FIRE Letter to UND President Robert O. Kelley, May 11, 2011

By on May 11, 2011

May 11, 2011

President Robert O. Kelley
University of North Dakota
300 Twamley Hall
264 Centennial Drive, Stop 8193
Grand Forks, North Dakota 58202

Sent by U.S. Mail and Facsimile (701-777-3866)

Dear President Kelley:

The Foundation for Individual Rights in Education (FIRE) unites leaders in the fields of civil rights and civil liberties, scholars, journalists, and public intellectuals from across the political and ideological spectrum on behalf of liberty, legal equality, academic freedom, due process, freedom of speech, and freedom of conscience on America’s college campuses. Our website, thefire.org, will give you a greater sense of our identity and activities.

FIRE is deeply concerned by the University of North Dakota’s (UND’s) refusal to rehear the sexual assault case of Caleb Warner despite the fact that Warner’s accuser has been charged with a Class A Misdemeanor for lying to law enforcement about the alleged assault. UND’s refusal to have the Student Relations Committee reopen the case merely because Warner did not appeal within five days after his finding of responsibility, despite this new evidence that his accuser may not have been telling the truth, displays a disturbing lack of concern for justice at UND and reveals a major flaw in UND’s disciplinary procedures.

This is our understanding of the facts. Please inform us if you believe we are in error.

On December 13, 2009, then-UND student Caleb Warner had sexual intercourse with a female UND student. While Warner has always insisted that the episode was consensual, UND informed Warner in a letter dated January 27, 2010, that he had been charged with sexual assault by the university for the events of that night and ordered him not to have any further contact with his accuser. A follow-up letter of February 1 went into more detail about the charges, which included Violations of Criminal or Civil Laws, Sexual Assault, Interference (defined as “Conducting him/herself in a manner that significantly interferes with the operations of the University or endangers the health or safety of members of the University community and/or visitors on campus”), and Sexual Misconduct (a lesser sexual assault charge that requires that the perpetrator be unreasonably mistaken about consent).

On or before February 9, 2010, the alleged sexual assault was reported to the Grand Forks Police Department, which assigned Officer Jim Vigness to investigate. Vigness met with UND Student Services Officer Jeffrey Powell, at Powell’s request, on February 9, 2010. At that meeting, Powell reportedly asked Vigness not to begin his investigation until after the UND hearing took place. On February 11, UND held Warner’s hearing before the Student Relations Committee, and on February 16, Warner received notice that UND had found him in violation of all of the charges except for the lesser charge of Sexual Misconduct. Warner was suspended from UND for three years and banned from campus.

The Grand Forks police investigation continued after UND’s hearing concluded. In an Incident Report carrying the date of the December 14, 2009, incident, Officer Vigness wrote that he believed that probable cause existed that Warner’s accuser had committed the crime of making a false report to law enforcement. Among the reasons for this finding, Vigness listed the following (as originally formatted but with the accuser’s name redacted by FIRE):

  • [Accuser] first met Caleb at a fraternity party. [Accuser] gave an account of events at the party that were contradicted by several witnesses.
  • [Accuser] sent Caleb a text message days after the party that indicated that she wanted to have intercourse with him.
  • [Accuser] states that on the night of the reported assault that she laid in bed staring at the “Little Caesar’s” sign th[at] she could see through Caleb’s window. The sign cannot be seen through the window.
  • One of Caleb’s roommates stated that he saw [accuser] the next morning and joked with her. [Accuser] denied that happened as well.
  • [Accuser] has given different accounts about events to witnesses including that she had been given a glass of water and that she couldn’t remember anything from that evening after drinking it.

The Grand Forks police did not charge Warner himself with any crime.

On April 23, at the request of Warner’s accuser, the Grand Forks County District Court issued a “Temporary Disorderly Conduct Restraining Order.” A hearing on the matter was scheduled for May 4, and later delayed to May 18. However, on May 13, 2010, the Grand Forks County District Court formally charged Warner’s accuser with violating section 12.1-11-03 (“False information or report to law enforcement officers or security officials”) of the North Dakota Century Code, a Class A Misdemeanor in the state of North Dakota:

12.1-11-03. False information or report to law enforcement officers or security officials. A person is guilty of a class A misdemeanor if that person:

1. Gives false information or a false report to a law enforcement officer which that person knows to be false, and the information or report may interfere with an investigation or may materially mislead a law enforcement officer; or

2. Falsely reports to a law enforcement officer or other security official the occurrence of a crime of violence or other incident calling for an emergency response when that person knows that the incident did not occur. “Security official” means a public servant responsible for averting or dealing with emergencies involving public safety.

