UA Codes and Judicial Committee

CORNELL’S CODES & JUDICIAL COMMITTEE
Minutes for Monday, March 10, 2008
Police Conference Room,* Barton Hall, from 4:30 p.m.— 7:00 p.m.

Present

Marty Hatch, Andy Cowan, Nighthawk Evenson, Gary Stewart, Jonathan Sclarsic, Kevin Clermont, Peggy Beach, Bob Kay, Randy Wayne, Mary Beth Grant, Jim Mingle, Kathleen Rourke, Tommy Bruce, Rachel Dorfman-Tandlich, Jack Cao, Glen Galbreath, Susan Murphy, Scott Grantz

Minutes taken by Jack Cao from 4:30pm until 5:40pm

1. Minutes of previous meetings, 2/25/07 — revised & 3/3/08

• Correct spelling of Rachel Dorfman-Tandlich’s name
• 3/3/08 minutes, things should be thinks

Sentencing Guidelines:

• Grant: hearing board chair: guidelines meant for summary decision cases; discretionary sanctions noted a lot; would be helpful to have guidelines; JA’s recommendation as ceiling punishment, hearing peels away from that; concrete guidelines reflecting community standards would be supportive
• Mingle: guidelines beyond what’s put in code
• Grant: yes, ex) repeat offenders
• Mingle: that’d be even more legalistic
• Glen: that has been case sometimes, sometimes not
• Rourke: would it help to have guidelines?
• Mingle: who develops them?
• Grant: originally developed by looking at previous decisions and JA; need to have bigger differential and not have everything in middle
• Sclarsic: JCC not familiar with guidelines; knows procedures though
• Mingle: doesn’t understand why board would need guidelines; if there are guidelines, they should be in code; finds guidelines problematic; can see need for internal guidelines
• Sclarsic: ok to give chair guidelines, but not substantive sentencing guidelines
• Hatch: is hearing board lax in sentencing others, 1 or 2 cases/year; don’t need to get into this question until we find out if sentences are lax
• Rourke: agree with Hatch
• Hatch: focus on whether boards have been lax in sentencing; if community well-being has been disregarded in sentencing
• Glen: how can you answer that question?
• Rourke: don’t think that question can be answered

2. Appropriateness of penalties (F-Appeal Procedures):

a. President’s right to send sanction back to Hearing and/or Review Boards

• Clermont: judicial body isn’t advisory; hearing board may acquit people b/c don’t what sanction will be opposed; will be difficult to know what will happen in plea-bargaining; unexpected effects; reasonable thing to try for a while; may well be that problem, if there is one, will go away
• Mingle: last sentence might be interpreted as meaning that president is part of judicial system; clarify who’s part of judicial system; start this as first precept; pulling from grave misconduct language — not an override; all parts of judicial system are responsible; convergence of concern about responsibility of institution to deal with violence; president to review punishment, not findings; wants to get away from notion that president is acting independently
• Sclarsic: no review that what’s otherwise stated
• Mingle: not overrides; put down clearly the limitation to penalty review
• Sclarsic: seems to be very similar to previous proposals; still uncomfortable; institution takes on responsibility, not just president
• Stewart: there has been no history of abuse by president; at VA tech, president called to resign
• Hatch: doesn’t understand relevance of VA tech
• Stewart: presidential power being stripped
• Kay: what would president’s guidelines be? Using his standard or community’s standard?
• Mingle: understand Kay’s point
• Cowan: violence problem not new at schools; Mingle’s proposal doesn’t solve it
• Sclarsic: not matter of whether there has been history of abuse by president, doesn’t understand justification for it; not in regards hypothetical extremes; has trouble picturing what this language would address
• Mingle: doesn’t solve problem; it strengthens process; there is heightened concern; when there’s a major issue, hearing boards, review panels, etc. fade to background, president is at forefront; president is ultimately responsible; in narrow circumstances, president will explain way; issue can be revisited if it doesn’t work
• Rourke: vote between Kevin’s proposal, and Mingle’s proposal

