Due Process

Gross Injustice at Duke: Accused Student Found Responsible Via 'Indirect-Double-Hearsay'

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Duke
Public Domain

Lewis McLeod, a Duke University student who was found responsible of sexual misconduct by the administration and faces expulsion, has sued the university for violating his due process rights. His lawsuit sheds light on Duke's adjudication process—and no one who reviews the shocking details could conclude that the procedure was anything other than a total farce.

Over at Minding the Campus, KC Johnson provides a thorough accounting of everything Duke allegedly did wrong in the McLeod case, which hinged upon whether McLeod's accuser was too intoxicated to properly give consent when they had sex. The university hired an independent investigator, Dr. Celia Irvine, to determine the facts of the case. Irvine's methods were "odd," according to Johnson; she failed to interview key witnesses and the witnesses she did contact were interviewed over the phone, rather than in person.

Perhaps most galling, Irvine didn't even testify at McLeod's hearing—and was thus shielded from cross-examination. Instead, she merely submitted her report to the hearing committee, making it impossible for McLeod to defend himself:

Having completed her report, Irvine didn't testify before the hearing—denying McLeod an opportunity to cross-examine her about her investigative techniques; and, perhaps more important, denying McLeod an opportunity to ask her follow-up questions about the witnesses that she did interview. Nor did most of the students interviewed by Irvine testify at the hearing. As a result, McLeod's attorneys point out, the student was convicted on the basis of "indirect double-hearsay" evidence. This double-hearsay material included an anonymous witness who said that he or she saw the accuser incapacitated on the night of the incident. In a remarkable coincidence, that anonymous witness made his or her presence known to Irvine on the same day that Irvine asked the accuser about her violation of a mutual no-contact order between the accuser and McLeod.

About that no-contact order: The accuser violated it by attending a party at McLeod's residence. She had been told—by Sheila Broderick of the Duke Women's Center, allegedly—that the accuser was allowed to violate the no-contact order.

McLeod's lawsuit alleges that Duke engaged in all sorts of wrongdoing. His complaint claims that the university actually put substantive limits on Irvine's inquiry, prohibiting her from interviewing certain witnesses. McLeod also alleges that Irvine's status as a private investigator was not made known to him—if it had been, he could have impeached her report. Duke administrators also dissuaded McLeod from seeking an attorney and allegedly told him, "You can get it when you sue us," in response to his request to see copies of the university's new policy on punishments for convicted students.

No one could contend that this process was just. But as the Foundation for Individual Rights in Education's Susan Kruth notes, the consequences for McLeod are massive:

The result of these failures could be life-changing for McLeod despite the fact that a three-person panel was tasked with making the ultimate decision regarding his guilt or innocence. An unfair outcome is even more likely at universities that rely solely on a single investigator to serve as detective, prosecutor, judge, and jury in these cases, with no one who might possibly serve as a counterbalance to an investigator's biases or incompetence.

These miscarriages of justice are staggering, and yet they are common features of nearly every university rape investigtion I have come across. The only sane thing to do is demand that the adjudication of crimes be reserved for the professionals.

Edit: The headline of this article was changed.

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  1. “You can get it when you sue us”

    I bet he will.

    1. Well, that’s telling.

      Seems to me they know it’s fucked up but either feel that it’s unavoidable or that they just don’t care.

      1. Bets on “just don’t care.” This sort of injustice against men is a feature to the feminists who lobbied for it, not a bug.

        1. They get enough taxes and artificially high tuition that lawsuits are hardly a deterrent to unjust administration.

          1. Since the administrators never personally pay a price, this is true.

            1. Decision making becomes value-free whenever you offer immunity from the negative repercussions of your actions, whether you’re a cop, a banker or university administrator. Incentives incentives incentives.

              1. For libel in branding an innocent person a rapist. And for fraud in masquerading as a legitimate judiciary.

            2. Have a judge award McLeod a year’s earnings off of Duke’s endowment as punitive damages I can pretty much guarantee that the board will make see to it that the administration pays the price.

              1. Nah, the board will just have whoever manags the endowment adjust the endowment’s investments so it doesn’t make any money.

