Accused UMaine students denied due process

Professor Donald Zillman (BDN op-ed, Oct. 15) challenged the thoughtfully balanced editorial of Oct. 5-6, which properly questioned whether or not Paris Minor and Stefan Gomes were receiving due process in their student disciplinary hearing at the University of Maine. Professor Zillman is apparently familiar with at least some of the provisions of the Student Conduct Code. Unfortunately, his commentary clearly demonstrates that he simply does not know the facts.

His eagerness to defend the ordeal to which these young men are being subjected is really quite disappointing. It is well-settled that students are entitled to the protections of the due process clause of the Fourteenth Amendment to the United States Constitution in disciplinary proceedings.

The U.S. District Court for the District of Maine has set forth seven minimum requirements which must be observed in student disciplinary hearings to assure due process: advising the student of the charges against him; informing the student of the nature of the evidence against him; allowing the student an opportunity to be heard in his own defense; no punishment without substantial evidence; allowing the assistance of a lawyer in major disciplinary hearings; allowing the student to confront and cross-examine all witnesses; and the right to an impartial tribunal. In this case, every one of these rights has been violated.

Denial of full information. The university’s prosecutor, Judicial Officer David Fiacco, did not inform the accused students of the evidence against them prior to the hearing before the Student Conduct Committee. Instead, the prosecutor withheld critical evidence, gathered by the Old Town police, which seriously undermines the credibility of the accuser. Since the university’s whole case teetered entirely on the credibility of the accuser’s uncorroborated testimony, deprivation of this evidence was an unfair denial of due process. Moreover, the committee chair permitted the accuser to introduce evidence at the hearing, including medical records, that had never been disclosed to Stefan Gomes and Paris Minor before the hearing.

Denial of fair opportunity to be heard. Any fair opportunity to be heard must include the opportunity to present all relevant evidence contradicting the charges and demonstrating that the testimony of the accuser is neither credible nor reliable. The students were effectively muzzled in using that opportunity. They were not permitted to offer evidence of the accuser’s many inconsistent statements, or her prior consensual relationship with two other men. They could not offer independent evidence from other credible witnesses that their accuser had previously engaged in the same sort of consensual sexual activity.

Severe punishment without substantial evidence. When it comes right down to it, the university has given these black student-athletes what amounts to an academic death sentence. They have lost an opportunity to continue their education, lost scholarships and NCAA eligibility, and have been subjected to public humiliation and ridicule both locally and in their hometowns. There was a thorough investigation by the Old Town Police Department and appropriate consideration by the Penobscot County District Attorney’s Office. They have never been arrested or charged with a crime. No person could ever be found guilty and punished on any less “substantial” evidence.

Right of confrontation and cross-examination. By withholding all of the prior inconsistent statements given by the accuser (and her friendly witnesses who, incredibly, were allowed to say that she had told them the same story of rape), the university denied Minor and Gomes any fair opportunity to confront those witnesses with inconsistent statements or cross-examine them about such inconsistencies. They were even required to sit alone behind a wall so that they could not observe all of the proceedings against them.

No impartial tribunal. The process used by the university to select the committee is shocking. According to statements by Robert Dana, the first people to respond to an e-mail are put on the committee. In other words, the people most eager to decide a sexual assault case against two black football players get the chance. The fact that the university sees no problem with that is appalling. All pretense of objectivity was thrown out the window when the university appointed a women’s studies professor and long-time rape victim advocate to chair the committee. The bias and prejudgment by members of the committee is further evident from the recording of the hearing. At one point, a committee member asked questions which demonstrated that he already believed (before any evidence had been offered by the defense) that a rape had occurred. Due process requires a fair and impartial tribunal and these students did not receive one.

Perhaps most troubling is Professor Zillman’s comparison of the preparation and competence of the Conduct Committee to that of a properly selected, unbiased 12-person jury in a criminal case. He appears to totally ignore the fact that the “judge” rejected evidence clearly admissible under any notion of fair play and in violation of even the relaxed Rules of Evidence. The jury in the United States District Court will have the advantage of a skilled jurist to ensure that relevant evidence is received.

Professor Zillman makes much of the fact that, before we, the attorneys for Gomes and Minor, had seen the evidence which had been withheld by the university, the court denied a preliminary motion to enjoin enforcement of the harshest penalty that can be visited on these students. We simply asked that these terribly severe sanctions be stayed until the appeal process had run its course. The university refused a stay of punishment as authorized by its own code and insisted on punishing these men before their rights to appeal have been vindicated.

If there is any consolation in any of this, it is that the evidence, when presented, will prove what a terrible farce this whole episode has been. In truth, they are victims of an academic lynching and have been abandoned and permitted to twist in the wind.

Harrison Richardson is a member of the Bangor and Portland firm of Richardson, Whitman, Large & Badger, which represents Paris Minor and Stefan Gomes.