “schedule conflict.” The EOAA investigation concluded this week, and the school‘s initial finding was to ban Lynch from the university campus until at least August 2020.

Can Lynch appeal?

Yes, and he plans to do so, a source told the Star Tribune on Friday. The appeal means Lynch will not be banned from campus while that process plays out.

Can he play during the appeal process?

from competition. Coyle said Lynch is still part of the team. Lynch can still be around the team and practice with the team.

Will Lynch be visible at games?

No. The Gophers don‘t plan to bring Lynch to home or road games during his suspension, a source told the Star Tribune on Friday.

How will Lynch‘s appeal work?

Lynch plans to appeal through the school‘s Student Sexual Misconduct Subcommittee (SSMS). The SSMS appoints a three-member panel with faculty, academic professional and student members to hear the case, usually within one month of the appeal. After the panel makes its ruling, the accuser or accused can appeal that decision to the University provost.

Why the term “sexual misconduct” is being used?

According to records obtained by the Star Tribune, the EOAA‘s conclusion was that Lynch violated the school‘s “sexual misconduct” code. The university defines sexual misconduct as “any nonconsensual behavior of a sexual nature that is committed by force or intimidation, or that is otherwise unwelcome.” That includes, “sexual assault, relationship violence, stalking, and sexual or gender-based harassment.”

Why was Lynch allowed to play during this EOAA investigation?

This EOAA investigation had no corresponding criminal investigation. “With our process that‘s in place, any student-athlete — if there‘s a criminal investigation that‘s taking place — that student-athlete does not participate,” Coyle said. “Any student-athlete involved in an EOAA process can participate until findings are made against him or her.”

What does the U‘s policy say?

On page 6 of the University‘s Student Athlete Code of Conduct, it says: “Sanctions under this Code, such as an interim suspension, will generally not be imposed before initial findings have been made by EOAA or [Office of Community Standards].” The policy does allow for exceptions if the “substantial, corroborated, and compelling” evidence could lead to suspension or expulsion from the school.

Is that consistent with how the U handled the 2016 football scandal?

Yes. The Gophers suspended four football players in September 2016 for an alleged sexual assault and cleared them after Hennepin County declined to press charges. Five players missed an additional home game because of a restraining order. The EOAA concluded its report in December, and 10 players were suspended from the Holiday Bowl game. After an extensive appeals process, five of the 10 players were cleared, four expelled and one suspended from the University for one year.

Should the Gophers have recruited Lynch in the first place?

“We didn‘t see any ,” coach Richard Pitino said Friday when asked about Lynch‘s background while recruiting him as a transfer from Illinois State. Pitino said they did their background work on Lynch.

Did Pitino have a role in punishment?

“When things like this happen, you go to your boss,” the coach said Friday. “You go to your policies in place. And I feel we did that.”

“I support his decision and I was certainly in on it as well, so I support him,” he added.

Could this turn into a criminal case?

To be determined. Coyle said he was “not aware” of whether the U has forwarded the case to police. The University police department said Friday it has no pending case on Lynch from April 2016.

If there was no police investigation, why is the university suspending him?

The university is required to investigate reports of sexual assault — whether or not police conduct their own investigation — under federal guidelines that apply to schools that receive federal money.

At the University of Minnesota, a complaint triggers an investigation by the university‘s Office of Equal Opportunity and Affirmative Action to see whether the school‘s student code of conduct was violated. The office can recommend suspension or expulsion from school.

According to the university‘s procedure for enforcing the student conduct code, students are entitled to a hearing and have the right of appeal.

Why is the burden of proof different?

In 2011, the U.S. Department of Education directed schools to use a “preponderance of evidence” standard when investigating sexual assault, meaning only that it‘s more likely than not that an assault occurred. That‘s a much lower standard than reasonable doubt.

Also, last year the University of Minnesota adopted an “affirmative consent” policy, meaning both parties have to clearly agree to the sexual ; otherwise, it‘s sexual assault. In other words, it‘s not enough that she didn‘t say no.

Schools that fail to take reports of sexual violence seriously risk violating Title IX, the federal law against sex discrimination in education. They could lose millions of dollars in federal funding.

Is this the end of Lynch‘s playing career?

Impossible to say. If Lynch wins an appeal, he could be back with the team this season, if Coyle allows. If Lynch is not successful in his appeal, it‘s hard to imagine him playing for the Gophers again. He‘s a senior. He is considered an NBA prospect but was not expected to be drafted. Between the NBA‘s G League and foreign leagues, there are plenty of places for a high-level college player to land under the NBA level.
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https://www.twincities.com/2018/01/08/reggie-lynch-has-appealed-suspension-but-potentially-long-process-may-end-his-gophers-career/

What's next in Reggie Lynch suspension? A likely long appeals process.
John Shipley
1/8/18

Gophers basketball player Reggie Lynch has appealed a long suspension handed down Thursday by a university panel but faces a potentially long process that could mean he has played his last game for the University of Minnesota.