6 votes for Kevin’s (Evenson, Cowan, Rourke, Kay, Clermont, Dorfman-Tandlich); 2 for Mingle’s (Stewart and Cao)

b. President’s right to change a sanction imposed by Hearing or Review Boards

• Sclarsic: applies only to grave misconduct
• Mingle: language drawn from existing language; this is more explicit, less ambiguity; wants to bring clarity to issue
• Hatch: regulation includes process; language isn’t necessary
• Sclarsic: fears that language implies that process is subject to further review by president
• Grant: president should be able to take action
• Sclarsic: sanctioning process is separate from president’s responsibility to protect campus; language adds additional review of process
• Murphy: regulation means sanctions for this conduct; language clarifies ambiguities
• Mingle: worried about institution, safety, etc.
• Bruce: usefulness of checks and balances; president would use power extremely rarely; must allow for checks and balances
• Sclarsic: worry is with where JA recommends suspension, and student doesn’t get it; seeking suspension means grave misconduct; why wouldn’t president follow JA?
• Bruce: reasons for president not to get involved in all such cases; pressure is on president to use power sparingly
• Hatch: very few cases; must discuss concretes, president may not always agree with JA
• Sclarsic: one of principle concerns of president is that there haven’t been enough suspensions given facts of case
• Mingle: number of violations and punishments don’t synch up

5 votes for leaving in grave misconduct (Cao, Cowan, Dorfman-Tandlich, Clermont, Kay); 2 to remove (Rourke, Stewart); Evenson abstains

Leave as it was (6); use Mingle’s language (2);

Note: pg. 4 in revised code and language regarding Presidential Overrides

JA & Judicial Boards’ guidelines for sanctions?

3. Role of advisor/attorney (p. 13 & 27)

Minutes taken by Jamie Rogers from 5:40pm to 6:05pm

Right to Counsel (Clermont suggestions)

• Rourke: Hearing board chair would control the hearing
• Galbreath: Chair for four years. Hearings that went the smoothest and clearest and stayed away from abusing witnesses from where there have been attorneys involved. I have also been a judge for 17 years. It’s when you have pro se litigants, those that come without and attorney, that you have problems. If you get rid of right to counsel then that attorney will stop the hearing and advise client. It will greatly lengthen the process and you might not get a just result. You shouldn’t bar
• Cowan: Asked Scott Miller, a lawyer who appears in code hearings, how much he charges: $1000 without a hearing; $3000 with a hearing.
• Galbreath: Not being allowed to have a lawyer creates the appearance of unfairness and is also actually unfair. Because you have a skilled attorney on one side, the JA, and a student who goes in basically naked.
• Mingle: This should be an educational system. It is a bad idea when you need a judge from the law school to run a system that is suppose to be an educational system.
• Bruce: This creates a rich-kid system. We’re not guaranteed that we have wise people working all the time.
• Galbreath: This is the two wrongs make a right issue.
• Rourke: We should return to Kevin’s language
• Sclarsic: Under the current language, we have the ability to turn clients down as long as we refer them to someone who can help them. But under the new code, we will see more cases and we will be the only game in town. There are some cases in which we as Judicial Codes Counselors we do not feel competent to handle.
• Mingle: Could you feel competent if there was a seasoned attorney next to you?
• Sclarsic: No. This is a formal system and not like other universities.
• Clermont: Under the new code, you couldn’t have both a lawyer and a JCC because you are only entitled to one advisor.
• Sclarsic: Attorneys will keep them as an improved process. One abusive attorney shouldn’t overshadow the fact that there have been good attorneys.
• Tandlich: We heard from victims advocates that attorneys terrorized victims. I’m confused as to how this is actually going.
• Galbreath: Someone has to do the cross examination: either the attorney, JCC, or the accused. The attorney is saddled with professional obligations, the JCC has some, but the accuser cross examining the witness would be worse.
• Murphy: Students who won’t bring cases to hearing because of a lawyer exist. You have a very legalistic system and with this system you really need a lawyer.

