Krakauer NYT article

[grizgirl]

There's probably even more to it than that.

Yes, it would be interesting to find out if JJ's lawyers were able to spook the university into reversing the expulsion and that's what you'd have to assume that Krakauer and everyone is after. Did the University deny access to documents, prevent attorneys from interviewing, etc.? I can see the school caving at the threat of a lawsuit even if it was sure JJ's team couldn't prove any of that. Obviously, if that's what the school did, then they would have to cave. Obviously Pt. 2, Krakauer must have some reason to think the school didn't do that.

I'm not following your reasoning on Pt. 2. It's not "obvious" to me that Krakauer knows anything one way or the other about what the University did or didn't do wrong with respect to JJ's hearing, or that he's even thought this aspect of the case through all that carefully. His focus seems to be more on how the system goes wrong with respect to its treatment of alleged victims, not on how it sometimes also fails with respect to its treatment of the accused.

Unfortunately, the issues raised by JJ's lawsuit will probably never be resolved (unless the same issues arise in a subsequent case, I suppose). The only documents that are likely to exist that would shed light on the University's thinking on the issue would be any written advice that was provided to the University by UM's legal counsel, and if any such documents do exist, they would most likely be protected by attorney-client privilege, and not subject to any disclosure request. So I don't think Krakauer is likely to uncover anything (either "good" or "bad," depending on how you define those terms in this context) on that issue. Which is kind of unfortunate, because if you strip away all of the emotional aspects of this case and look at it purely from the perspective of "how should a University handle these issues?", I think the issues raised by JJ's lawsuit are also important, and everyone seems to have forgotten about those aspects of the case.

I didn't say Krakauer "knows' anything, I said he 'must have some reason to think' something wasn't handled properly by the school, actually the system, namely Clay Christian. As in, why is he going to all this trouble if he doesn't 'have some reason to think' that there is something strange going on. So obviously he thinks, not knows, something fishy happened based on what he's writing. I don't buy that he's doing it to draw attention to himself or for the money. I think it's obvious that he thinks something just isn't right.

JJ's lawsuit claims are very important. I think that the disclosure of why Christian ruled that JJ be re-tried in university court might shed some light on the veracity of his claims. It could eliminate any question about whether or not JJ should or shouldn't have been re-tried, which would give those interested in this case some peace of mind. I find it compelling. I also find people who just want it to go away kind of compelling.

What's really crazy is had JJ's attorney not appealed to Christian, then JJ probably never goes to criminal court. He finishes his college degree and possibly his playing career if anyone would take him, somewhere else. Maybe he didn't care about that and it was worth it to sweat out the risk of going to prison or maybe he would've went to criminal court anyway. Hard to say for sure, but I wonder. I wonder if he thinks fighting it was worth it now. It probably seemed like it at the time, but what did it get him now that it's all over.

[Grizlaw]

I didn't say Krakauer "knows' anything, I said he 'must have some reason to think' something wasn't handled properly by the school, actually the system, namely Clay Christian. As in, why is he going to all this trouble if he doesn't 'have some reason to think' that there is something strange going on. So obviously he thinks, not knows, something fishy happened based on what he's writing. I don't buy that he's doing it to draw attention to himself or for the money. I think it's obvious that he thinks something just isn't right.

JJ's lawsuit claims are very important. I think that the disclosure of why Christian ruled that JJ be re-tried in university court might shed some light on the veracity of his claims. It could eliminate any question about whether or not JJ should or shouldn't have been re-tried, which would give those interested in this case some peace of mind. I find it compelling. I also find people who just want it to go away kind of compelling.

What's really crazy is had JJ's attorney not appealed to Christian, then JJ probably never goes to criminal court. He finishes his college degree and possibly his playing career if anyone would take him, somewhere else. Maybe he didn't care about that and it was worth it to sweat out the risk of going to prison or maybe he would've went to criminal court anyway. Hard to say for sure, but I wonder. I wonder if he thinks fighting it was worth it now. It probably seemed like it at the time, but what did it get him now that it's all over.