          2. Worse yet, every male accused of rape or assault that they don’t expel is a possible law suit by some feminist group.

            Monetarily, the universities stand to lose more by having due process than by not having it, because groups defending due process are less well-funded (and the accused less litigious) than the anti-due process feminists.

      2. They’ve probably decided that settling a few lawsuits from students is better than losing all of their federal funding.

        1. Or being accused by feminists of covering up or winking at “rape culture.”

        2. This^.

          These kangaroo courts are the doing of the Obumbles administration at the behest of the progressive feminists. Godfuckin’ damn every stupid asshole that voted for that POS.

          Tear down the system. Demoralize society. Replace the current system with a totalitarian one. That is their goal.

          1. Yeah, goddammit!

            A real man, a man like W., would just torture the dumb bastards.

      3. They didn’t care if he was actually guilty. Why would they care if he sues? It’s not their money. And it’s not like there are any negative consequences to enjoying membership in the Duke Inquisition. A “Woman Sued By Filthy Rapist” martyrdom badge will get you a spot on the women’s studies guest-speaker list for life.

        1. As far as I know, administrators don’t have any sort of immunity. Sue them personally along with the University.

          1. When university’s admission practices are deemed racist (i.e. not racist enough), who gets sued? I’m genuinely asking. Is there a case against individual administrators, or just the university itself? Or is there only a case against the individual if the university decides to claim the person acted outside of the university policy, and thus is outside of legal protection from the university?

          2. As far as I know, administrators don’t have any sort of immunity.

            Immunity is, in large part, a judicial invention. If they can extend it to social workers (quasi-judicial immunity), they can extend it to anyone with the proper amount of policy related BS.

            1. Duke is a private institution. No sovereign immunity is at play here.

              True story: Georgia Supremes said a cop (a sworn, Georgia POST-certified LEO, not a rent-a-cop) employed by a private college does NOT enjoy sovereign immunity like a city/county cop would.

              1. Then the school just buys them liability insurance.

  2. This is all pretty galling. Then again, false rape reports are a myth. So maybe it’s all a wash?

    1. The thing is, he could be truly guilty and deserve worse than expulsion. But when the integrity of the system is undermined, so is the veracity of the guilty verdict.

      1. The Durham police closed the case. Seems like zero chance he would have ever been convicted.

        1. The girl went to a party at his apartment, against a no-contact order, after she accused him of raping her. That alone should tell you all you need to know about how truthful the allegations are.

          1. Indeed, event he preponderance of evidence standard shouldn’t be enough to convict him.

            Then again, preponderance of evidence seems to be interpreted by these university dipshits as ‘better ten innocent hang than one guilty go free.”

        2. This is what’s screwy about the whole thing. Rape is a serious crime and should be treated as such. About of fucktards, in the case I mean college administrators, don’t have the experience or training to properly handle it.

          In addition, I find is screwy the accuser went to the guys house for a party and violated the no-contact order. This was a consent case after all, too drunk to give, and so Her going back to another of the guys parties hits me as odd.

      2. Indeed. The problem with scrapping proof beyond a reasonable doubt is that the crime is no longer proven beyond a reasonable doubt.

      1. #BelieveHerLies

        (fixed it for you)

      2. #bringbackourgirls

        Damn it wrong inane hashtag.

    2. Since there’s no such thing as a false rape report, why isn’t Bill Clinton in prison for raping Kathleen Wiley?

      -jcr

      1. Depends on which Team’s ox is being gored.

        1. Or which team’s ox is goring.

  3. Easy, Lewis. Don’t lose your head.

  4. Wow, it looks like that whole lacross team business was viewed as motivation

  5. Looks like university students, along with the police, with have to wear tamper proof body cams.

    1. Rule 34?

  6. “indirect double-hearsay”

    This gentleman needs to be put on Double Secret probation.

  7. Look this is all really simple. Do determine guilt we need to answer just one question.

    Does he in fact possess a penis?

    If the answer is yes the obviously he is guilty of rape.

    1. Obligatory:
      <iframe width=”420″ height=”315″ src=”//www.youtube.com/embed/YOROvO2fxTc” allowfullscreen</iframe

    2. Its probably simpler that that. Feminists would suggest that consent can also be withdrawn at anytime after the events have concluded – weeks, years even.

