As Jameis Winston's attorney, David Cornwell, continues to negotiate with Florida State over when Winston will appear at a disciplinary student code of conduct hearing, SI.com legal analyst Michael McCann takes a look at the numerous legal issues at play and the concerns for Winston and his legal team.

Source of law

FSU’s Student Conduct Code would govern the hearing. Although Winston has not been charged under the code, he faces four likely charges. Two of those charges involve sexual misconduct and would accuse Winston of having sex without consent and creating a hostile environment for his accuser. The other two charges relate to violence against another student and endangering that student’s health.

FSU’s code is unexceptional. Most universities (including the University of New Hampshire, where I teach) employ a code of conduct that regulates student behavior. These codes are designed to inform students of potential consequences to misconduct and students’ rights to contest accusations. By enacting rules, universities also establish predictable outcomes and minimize inconsistencies in punishment. Still, university codes attract criticism for denying the accused the same quality of due process and protections found in courtroom trials.

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Winston must appear at the hearing, but he doesn't have to speak

Assuming he is still enrolled at FSU, Winston would be obligated to attend a hearing. The university could infer an acknowledgement of fault from Winston’s absence. While he is required to attend a hearing, Winston would not be obligated to speak at the proceedings. Winston’s refusal to answer questions, however, could be considered in evaluating his conduct.



If Winston drops out of FSU, the university could not compel him to appear. The university’s jurisdiction is limited to its students, faculty and staff. It’s also unclear why FSU would hold a hearing after Winston leaves. The conduct of someone with no connection to the school and whom the school could no longer punish would arguably constitute a moot matter.

On the other hand, the accuser’s rights should be considered and they could motivate a hearing to occur in Winston’s absence. Even without a hearing, FSU is poised to address issues related to athletes and sexual conduct. This particularly true given the U.S. Department of Education's investigation into whether FSU has complied with Title IX in responding to allegations of sexual violence. Erin Buzuvis, the Director of the Center for Gender and Sexuality Studies at Western New England University School of Law, stresses, "it's important that Florida State addresses and prevents sexual violence committed by its students, including by athletes, and accommodates victims' needs as well."

Winston's potential penalties

If Winston is found at fault, he would likely be suspended for the remainder of the school year or expelled. The code, however, would permit a much lighter penalty, such as community service, counseling or loss of eligibility for student housing. The university would have complete discretion, as there are no sentencing guidelines that would compel a particular sanction.

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Justification for one of three former judges to preside over hearing unclear

Winston would reportedly be judged by one of three former Florida Supreme Court justices: Major Harding, Joseph Hatchett or Charles Wells. Winston and his accuser could eliminate one of the three judges; if they eliminate the same one, FSU would pick between the remaining two. All three former judges have very strong credentials and each is undoubtedly capable of presiding over a university disciplinary hearing.

The potential legal problem for FSU in employing this format is that it would constitute a sharp and perhaps unauthorized departure from normal procedure. While the code empowers the university with discretion in forming a so-called “hearing body” to preside over a disciplinary matter, it does not authorize an outside person to do so. According to the code, “hearing body” means “any person or persons authorized by the Dean of Students or Director of University Housing or as provided for in this Student Conduct Code to conduct hearings or make recommended findings.” The code further lists the range of potential hearing bodies to include seven persons or groups:

1. Director of Student Rights and Responsibilities, or the director’s designee

2. Dean of Students or a hearing officer designated by the Dean

3. Associate Dean of Students

4. A Student Conduct Board composed of five students selected by the Office of Student Rights and Responsibilities

5. An Administrative Hearing Panel, which consists of one faculty member, one staff member, and two student conduct board members;

6. University Housing hearing officers

7. University Housing Conduct Board of fellow students





Winston's lawyer: FSU hearing will have 'no impact on him playing'

Nowhere in the code is former judge or attorney unaffiliated to FSU or anything like that indicated as a possible hearing body. That said, the code includes a “best interests of the University” provision that permits FSU’s Vice President and Dean of Students “to designate individuals as hearing or appellate officers, when appropriate.” The code also permits the Dean of Students or Director of Housing to appoint a designee. Yet the code also expresses that all hearing bodies have the authority to consult with “other appropriate University officials.” The word “other” is potentially significant. It suggests that the hearing body is an “appropriate University official,” otherwise the word “other” would not be used. A former judge who has no relationship to the University would likely not be an “appropriate University official.”