I agree with a lot of what you're saying, but I guess the sub-points on which I agree with you don't lead me to the same set of conclusions you're reaching, if that makes any sense.

I agree with you that a lot of things relating to these sexual assault cases (both JJ's and others from the same timeframe) were not handled well by the University. If you assume that even 1/4 of the allegations contained in JJ's lawsuit are true, then I think you'd have to conclude that the process probably constituted a violation of JJ's due process rights. But if that was Christian's view, and if that concern caused him to order that JJ be re-tried, that's not a "scandal" from my perspective. It's an acknowledgement that the original investigation and hearing were not properly conducted, and an attempt to make things right by vacating the original conviction and ordering a new hearing. In other words, it's a GOOD outcome...the RIGHT outcome. If those are the facts that Krakauer is able to uncover after all of this, then all he will have shown, IMO, is that the University, though flawed in its initial approach, ultimately tried to reach the right outcome, through the right process. And hopefully, that it's on the right path toward fixing its process for dealing with these matters in the future.

I also don't understand why you think that JJ wouldn't have been criminally prosecuted if he hadn't appealed his expulsion to the BOR? The County Attorney's office certainly isn't bound by the outcome of a University hearing. If he hadn't appealed the University's decision, it's entirely possible that he would have been prosecuted in criminal court anyway...and regardless of whether he was or wasn't prosecuted, he would, in many peoples' minds, have been branded a "rapist" for the rest of his life in any event. There is no guarantee that another college or another football team would've taken him, after being expelled from his previous school for raping another student. Given all of the variables, I think JJ's decision to appeal the decision was perfectly understandable.

[TomCat88]

In reading the book it struck me that Charles Couture and Krakauer had developed a rapport. I tend to believe Krakauer is getting his info from Couture. If memory serves, Krakauer described Couture as someone who understands the university court proceedings better than anyone. They aren't the same as a regular court of law and I think they're dictated by the DOE (or is it DOJ?). I believe Couture has told Krakauer that what Paoli presented to Judge Christian and Clay Christian led them to believe that the way the UM investigated the case and conducted its trial was improper, but that Couture (and you must give his opinion some weight due to his position as the person responsible for reading and interpreting the rules for these proceedings) believes that's wrong in the context that university proceedings are conducted.

[Grizlaw]

In reading the book it struck me that Charles Couture and Krakauer had developed a rapport. I tend to believe Krakauer is getting his info from Couture. If memory serves, Krakauer described Couture as someone who understands the university court proceedings better than anyone. They aren't the same as a regular court of law and I think they're dictated by the DOE (or is it DOJ?). I believe Couture has told Krakauer that what Paoli presented to Judge Christian and Clay Christian led them to believe that the way the UM investigated the case and conducted its trial was improper, but that Couture (and you must give his opinion some weight due to his position as the person responsible for reading and interpreting the rules for these proceedings) believes that's wrong in the context that university proceedings are conducted.

Close, but you're off on a couple of the details.

The DoE does not have the authority to require a state institution to adopt a particular standard of proof or a particular set of processes for conducting hearings - it only has the authority to adopt guidelines, and to withhold federal funding from an institution for failing to follow those guidelines. That might seem to some like a distinction without a difference, but it's relevant in this case: the facts here are that UM's student conduct code provided that campus hearings should be conducted based on a "clear and convincing evidence" standard of proof. UM's student conduct code pre-dated the DoE's "Dear Colleague" letter advising universities that campus hearings relating to sexual assault matters should be conducted based on a "preponderance of the evidence" standard; however, UM never formally adopted that standard, and as of the time of JJ's hearing, the code still provided for a "clear and convincing" standard.