The district court’s charge alleged that “[Accuser] provided false information to Officer Jim Vigness that interfered with a sexual assault investigation or materially misled a law enforcement officer.”

Warner’s accuser failed to respond to the charge against her. On May 17, 2010, a warrant was issued for her arrest. On May 18, when Warner appeared in court for his hearing on the restraining order against him, the court dismissed the order because Warner’s accuser had called the court earlier in the day to provide notice that she would miss the hearing and that she would not be returning to the state of North Dakota until August 2010. While it is unknown whether Warner’s accuser has ever returned to the state, Warner and his attorney believe she is no longer enrolled at UND. Indeed, the current list of outstanding warrants from the Grand Forks Sheriff’s Department indicates that as of this writing, nearly a year later, Warner’s accuser still has not answered the charge against her and remains wanted by the state of North Dakota.

In light of this very unusual turn of events, Warner and his attorney asked UND to rehear the sexual assault case against him. On July 28, 2010, Warner’s attorney, Steven Light, wrote to UND General Counsel Julie Evans. Light requested a rehearing for Warner and an opportunity to present the testimony of Officer Vigness and the warrant for his accuser’s arrest for filing a false report to law enforcement about the very incident for which Warner had been suspended. As a basis for the rehearing, Light cited Section 2, Article III, Subsection 7(b) of the UND Code of Student Life. This section reads:

7. SSCA’s [Senior Student Conduct Administrators] may grant a rehearing of a case when:
[...]

b. substantial new information, unavailable during a prior hearing and relevant to the alleged violation, has been discovered.

Light’s letter to Evans pointed out the very obvious fact that a law enforcement agent’s formal determination that Warner’s accuser was being materially misleading constituted substantial new information that had not been available during Warner’s original hearing, which concluded before the police investigation began.

On August 26, Robert H. Boyd, UND’s former Vice President for Student Affairs, replied to Light, informing him that his request for a rehearing had been denied. Boyd denied what he strangely called both a “rehearing” and an “appeal” based on the stipulation in Section 2, Article VII, Subsection B of the Code of Student Life that requires appeals to “be made in writing to the Appellate Body within five class days after the sanction or action appealed is announced.

Boyd’s response contains a crucial procedural error. Warner’s attorney had not requested an “appeal.” Instead, Light requested a “rehearing.” As UND’s own Code of Student Life recognizes, this is an important procedural distinction; indeed, relevant protocols for rehearings and appeals are contained in completely different sections of the Code of Student Life. Again, to emphasize, the section governing rehearings states that one may be granted when “substantial new information, unavailable during a prior hearing and relevant to the alleged violation, has been discovered.” (Emphasis added.)

UND cannot reasonably argue that the fact that Warner’s accuser is currently wanted by law enforcement for lying to police about the very accusation for which Warner was punished does not constitute “substantial new information.” Further, because the state’s attorney did not file the charges of “false report to law enforcement” against Warner’s accuser until May 13, 2010, there is no way that this information would have been available by the time of Warner’s February 11, 2010, hearing. Indeed, the situation in this case would appear to be exactly the kind of situation anticipated by the provision on rehearings in the Code of Student Life.

Furthermore, it is disturbing that UND’s campus tribunal could come to such a startlingly different conclusion about the events on the night of the alleged assault than the Grand Forks Police Department. Section 4-4 of the Code of Student Life states, “[t]he standard of proof that exists for campus judicial proceedings is preponderance of information, i.e. more likely than not the event(s) occurred.” This means that the UND hearing panel determined that there was at least a 50.1% chance that Warner was guilty of sexual assault. This standard is identical to that used by courts in most civil cases, but far lower than what is required in even the most minor criminal case.