Found responsible for violating the U’s rules on sexual misconduct, Lynch, 23, is suspended from athletic competition but still a part of the basketball program and practicing with the team, athletics director Mark Coyle said Friday.

He missed Saturday’s 75-71 loss to Indiana at Williams Arena.

There is no official timeline for an appeals hearing, which could be scheduled for as early as this month, but it took about four months for five Gophers football players suspended in the wake of an alleged sexual assault on Sept. 2, 2016. Their cases were settled on March 20, 2017, about four months after the conclusion of an investigation by the schools Office for Equal Opportunity and Affirmative Action.

Three players won the appeals and immediately were reinstated to the football team but already had missed the Gophers’ 17-12 victory over Washington State in the Holiday Bowl. If Lynch’s appeals process takes as long, he likely won’t play another game for the Gophers.

Last Thursday, the EOAA concluded an investigation that started Oct. 9 into Lynch’s actions.

According to findings obtained by the Pioneer Press, the EOAA concluded that Lynch violated the Student Conduct Code rules on sexual misconduct and rules regarding sexual assault, stalking and relationship violence related to an incident with a 20-year-old college student in his dorm room on April 28, 2016.

As a result, the EOAA recommended Lynch be suspended from school and banned from campus until no earlier than Aug. 1, 2020. Had he not appealed, those sanctions would have gone into effect on Tuesday.

If Lynch, a 6-foot-10 center who was the Big Ten Conference’s defensive player of the year in 2016-17, has hopes of playing again this season, he’ll want a quick appeals process. Barring a postseason tournament berth, the Gophers’ regular season is scheduled to end with the Big Ten Conference tournament Feb. 28-March 4.

Without Lynch, earning a postseason berth might be difficult for the Gophers (13-4 overall, 2-2 Big Ten). Their next game is Wednesday at Northwestern (10-7, 1-3).

Messages to Lynch’s attorney, Lee Hutton, were not immediately returned Monday. The accuser’s lawyer, Amy Isenor, declined comment.

According to the Student Conduct Code, Lynch has several grounds on which to fight the EOAA’s suspension: significant procedural error; misapplication or misinterpretation of the rules he was found to have broken; the appearance of new evidence that might change the findings; and that the sanction was “grossly disproportionate” to the offense.

The appeals process includes a hearing in front of a disciplinary panel, in this case likely a three-member panel of the Student Sexual Misconduct Subcommittee composed of faculty, students and local professionals. Each party can be represented by counsel, and a member of the university’s General Counsel’s Office will defend the decision the EOAA already has made.

Within five days of the hearing, the panel will forward its findings to the school provost for a final ruling, senior vice president for academic affairs Karen Hanson.

The university’s Student Conduct Code defines sexual misconduct as “any non-consensual behavior of a sexual nature that is committed by force or intimidation, or that is otherwise unwelcome. Sexual misconduct includes the following behaviors: sexual assault, relationship violence, stalking, and sexual or gender-based harassment.”

Lynch, 23, was investigated and cleared by the U’s EOAA related to a May 8, 2016 incident. In that case, investigators concluded it was more likely he believed the sex was consensual. He was arrested and investigated by university police in that case, but the Hennepin County Attorney declined to press charges.
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https://www.purdueexponent.org/campus/article_2b0d5097-b637-5986-9d5a-d3cb9c279288.html

Former NROTC member appeals judge's decision | Campus
STAFF REPORTS
1/8/18

Lawyers representing a former Purdue student have appealed a judge’s November decision to dismiss the lawsuit he filed against Purdue after an internal university investigation of a sexual assault allegation against him resulted in his expulsion.

The former Purdue student and Navy ROTC member sued Purdue, as plaintiff John Doe, in January 2017, claiming that Purdue violated his constitutional right to due process. His lawyers argued that Purdue’s investigation of the alleged incident was flawed and assumed a position predisposed to the plaintiff’s guilt.

Doe’s original suit named Purdue University, Purdue University Board of Trustees, President Mitch Daniels and additional parties involved in the investigation as individual defendants in the case.

Purdue’s legal team, led by William Kealey of the Lafayette law firm Stuart & Branigin, filed a motion to dismiss the suit in March. The motion posited that the plaintiff, Doe, lacked the grounds to mount a legal challenge against Purdue.

Kealey’s motion to dismiss on procedural grounds refuted the implied liability of the defendants.

The motion stated that “the Individual Defendants have qualified immunity against Plaintiff’s allegations that he is entitled to more due process than notice and an opportunity to be heard.