  8. It seems that Duke has too much money, and has decided to distribute it to certain students in lawsuit settlements. You’d have thought the lacrosse case would’ve taught them a lesson.

    1. They are academics, and therefore incapable of learning such lessons.

    2. The Harvard of the south.

      Meaning they are 100% staffed by idiots. And 99% attended by idiots.

  9. I still can’t comprehend why the university has anything to do with this investigation in the first place… isn’t rape a crime police are interested in these days?

    1. But the police need actual evidence that an actual crime was committed. Conviction on her mere word is so much more progressive.

    2. I don’t really have a problem with a university adopting a code of conduct and enforcing penalties up to and including expulsion if they determine a violation occurred. I don’t even have a problem with them doing an independent investigation if they feel one is needed. It’s a free association thing so long as the university stands by whatever commitments and processes it set in had in place when the student agreed to attend.

      Due process and reasonably high standards of proof are all good ideas, and they seem to be sorely lacking in this case. I have a problem with a shitty, stacked system. But if that is what a student agreed to walk into, well they have to live with the consequences of that decision, too.

      I know some people think that public universities should be forced to adhere to different standards. I just don’t really buy that argument. I don’t think it would be a net win for liberty if anyone or anything that accepted government money suddenly became a complete thrall of government. The situation is obviously different when policy is being set by the government proper, and not just by university administrators, like in California. That’s shitty for a whole host of reasons.

      1. That’s the thing, though – the Feds are pushing via Title IX to make the universities their thrall, causing them to make these wildly reactive and asinine policies

      2. “But if that is what a student agreed to walk into, well they have to live with the consequences of that decision, too.”

        Which is meaningless when all colleges compel the agreement as a condition of entry.

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  11. Interestingly, this process is actually used in state courts daily.

    McLeod’s report was prepared precisely in the way Guardians Ad Litem appointed to represent the interests of children in custody disputes prepare recommendations for probate courts.

    Every year thousands of children are placed with parents based on a very similar process. The one difference: a parent can cross examine a GAL in court. However, he/she is expected to pay a fee for the GAL’s time.

    A typical GAL investigation costs $4K with an additional $2K required if a GAL testifies.

    1. Nice racket

      1. Sounds like getting a sit down with a made member of the Mafia; you have to pay just to get the chance to talk; except you probably get better results with the Mafia.

  12. Do i need a lawyer? = “”You can get it when you sue us,””

    Well, if that’s not a sign of people involved in an unbiased, impartial investigation, i don’t know what is.

    “After we railroad you, you’ll have all the time in the world to confer with counsel”

    “The only sane thing to do is demand that the adjudication of crimes be reserved for the professionals.”

    hmmm.

    (visions of Burt Lancaster and Woody Strode)

    Well, if you mean ‘the government’, OK = but I hesitate to give them any kind of elevated titles implying ‘wisdom and competence’, so much.

    How about, “…that the adjudication of crimes be reserved for the Criminal Justice Bureaucracy our taxes already pay for, and which are strictly government by constitutional limits and individual protections out of awareness of this very kind of institutional bias”

    1. Picky, picky, picky!

  13. That kid wanted an education, and he sure as Hell got one.

  14. The old standard was to avoid victim complaints. The replacement seems to be tossing anyone out if there’s a complaint.

    Perhaps, maybe, handling these things internally doesn’t work?

    1. Sure it works: fewer men graduating from college. This is how feminists intend to correct the gender disparity in upper echelons of industry and government.

  15. My first reaction was that rape is a crime and should be handled by the police, not the university. On the other hand, the university can’t put him in jail like the police/court can. Businesses can fire employees, and universities can expel students, for inappropriate behavior. What interests me about cases like this is that it gives us some insight into how private laws/police/courts might work in a future with less government. Obviously the process was broken in this case, but I think there’s a lot we can learn from it.

    1. The Federal Government is telling universities to conduct these kangaroo courts. No idea how you arrive at the conclusion you did.

  16. Here’s my idea for handling rape on campus.

    Every freshman, as part of their orientation, is offered a choice of handguns (paid for out of their tuition), and gets a course on self-defense and application for a concealed carry permit.

    If the accept, I don’t think they’re going to need to worry too much about getting raped. And by rape, I mean forcible sexual assault, not drunkfucking.