In some cases, it is plausible that a university would determine that there is a 50.1% probability that a student committed sexual assault while law enforcement would decide not to pursue a case due to lack of evidence that meets the criminal “beyond a reasonable doubt” standard. That is not what happened in Warner’s case, however. The Grand Forks police did not merely determine that there was insufficient evidence to charge Warner with sexual assault. Rather, the police actually concluded that Warner’s accuser was lying about the alleged assault, and the police had produced enough evidence supporting that conclusion that the state’s attorney charged her with the crime of false reporting to law enforcement.

To illustrate how unusual it is for such charges to be brought against an alleged false accuser, it is worth remembering that even Crystal Mangum, the individual responsible for perhaps the nation’s best-known demonstrably false rape accusations in the Duke lacrosse case, was never formally charged with making a false report to law enforcement.

It is therefore of grave concern that the UND tribunal’s conclusion could be so diametrically opposed and necessarily in conflict with that of the Grand Forks Police Department. Both cannot be right-either UND or both the police and the state’s attorney must be wrong. If the police are right and Warner’s accuser is lying, Warner cannot have been correctly found guilty by UND under a preponderance of the evidence standard.

To be sure, being charged with making a false report to law enforcement is not the same as being guilty of such a crime. In ordinary circumstances, one would expect the court system to determine the outcome of the false reporting charges against Warner’s accuser in a timely fashion. Yet Warner’s accuser has instead avoided answering the criminal charges against her and has been wanted by North Dakota law enforcement for nearly a year. It is hardly fair for Caleb Warner to be forced to wait months or years to potentially be exonerated by a finding that his accuser had been lying simply because his accuser remains “on the run” from the law. Indeed, while not conclusive, the fact that Warner’s accuser has not responded to an arrest warrant suggests that she may not be enthusiastic about her chances in court.

It is long past time for the University of North Dakota to recognize that there is a serious chance that a grave miscarriage of justice has occurred in Caleb Warner’s case. Under these circumstances, a rehearing under Section 2, Article III, Subsection 7(b) of the UND Code of Student Life is fully warranted. That section is not time-limited, so such a rehearing could happen without violating UND’s procedures as they currently stand.

In contrast, failure to hold such a rehearing and consider all evidence and hear all witnesses would raise further questions about UND’s commitment to treating students fairly and justly. It would also raise questions about the seriousness with which UND handles accusations of sexual assault. If UND’s procedures for handling such cases are so flawed that they can produce erroneous guilty findings, then there is no reason for either party to the instant process, UND students in general, or the public at large to have any confidence in UND’s handling of such matters.

FIRE requests that UND immediately grant Caleb Warner’s request for a rehearing on the accusations against him, and that UND allow the admission of new evidence about the veracity of the charges against Warner, including police and court documents and witness testimony. Only by providing a full and fair hearing in light of these new developments will UND be able to demonstrate that its interest is in providing real justice to both the accuser and the accused in its campus tribunals.

The personal fallout for Caleb Warner from UND’s punishment has been severe. Not only is Warner forbidden to attend UND or any other North Dakota public university for three years, but he also immediately lost his job as wrestling coach at Red River High School in Grand Forks. He now works driving a truck for a package delivery service. While his current route does not include UND’s campus, his employment could be in jeopardy if he is reassigned to a route that does, as he is forbidden to step foot on UND property.

If the police’s and prosecutors’ suspicions are correct, Caleb Warner has had his life and career interrupted and disrupted by a false accusation of the most serious nature. He deserves a chance to clear his name.

Because of the serious nature of the disruption to Caleb Warner’s life, we request a response by May 23, 2011. Enclosed you will find a FERPA waiver authorizing UND to communicate with FIRE about Caleb Warner’s case. FIRE is committed to using all the resources at our disposal to see this matter through to a just and moral conclusion. Please spare the University of North Dakota the embarrassment of fighting against our nation’s most fundamental tenets of fairness and due process.

Sincerely,

Robert L. Shibley
Senior Vice President

Encl.

cc:

Julie Evans, General Counsel
Robert H. Boyd, Transition Officer
Lori Reesor, Vice President for Student Affairs
Jeffrey Powell, Student Services Officer

Schools: University of North Dakota Cases: University of North Dakota: Accuser Is Criminally Charged with Lying to Police, But School Refuses to Reopen Misconduct Case