During his investigation, Couture and David Aronofsky (UM's legal counsel at the time) took the view that the Dear Colleague letter somehow superceded UM's own student conduct code, and that the hearing should therefore have been conducted under the "preponderance" standard; however, that's not the way that interactions between federal and state agencies ever work. If UM failed to adopt the standard set forth in the Dear Colleague letter, the result is not that the standard set forth in the letter is simply "deemed" to have been adopted - the result is that the rules set forth in UM's student conduct code still control the manner in which the hearing is conducted, and if those rules happen to not be in compliance with the DoE's standards, then perhaps UM loses some federal funding. Obviously, that would not be a good outcome for UM, or for Couture (or for Aronofsky, whose job it probably was to make sure UM's student code was in compliance with the DoE's standards), so it's understandable that Couture and Aronofsky would try to "gloss over" the inconvenient fact that UM's code called for the higher standard, but it doesn't change the outcome.

Furthermore - while it's true that a university disciplinary hearing is not a court of law, that doesn't mean a school is free to simply conduct a hearing in any way it damn well pleases. Hearings still have to be conducted in a way that provides for due process. That's a constitutional requirement, and neither UM, nor the BOR, nor the DOE, nor any other agency has the authority to require otherwise.

[grizgirl]

In reading the book it struck me that Charles Couture and Krakauer had developed a rapport. I tend to believe Krakauer is getting his info from Couture. If memory serves, Krakauer described Couture as someone who understands the university court proceedings better than anyone. They aren't the same as a regular court of law and I think they're dictated by the DOE (or is it DOJ?). I believe Couture has told Krakauer that what Paoli presented to Judge Christian and Clay Christian led them to believe that the way the UM investigated the case and conducted its trial was improper, but that Couture (and you must give his opinion some weight due to his position as the person responsible for reading and interpreting the rules for these proceedings) believes that's wrong in the context that university proceedings are conducted.

Close, but you're off on a couple of the details.

The DoE does not have the authority to require a state institution to adopt a particular standard of proof or a particular set of processes for conducting hearings - it only has the authority to adopt guidelines, and to withhold federal funding from an institution for failing to follow those guidelines. That might seem to some like a distinction without a difference, but it's relevant in this case: the facts here are that UM's student conduct code provided that campus hearings should be conducted based on a "clear and convincing evidence" standard of proof. UM's student conduct code pre-dated the DoE's "Dear Colleague" letter advising universities that campus hearings relating to sexual assault matters should be conducted based on a "preponderance of the evidence" standard; however, UM never formally adopted that standard, and as of the time of JJ's hearing, the code still provided for a "clear and convincing" standard.

During his investigation, Couture and David Aronofsky (UM's legal counsel at the time) took the view that the Dear Colleague letter somehow superceded UM's own student conduct code, and that the hearing should therefore have been conducted under the "preponderance" standard; however, that's not the way that interactions between federal and state agencies ever work. If UM failed to adopt the standard set forth in the Dear Colleague letter, the result is not that the standard set forth in the letter is simply "deemed" to have been adopted - the result is that the rules set forth in UM's student conduct code still control the manner in which the hearing is conducted, and if those rules happen to not be in compliance with the DoE's standards, then perhaps UM loses some federal funding. Obviously, that would not be a good outcome for UM, or for Couture (or for Aronofsky, whose job it probably was to make sure UM's student code was in compliance with the DoE's standards), so it's understandable that Couture and Aronofsky would try to "gloss over" the inconvenient fact that UM's code called for the higher standard, but it doesn't change the outcome.

Furthermore - while it's true that a university disciplinary hearing is not a court of law, that doesn't mean a school is free to simply conduct a hearing in any way it damn well pleases. Hearings still have to be conducted in a way that provides for due process. That's a constitutional requirement, and neither UM, nor the BOR, nor the DOE, nor any other agency has the authority to require otherwise.