    If they decline, well, the university did what it could to prevent them from becoming the victim of a violent crime, and they’re on their own.

    1. They already have a choice of handguns. Most already choose not to purchase one.

      1. stupid kids

      2. Yeah, but these would be free (well, prepaid, but you know what I mean) and would come with training. You would have no excuse at all for not being capable of defending yourself from violent crimes.

        And a campus packed with concealed carry would be the safest place in the country.

      3. Most campus’s violate the 2nd Amendment badly.

  17. “The only sane thing to do is demand that the adjudication of crimes be reserved for the professionals.”

    I certainly agree in principle, given what seems the serious problems with campus “trials.”

    But bear in mind that the due-process guarantees of the criminal law are only applied in a minority of cases – generally there’s a plea-bargain. Of course the defendant “voluntarily” accepts the plea bargain, in the sense that he decides to accept the certainty of a lesser punishment versus the risk of getting convicted and receiving a worse punishment.

    Still, plea negotiations, which are the de facto form of trial for most cases, aren’t ideally suited for sorting out the guilty for the innocent. Some defendants will have their lawyers pressure them – “maybe you’re innocent, but if the jury believes this girl you’ll get a more severe punishment than what my buddy the DA is offering you, so I suggest you take the plea.”

    1. Yeah but if you get a good lawyer he’ll trade the first pick in his fantasy football draft in order to knock a few years off your sentence.

  18. One clarification: while Irvine acted as a private investigator, she is not, according to the MacLeod’s complaint, licensed as a private investigator in the state of North Carolina, despite the fact that her actions clearly fall under the description of the duties of a private investigator under North Carolina law.

    Flagrant disregard for the law is a great place to start when you’re investigating a crime.

    1. Flagrant disregard for the law is a great place to start when you’re investigating a crime.

      Every cop everywhere agrees.

      1. I was referring to her credentials, not her qualifications…

  19. Stories like this are why I contributed to FIRE this year. I am a woman and I’m well aware of how hard it can be to get a sexual assault prosecuted. Responding to one unfairness in life by adding more is hardly the right answer. In addition to throwing well-proven standards of justice overboard and hurting accused men, I am also horrified by the infantalization of women wherein we are teaching undergrads that they have no responsibilities to control their drinking or to articulate their interest or lack thereof in sex in a clear and unambiguous way.

    1. As soon as I have money to spare, FIRE is probably the first organization I’ll donate to. They’re among the only ones fighting the good fight against the Goliath of the university system and the state.

  20. no-contact order

    Um…who issued this no contact order? A court?

    This is an abomination, top to bottom. Rape is a criminal matter to be handled by the Justice System. This is a fucking kangaroo court with NO legal authority whatsoever. I hope Mr McLeod does a better job of running things when he owns Duke.

    So, for all you lawyers, does Duke open itself to prosecution for “knowing” a crime has been committed and not reporting it to the authorities?

    1. The local PD already had investigated and closed the matter, so Duke just decided to do their own little witch trial.

      1. Ah. So even more basis for a lawsuit.

    2. does Duke open itself to prosecution for “knowing” a crime has been committed and not reporting it to the authorities?

      Probably not. Failing/refusing to report a crime, without more, is (still) legal (absent some truly stupid one-off statute).

      I do think that, if they don’t report a rape, and the rapist attacks someone else, that someone else would have a very interesting lawsuit.

  21. Is this what happened?

    1. witness saw the crazy ho drunk off her ass.
    2. witness notified the special investigator of crazy ho’s drunken state the same day that the special investigator asked the crazy ho why she violated a no-contact order with her drunk hookup.
    3. the crazy ho broke the no-contact order by going to her drunk hookup’s house during a party.
    4. drunkfucking ensued.

    1. witness notified the special investigator of crazy ho’s drunken state the same day that the special investigator asked the crazy ho why she violated a no-contact order with her drunk hookup.

      The sequence of events here is interesting.

      If the investigator contacted the crazy ho first, then I would want to know if the witness was prompted by the crazy ho to call the investigator to turn this from a “crazy ho violated order” to “crazy ho was drunkraped”.