Should Winston and FSU fail to reach an agreement and if FSU proceeds with a hearing, Winston could petition a Florida judge for an injunction to stop or delay the hearing. One of Winston’s core arguments would be that the university’s code does not permit a former judge (or any person unaffiliated with FSU) to serve as the hearing body.

Lack of legal safeguards and reduced due process

In addition to containing ambiguous language about whether a former judge can preside over a hearing, FSU’s code affords Winston far fewer legal protections than he would obtain in a trial. Some attorneys find FSU’s format for a disciplinary hearing untenable. Alan Milstein, an attorney at Sherman Silverstein who has litigated on behalf of high-profile sports figures, is one of them. “It is appalling that a university,” Milstein tells SI.com, “would not understand that due process is not a privilege and is not just a fundamental right -- it is the best path to discovering the truth.“



The lack of legal protections for Winston provides him an incentive to try to delay a hearing or drop out of school. “It would be a kangaroo court proceeding,” George Mason University law professor Todd Zywicki predicts in an interview with SI.com, “Winston would be ill-advised to take his chances with that.” Zywicki adds, “The striking distinction here is that the state attorney, who has to make his case in a real court, obviously doesn't believe there is enough evidence to go forward.”

11 reasons why Winston should be reluctant to participate in the hearing

1. Winston’s attorney would be barred from speaking at the hearing



Cornwell and other members of Winston's legal team would be able to attend the hearing, and Winston could confer with them. The attorneys, however, would be barred from speaking on Winston’s behalf, just as attorneys for Winston’s accuser would be barred from speaking on her behalf. The only way the attorneys could speak is if expressly authorized to do so by the hearing body. This is a serious limitation and a striking difference from a trial or even a private mediation. Attorneys are retained to speak on behalf of clients because they can more effectively advocate for their client’s interests. Even when attorneys become parties in a case they normally hire attorneys to represent them. Attorneys are knowledgeable about a particular area of law and are not emotionally attached to the case.



Winston is 20 years old, has no formal legal training and is at least two years from earning a college degree. It seems unlikely that he would morph into a skilled advocate, particularly at his own hearing. He would also need a fast tutorial on how to raise questions about evidence and witness statements, which are complicated topics covered over three years of law school and on the bar exam. Granted, his accuser would face the same predicament, but only Winston would be facing charges.

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2. Winston would have no right to confront his accuser or to confront other implicating witnesses, yet his accuser could question him

Perhaps most troubling from Winston’s perspective, he would have no ability to cross-examine his accuser. This means that any potential inconsistencies in the accuser’s account, or other aspects of her life that might be fair game if she were on the witness stand, could not be raised through questioning. Such a limitation is of great concern to Cornwell, who earlier this week told SI’s Pete Thamel, “We want all of her prior statements. We don’t want to give her the opportunity to adjust her story and not impeach her with her prior statements.” In a trial, the ability to confront an accusing witness is a hallmark of the U.S. justice system as it helps to ensure the truthfulness of an accusation.



While a university disciplinary hearing is not a trial in the traditional sense, it must still comport with due process. Daniel Wallach, an appellate attorney with Becker & Poliakoff in Fort Lauderdale, explains that, “even in the context of school disciplinary proceedings, the opportunity to confront one’s accusers and cross-examine them is an essential part of the due process requirement.” Wallach says that “a Florida court would be more likely to enjoin these proceedings if it believed that basic due process protections were lacking.”



Winston’s accuser, however, would have the right to question him and to present evidence against him under the code’s rules. She could also submit an impact statement in which she details how the alleged sexual assault has damaged her life. While Winston would enjoy his Fifth Amendment right to not incriminate himself and could thus refuse to answer his accuser’s questions, the hearing body could interpret his reticence as acknowledging fault.