Your post makes you sound personally and emotionally attached to UM football. I'm sure you'd agree that's not a good, credible position to be making arguments from. Honestly, you sound upset (and not very lawyerly) when you make statements that are obvious as you worked yourself up to in that last paragraph. You don't sound like you're trying to be informative, you sound more like you just don't want Krakauer's suspicion to turn out to be correct. Why you're pointing out that a school isn't free to conduct hearings any way it 'damn well pleases' etc. is hard to understand. Especially since you're basing this all on your own "if" statement.

If your 'if' statement turns out to be correct, I'd like to know that, also. Either way someone was making a mistake and action needs to be taken, so this exercise that Krakauer is going through should be revealing either way. It will either expose school administrators abusing their authority or it will expose BOR/Higher Ed doing the same.

[Grizlaw]

Your post makes you sound personally and emotionally attached to UM football. I'm sure you'd agree that's not a good, credible position to be making arguments from. Honestly, you sound upset (and not very lawyerly) when you make statements that are obvious as you worked yourself up to in that last paragraph. You don't sound like you're trying to be informative, you sound more like you just don't want Krakauer's suspicion to turn out to be correct. Why you're pointing out that a school isn't free to conduct hearings any way it 'damn well pleases' etc. is hard to understand. Especially since you're basing this all on your own "if" statement.

If your 'if' statement turns out to be correct, I'd like to know that, also. Either way someone was making a mistake and action needs to be taken, so this exercise that Krakauer is going through should be revealing either way. It will either expose school administrators abusing their authority or it will expose BOR/Higher Ed doing the same.

I am personally attached to UM football, and even moreso to UM as an institution - I don't think I've ever claimed otherwise. But that doesn't change the fact that my description of the proceedings (and UM's incorrect application of the standard of proof) is accurate. The assertion that you refer to as my "if statement" (i.e., the assertion that UM incorrectly applied the standard of proof in JJ's hearing) is part of the record in JJ's civil suit. If you don't think I'm a credible source on this, then don't believe me - I provided a link to an article that contains the trial court's record; feel free to read it yourself, and let me know if anything I said is wrong. Same goes for my assertions about the DoE's authority to dictate the standard that UM applies, or my comments on the legal process in general - if you think I'm not credible, then do your own research, and show me where I'm wrong.

To be honest, I don't even know for sure what Krakauer's suspicion is at this point. I don't know what he's trying to prove, beyond what he already said in his book. Of course I don't "want" anything to be wrong at UM. If something is wrong, I want it to be fixed (as do you, I assume). I wouldn't deny him his right to snoop around and request documents to his heart's content, but I don't know what he's hoping / expecting to find.

[grizgirl]

Your post makes you sound personally and emotionally attached to UM football. I'm sure you'd agree that's not a good, credible position to be making arguments from. Honestly, you sound upset (and not very lawyerly) when you make statements that are obvious as you worked yourself up to in that last paragraph. You don't sound like you're trying to be informative, you sound more like you just don't want Krakauer's suspicion to turn out to be correct. Why you're pointing out that a school isn't free to conduct hearings any way it 'damn well pleases' etc. is hard to understand. Especially since you're basing this all on your own "if" statement.

If your 'if' statement turns out to be correct, I'd like to know that, also. Either way someone was making a mistake and action needs to be taken, so this exercise that Krakauer is going through should be revealing either way. It will either expose school administrators abusing their authority or it will expose BOR/Higher Ed doing the same.

I am personally attached to UM football, and even moreso to UM as an institution - I don't think I've ever claimed otherwise. But that doesn't change the fact that my description of the proceedings (and UM's incorrect application of the standard of proof) is accurate. The assertion that you refer to as my "if statement" (i.e., the assertion that UM incorrectly applied the standard of proof in JJ's hearing) is part of the record in JJ's civil suit. If you don't think I'm a credible source on this, then don't believe me - I provided a link to an article that contains the trial court's record; feel free to read it yourself, and let me know if anything I said is wrong. Same goes for my assertions about the DoE's authority to dictate the standard that UM applies, or my comments on the legal process in general - if you think I'm not credible, then do your own research, and show me where I'm wrong.