“A Title IX claim can only be brought against a federal grant recipient, not an individual.”

On Dec. 15, Philip Byler of Nesenoff & Miltenberg, LLP in New York City and Damon Chronis of the Law Offices of Damon M. Cheronis in Chicago filed an appeal of the lawsuit’s dismissal on behalf of the former student.

“Notice is hereby given that Plaintiff John Doe, hereby appeals to the United States Court of Appeals for the Seventh Circuit from the November 15, 2017, Opinion and Order, and Judgement [Dkt. 31-32] granting Defendant’s Motion to Dismiss Plaintiff’s Complaint that was in effect a dismiss with prejudice of the entire Complaint constituting a Final Judgment,” the notice of appeal stated.

The original lawsuit alleged that Doe was sexually discriminated against by Purdue based on requirements universities must abide by to remain in compliance with Title IX. It claimed Purdue failed to conduct an impartial investigation and was inherently prejudiced during the process.

Title IX is a federal law that requires educational institutions that receive federal funding to follow certain guidelines to prevent sex-based discrimination of any form. In its infancy, Title IX was often associated with athletic programs at colleges, but it applies to all facets of the campus experience.

Nesenoff & Miltenberg, LLP has been a leader in the fight against what some see as higher education’s instinct to assume guilt when presented with sexual assault allegations.

“We believe — unconditionally — that sexual assault is unacceptable under any circumstance,” the firm says on its website. “We also believe that accused students and faculty must be afforded their civil rights and due process under the law, and that many colleges and universities are falling far short of this standard.”

Doe’s claim is one being seen with increased regularity in recent years as lawyers representing alleged assailants on college campuses try to combat the effects of a 2011 “Dear Colleague” letter disseminated by the U.S. Department of Education under the Obama administration, which directed schools to use a preponderance of evidence standard when determining guilt or innocence of an accused in sexual assault investigations.

This preponderance of evidence standard requires a level of certainty greater than 50 percent for determination of guilt.

A “Dear Colleague” letter is an unofficial memo distributed to members of a legislative body informing them of upcoming action. In this case, the letter was used to provide universities receiving federal dollars with guidelines on how to structure investigations into alleged sexual assaults.

Lawyers representing clients in similar situations to Doe here at Purdue were given ammunition by the interim guidance issued in September by the U.S. Department of Education under Secretary of Education Betsy DeVos’ command. The interim guidance effectively rescinded the preponderance of evidence standard created by the Obama-era letter.

Schools are now instructed to use a higher standard known as “clear and convincing evidence,” but DeVos left it up to schools to decide whether not to adopt the suggested change in policy. The DeVos letter stated that the old rules lacked “basic elements of fairness” with a bias in favor of the accuser over that of the accused in sexual assault cases.

Purdue has not yet responded to Doe’s notice of appeal.
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https://ctmirror.org/2018/01/08/u-s-civil-rights-watchdog-closes-investigation-against-uconn/

U.S. Civil Rights watchdog closes investigation against UConn
By: Jacqueline Rabe Thomas | January 8, 2018

A federal complaint alleging that the University of Connecticut did not properly investigate a sexual assault complaint and that the school was a sexually hostile environment was dismissed late last month – closing the last in a group of complaints about how the school handled these cases.

In a Dec. 26 letter to UConn President Susan Herbst, the U.S. Department of Education’s Office of Civil Rights wrote that it, “has determined that administratively closing this complaint on this basis is appropriate at this time.”

The federal watchdog agency did not conclude the complaint was without merit, but rather that “its ability to complete the investigation is substantially impaired by its inability to contact and receive information from a complainant that is reasonably accessible to him/her and that is necessary for its investigation.”

This case, and others, drew widespread attention in 2013 and 2014 to how the state’s flagship public university handled sexual assault or harassment cases when victims came forward. At that time, four students had filed both a lawsuit and a complaint with the federal watchdog alleging the university was unresponsive or insufficiently responsive when they came forward. Protests on campus and public hearings at the state Capitol followed.

The university settled the lawsuit for $1.3 million, and the original federal complaint was withdrawn on the same day, but a separate complaint also was filed that day. That’s the complaint that was closed last month.

Since then, the university has mandated training for all incoming freshman on how to come forward, resources have been made available to those who do, and students have been educated on the association of alcohol with these offenses. The health center on campus is also now able to conduct a rape kit when students report an assault instead of sending them to a nearby hospital.
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Quasimodo


Quote:
 
Born Guilty


Once in awhile one has to repeat this stuff (especially as there is a new generation which
doesn't remember the case), and when Mangum is back in the news
with her "I was raped" claim...

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kbp

If you limit the Duke story to just a few paragraphs, it would be difficult to explain better than Randolph Parrish did.
.
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