Minutes taken by Ginger McCall 6:00pm to End

Role of advisor or attorney

Kevin’s proposed language (attorney present but cannot speak to witnesses or the board)

• Galbreath: Attorneys are not a problem, it isn’t fair to set up JA attorney v. student
• Mingle: the system is too formal, it mimics the criminal law procedures, other universities have less procedure
• Bruce: attorneys are a rich kid’s defense. Other kids don’t have the same kind of resources. People do not want to be subjected to examination by attorneys
• Sclarsic: JCCs will be the only game in town. Before it was not contemplated that we take every case. Code is not a victim v. accused. JCCs are not qualified to do question victims, etc.
• Stewart: does rape accusation go downtown
• Grant: the victim is always given info to go downtown
• Grant: p13 (new language) is a reasonable way of handling it. It sets up a less intimidating circumstance and levels the playing field.
• Sclarsic: This doesn’t make it a less adversarial system, it just handicaps one adversary
• Bruce: don’t punt to next year
• Clermont: we’re not punting, we’ve considered this and decided to go this way
• Mingle: symmetry: either side can have an attorney
• McCall: still no symmetry there, JCC does not equal attorney
• Dorfman: discussion of part two, need to put in language to protect victim from attorney

Vote for using Kevin’s new language (p.13)

Nay

Andy Cowan, Kevin Claremont, Bob Kay, Kathleen Rourke, Nighthawk Evenson, Rachel Dorfman-Tandlich

Abstain

Gary Stewart

Vote for using Kevin’s new language (p.27)

Yay

Kathleen Rourke, Bob Kay, Andy Cowan, Kevin Claremont, Rachel Dorfman-Tandlich, Nighthawk Evenson

Kevin’s language on Standard of Proof (p. 28)

Staying with Clear and Convincing

• Galbreath: beyond a preponderance of evidence = 1% away from the flip of a coin. This is very problematic for serious offenses. Can’t convict for $5 parking ticket w/o reasonable doubt.
• Sclaric: facts become less importance w/ preponderance standard than the ability of participants to connect w/ board.
• Clermont: administration has gone (Jim, etc. left)
• Hatch: the argument is going to be trotted out that we are coddling violent people and we are creating an environment that is not sympathetic to victims. Maybe we need a PR person to fight that battle. Someone has to say “no, that’s wrong, we’ve handled things very well, the system is meeting.” People are saying we should simplify the code. I don’t think we’ve come up with enough to satisfy that.
• Grant: I looked at the numbers, for the vast majority of cases, where the cases are brough to a suspension hearing the standard of proof to keep it C&C would not be a problem. There might be some cases that might not be making it to a hearing board because the burden of proof is too high and JA doesn’t think that she would be successful before the hearing board. One way to fix this would be to make a distinction between cases where suspension will be sought v. run of the mild cases.
• Galbreath: possibly change it so that if there is violence or threats of violence then there is a different starting point.
• Dorfman: will changing the standard will discourage people from bringing charges?
• Clermont: if president rejects code, he will do it on the ground that it is too legalistic and complex, Glen Galbreath should combat this in the public forum

Vote:

Evidence standard (p. 28) 

No change

Kevin, Bob, Andy, Kathleen, Nighthawk

Abstaining

Rachel

How to deal with victims’ rights issues:

• Sclarsic: more training for chairs
• Wayne: places on web and in code: this is a community based judicial system
• Sclarsic: role of committee is changing: how to sell these changes to the community, should JCC still have input? Find several concrete themes
• Hatch: I think that Glen and you were very strongly speaking in ways that convinced the committee to act a certain way

No meeting next week because of spring break, next meeting

Next meeting on March 24. Andy, Kevin, Kathleen should work on document that the committee can look over on the 24th and turn that in the next day.