  22. You know, this is one of those cases where I’d not only like to see the judge side in the plaintiff’s favor, but also assign punitive damages. Say, one year’s earning from the Duke University endowment. I think the college might behave a little differently if they had to pay out $300 million (5% return on 6.04 billion).

    1. I’m allergic to punitive damages. Restitution can be paid based on a preponderance of the evidence, but punishment should require proof beyond a reasonable doubt.

      Now, you can make a plausible for pretty stout restitution in cases like this. Plenty of intangible damages, but just lifetime reduced/lost earnings for 20 year old can get into some serious money. Call it an average of $50K/year over 45 years, and you’re over $2mm, without the intangibles.

      I for one would love to see Duke arguing in court that a Duke diploma really isn’t very valuable, so wrongfully kicking someone out doesn’t really hurt them.

      1. I’m not fond of them in principle. That said, I can where they might make sense when you have a civil claim where the defendant pretty clearly acted with malice, even if no law was broken. And this looks about as plainly one of those cases as I’ve ever seen.

  23. Pretty much tells you all you need to know that the school knows they are going to be sued over this.

    I will say the Due Process claim sounds a little weak without knowing more about what they are alleging. (sex discrimination in terms of how the policies are applied perhaps?) because the school doesn’t owe him the right of a fair trial in any way. That only applies to an actual court.

    1. Personally, I think you can hang all the damages on a straightforward defamation claim.

      The great thing is, that allows you to get to the idiot “investigator”, too.

      Even though you wouldn’t even need to prove recklessness or malice (because the student isn’t a public figure), I think you could easily do so.

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  25. I think a complete apology, pinned to a check for $50MM would be in order.

  26. If I had large bank, I would find the nastiest shark the legal profession ever produced, call him up, and tell him, “Hi, can you practice in NC? I want to teach some railroading, witch hunting dirtbags a lesson, and I’m willing to spend a few million to do it. Interested?”

    In fact, I think I would just start up a foundation that just does nothing but financially CRUSH the perps of stories like this. Money well spen, AFAIC.

  27. If I was going to college now, there’d be no way in hell I would have sex with anyone, under any circumstances. It’s just not worth the risk.

    1. Well, you could always go gay…

  28. “The only sane thing to do is demand that the adjudication of crimes be reserved for the professionals.”

    All college and university students should be required to take some type of orientation with clear guidelines and protocols.
    Does the school have access to rape kits? Is there a hotline students can call? Repercussions for false allegations ? Dismissal for those found guilty? Notations in their transcripts ( student should be required to have X amount of counseling hours before acceptance into another school). Most of these schools have no procedural requirements
    for their own staff and faculty much less, for their students. It’s just plain stupidity.

    1. And while I’m thinking about it, schools that perform their own internal justice
      should be required to seal student records. There is no law that validates
      their judicial process.

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  30. This is the obvious consequence of the quasi-judicial regime that campuses have put in place in their ridiculous attempt to address the inflated rape crisis. Lots of people are going to lose their educational futures over flimsy cases like this, universities will pay out million dollar settlements, and rape accusers become harder to believe. (After all, every time you read a story about a rape accuser who knowingly attends a party with the person they just accused of rape, it makes you more skeptical each time you hear a future accusation).

    I sense a growing backlash, and serious financial consequences for higher education.

  31. Good report. Thanks for doing it. Thank goodness for FIRE.

    It should have been clear long ago that college admins, more and more run by liberals and politicized feminists, are not interesting in due process for the male students accused of sexual assault — only in ringing up numbers in the sexual-assault count to prove a “rape culture” exists, all with the blessing of the Obama Admin.

    I sincerely believe it all could have been so very different — so much better — between men and women. There’s still hope, I think. See:

    “The Sexual Harassment Quagmire: How To Dig Out” http://malemattersusa.wordpres…..-quagmire/

    1. Not really.

      College admins are instead desperate to get feminists off their backs and avoid like the plague Title IX investigations by convicting a significant percentage of those accused. That’s the primary motive here.

  32. After Duke’s epic fail in the last rape accusation, you would think they would tread more carefully. Emotion and bias does trample reason it seems.

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  34. Rape being a felony, I would think that “the professionals” would, of needs, be involved or might it be that these academic types prefer to avoid involving “professionals”, they being those who know about the prosecuting of felonies.

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