To be honest, I don't even know for sure what Krakauer's suspicion is at this point. I don't know what he's trying to prove, beyond what he already said in his book. Of course I don't "want" anything to be wrong at UM. If something is wrong, I want it to be fixed (as do you, I assume). I wouldn't deny him his right to snoop around and request documents to his heart's content, but I don't know what he's hoping / expecting to find.

Hmm? I guess I'm just not smart enough with legalese to follow your line of thinking completely. Oh well.

[GRIZ1STCATS2ND]

Figured no need to start a new thread. Word is the Johnson family isn't quite done yet either. You may disagree, but as far as I am concerned. Good for him/them. Go get em/him.

UM and Jordan Johnson agree to settlement

By Mike Dennison - MTN News
HELENA -
Former University of Montana quarterback Jordan Johnson has agreed to a $245,000 settlement with the state over claims stemming from a 2012 rape allegation.

The settlement filed late Tuesday is related to UM's 2012 investigation and finding that Johnson raped a fellow student. UM expelled Johnson, but that decision later was overturned by the commissioner of higher education.

A Missoula jury also acquitted him in March 2013 on a rape charge brought by Missoula County prosecutors.

Johnson filed a claim with the state, accusing UM and UM officials of violating numerous rights during its investigation of him in 2012.

In exchange for the settlement, Johnson agreed to release UM from any liability.

An attorney representing the state says UM "strongly disagrees" with Johnson on "matters of fact and law" but decided settling the case was in the best interest of for the state.

The state also said it admits no liability in the matter

[tampa_griz]

There was a little more to it than that, though.

The NYT article makes passing reference to JJ's federal lawsuit against the university, referring to it as a "sideshow." That wasn't really true, though -- the lawsuit ended up being moot because of the way the criminal case turned out (and because JJ's expulsion was reversed - more on that in a minute), but if you go back and review the actual allegations that were the basis of JJ's lawsuit, you'll recall that there were some pretty serious allegations that the University's process for conducting the investigation and the "University Court" proceeding resulted in violations of JJ's due process and Title IX rights. (Among the allegations were that the University denied JJ's counsel access to documents that it was preparing as evidence against him, took steps to prevent his attorneys from interviewing the accuser's roommates and other witnesses, and that the University's procedural rules prevented JJ's attorney from participating during the hearing.)

I bet Grizlaw feels pretty silly now. I wasn't aware that JJ's lawsuit was still going.

I remember Dean Couture making a statement that they didn't need Kirsten Pabst's presence at the University hearing "because they were professionals and didn't need a civics lesson" from her. This settlement, combined with a federal judge's harsh critique about the University's proceedings against the accused, pretty much blows that claim out of the water. It would seem that yes, the University was in dire need of a civics lesson.

[lutecat]

People pay to make lawsuits go away all the time. When faced with the unpredictability of a jury, it's the safer thing to do. A settlement is not a "guilty" indictment. Often it's to make a lawsuit go away.

Sent from my SAMSUNG-SM-G920A using Tapatalk

[iaafan]

The articles don't give many details. How much was it going to cost to go to trial and how much was Johnson suing for? If the suit was for $1 million and the cost of going to trial was $200,000, then it was a good move by UM. If the suit was only for $300,000 and it only cost $25,000 to go to trial, then UM looks guilty. Without knowing that it's hard to make much out of this settlement.

[Joe Bobcat]

People pay to make lawsuits go away all the time. When faced with the unpredictability of a jury, it's the safer thing to do. A settlement is not a "guilty" indictment. Often it's to make a lawsuit go away.

Sent from my SAMSUNG-SM-G920A using Tapatalk

Sounds very much like not guilty but not inocent either. Kinda the theme that runs through every part of this case beginning on the night of the foresters ball if not even before that.

