Suspended Gophers get closed door appeal hearings in alleged sexual assault

Ten suspended Gophers football players allegedly involved in a sexual assault begin a closed-door hearing Thursday on their plea to stay enrolled at the University of Minnesota.

The players, all of whom are in classes in the new semester, have been recommended for suspension or expulsion by the U's Office of Equal Opportunity and Affirmative Action (EOAA) after an investigation that yielded an 80-page report detailing an alleged sexual assault in a Dinkytown apartment last year. The players deny assaulting the woman and say the sex was consensual.

From 2-11 p.m. Thursday and 1-10 p.m. Friday, the players and their lawyers will argue their cases for reinstatement. The university will also have a presenter making the U's case under the rules of the Student Sexual Misconduct Subcommittee.

The suspension of the players from the team — and now potentially the campus — rocked the football program, culminating with the entire team threatening to boycott the Holiday Bowl Dec. 16 in San Diego. The team relented and won the game against Washington State without the suspended players. Coach Tracy Claeys, however, was fired.

Lee Hutton and Ryan Pacyga, lawyers for the players, question whether their clients can get a fair hearing at the university and say they will appeal to federal court if necessary.

The allegations have received significant publicity and U officials have made prejudicial statements, Pacyga noted in a pretrial filing. "Those statements, along with the significant amount of publicity, create an environment that may make it difficult if not impossible to find a panel that has not been prejudicially and wrongfully exposed," he wrote.

The lawyers raised other issues as well, including access to evidence and the limited time for the 10 players to make their appeal. The two wanted individual hearings for each student, but the U wouldn't allow it, they said.

"There's no due process at all considering what's on the line," Pacyga said.

While the university's rules differ from the courts', Pacyga noted that students are still entitled to due process under Title IX, establishing an equal right to education under federal law.

According to the rules for such hearings, each student has up to three hours to present his case. The university has allotted 18 hours total for the 10 students.

University spokespersons say that nothing about a student conduct hearing can be made public by them — not even the existence of such hearings and not the outcome.

To suspend or expel a student, a majority of the hearing panel must agree it was "more than likely" the men violated the code of conduct. That differs greatly from state criminal courts where a jury must unanimously agree that a defendant committed a crime "beyond a reasonable doubt."

After the hearings, the committee has up to one week to issue a decision. Students are notified in writing. After that, the U's rules indicate the student can appeal the decision to the provost, Karen Hanson, senior vice president for academic affairs.

If necessary, both lawyers say they're ready for the long haul.

"We're going in there for zealous advocacy for our clients and we hope for the truth to come out," Hutton said. "The truth is nothing nefarious happened in that room."

The suspended Gophers do not face criminal charges. Hennepin County Attorney Mike Freeman has twice reviewed the Minneapolis Police Department investigation and declined to prosecute, noting the enhanced burden of proof in the courts.

The EOAA report, which was obtained and published by KSTP-TV, found the student's claims of sexual assault "more credible" than players' denials. A police investigator, however, reviewed three brief cellphone videos from the beginning of the incident and determined the "sexual contact appears to be entirely consensual."

The lawyers say the EOAA recommended expulsion for Ray Buford, Carlton Djam, KiAnte Hardin, Dior Johnson and Tamarion Johnson; one-year suspensions from the university for Seth Green, Kobe McCrary, Mark Williams and Antoine Winfield, Jr., and probation for Antonio Shenault.

Regardless of how the hearings come out, Pacyga said, anyone can "Google these guys 50 years from now and this is going to be at the top of it."

Rochelle Olson • 612-673-1747 Twitter: @rochelleolson