[tampa_griz]

The articles don't give many details. How much was it going to cost to go to trial and how much was Johnson suing for? If the suit was for $1 million and the cost of going to trial was $200,000, then it was a good move by UM. If the suit was only for $300,000 and it only cost $25,000 to go to trial, then UM looks guilty. Without knowing that it's hard to make much out of this settlement.

Tomorrow morning I'm going to walk into UM's office and demand one trillion dollars or I'll sue them in court. How much do you think I'll get if I offer to settle?

[iaafan]

I don't know, by my guess is they'll settle with you for $0 and hearty laugh, but lets find out. Go do it and show us the check.

[SonomaCat]

The articles don't give many details. How much was it going to cost to go to trial and how much was Johnson suing for? If the suit was for $1 million and the cost of going to trial was $200,000, then it was a good move by UM. If the suit was only for $300,000 and it only cost $25,000 to go to trial, then UM looks guilty. Without knowing that it's hard to make much out of this settlement.

Tomorrow morning I'm going to walk into UM's office and demand one trillion dollars or I'll sue them in court. How much do you think I'll get if I offer to settle?

You'd be surprised ... if you came up with even the most absurd of claims they may well pay you to go away. We saw that kind of thing in the corporate world all the time. A former employee would have a totally bogus case, but the cost of litigating it (along with the potential cost of bad PR) makes it cheaper to just pay them something to "settle" and go away.

[Grizlaw]

You'd be surprised ... if you came up with even the most absurd of claims they may well pay you to go away. We saw that kind of thing in the corporate world all the time. A former employee would have a totally bogus case, but the cost of litigating it (along with the potential cost of bad PR) makes it cheaper to just pay them something to "settle" and go away.

Agreed, that does happen, although $245,000 is a bit beyond what most organizations are willing to pay to settle a lawsuit that they consider to be completely bogus. I already gave my view on the case (which was only based on what was in the newspaper a couple years ago, and not on any confidential information that the state and JJ's lawyers would have had), but suffice to say, they must've believed that they had some significant litigation risk. I mean, this isn't exactly a trillion dollar oil spill case against BP that we're talking about...

[tampa_griz]

I'm guessing the following statement a federal judge made in reference to the University's "process" was a factor in their decision to settle.

“From a normative perspective, the process applied to Plaintiff Doe and the behavior of university officials in investigating and prosecuting this matter offends the court’s sense of fundamental fairness and appears to fall short of the minimal moral obligation of any tribunal to respect the rights and dignity of the accused,” wrote Christensen.

http://missoulian.com/news/local/judge- ... f887a.html

[tampa_griz]

https://twitter.com/gregrachac/status/699827155920941056

[SonomaCat]

You'd be surprised ... if you came up with even the most absurd of claims they may well pay you to go away. We saw that kind of thing in the corporate world all the time. A former employee would have a totally bogus case, but the cost of litigating it (along with the potential cost of bad PR) makes it cheaper to just pay them something to "settle" and go away.

Agreed, that does happen, although $245,000 is a bit beyond what most organizations are willing to pay to settle a lawsuit that they consider to be completely bogus. I already gave my view on the case (which was only based on what was in the newspaper a couple years ago, and not on any confidential information that the state and JJ's lawyers would have had), but suffice to say, they must've believed that they had some significant litigation risk. I mean, this isn't exactly a trillion dollar oil spill case against BP that we're talking about...

Agreed -- I didn't mean to suggest that this particular case was totally bogus (although I can see how one could read that from what I wrote). If I was UM, knowing what is out there and how public opinion can swing so dramatically in these kinds of cases (would a civil trial be a jury trial?), I'm sure they assumed there was a decent chance they would lose the case and pay far more.

[grizpack]

Couture and Aronofsky are gone from the University. That isn't a coincidence. And Pat Williams hasn't been heard from in 2 years. Start your investigation with that....