Like in a civil trial, Winston’s accuser would not need to appear at the hearing. She could instead instead provide a written statement and submit other materials. Alternatively, under the code’s rules, she could appear and testify in a separate room.



3. Winston would likely have no right to introduce evidence of his accuser’s past sexual behavior

In media interviews, Cornwell has portrayed Winston’s accuser as engaging in various sexual acts. The intended implication of such commentary is likely to convince the public that the accuser is promiscuous. Whether there is any truth or relevance to such characterization would likely fall outside the scope of the hearing. According to the code, in cases involving sexual misconduct, the accuser has the right to have her past behavior and sexual history excluded from the hearing. Sexual history is only admissible if the hearing body -- in this case a former Florida Supreme Court justice -- concludes her history is necessary “to protect fundamental due process.”



4. Winston would not be protected by formal rules of evidence and “outside evidence” could be used against him



A crucial difference between a disciplinary hearing and a trial is admissible and inadmissible evidence. In trials, there are complex and restrictive rules on the kinds of evidence that can be introduced. Just read through the Federal Rules of Evidence, a notoriously difficult topic in law. Rules of evidence are complicated because they are designed to prevent untrue, unreliable or irrelevant evidence from being used to find guilt or fault. The idea is that those types of evidence are fundamentally unfair and jeopardize a fair trial.



Winston’s hearing would not employ those rules of evidence. The Florida State code makes unequivocally clear, “the formal rules of evidence do not apply to Student Conduct Code proceedings.” This means that statements about Winston’s character, or hearsay statements (statements made by people who do not testify at trial) would be admissible in the hearing even though in a trial they would likely be inadmissible.



Worse yet for Winston, the code authorizes the hearing body to rely on so-called “outside evidence,” meaning material that is not introduced in the hearing. Outside evidence could include Winston’s assorted off-field problems, such as stealing crab legs, yelling sexually explicit profanities and other allegations easily found through a basic Internet search. In a trial, this type of “outside” information would normally be ruled inadmissible on grounds that it is irrelevant or prejudicial.



Even worse for Winston, the hearing body could also rely on evidence obtained in the separate disciplinary proceeding against Winston’s former roommate, Chris Casher, who was found guilty of violating the student code for his role in the alleged rape. In a trial, prosecutors would face an uphill legal battle to introduce this evidence. But in a university disciplinary hearing, the code provides that “[i]n cases involving multiple students charged, information provided at one hearing may be used as evidence in the related case.” This creates a quandary for the hearing body, according to Wallach. He explains that “if the roommate was found guilty for his role in the same incident, any finding that Winston was not responsible would be an inconsistent result.” Thus, Wallach maintains, “the fact that Winston’s former roommate was found guilty for his role in the same incident increases the likelihood that Winston will also be found guilty.”



5. Unsworn witness statements against Winston would be given the same weight as live testimony

In a trial, statements by witnesses are normally admissible only when they are made under oath. The logic is that before a court relies on a statement, the court wants assurance the witness making it had sufficient reason to be truthful, and the threat of perjury criminal charges usually does the trick. Even when those statements are admissible, they are normally accorded less weight.



In an FSU disciplinary hearing, however, witnesses could accuse Winston through statements not made under oath, and those statements are accorded the same value as a person appearing at the hearing. This opens the door for individuals to accuse Winston but not make those accusations under oath or in person.



6. Preponderance of the evidence standard

In a criminal prosecution, a jury normally needs to believe, beyond a reasonable doubt, that the defendant is guilty. Unless jurors are close to 100 percent confident of the defendant’s guilt, they are expected to acquit the defendant. Should Winston have a hearing, the standard of proof would be much lower and in line with the standard in civil cases: preponderance of the evidence. This means that if the hearing body thinks it’s more likely than not that Winston is guilty -- even if the body is just 51 percent sure -- then Winston will be guilty. In close calls, preponderance of evidence becomes crucial.



7. Winston would have a weak right to an appeal



If Winston is found to have violated the code, he could appeal to a university appellate body. His appellate rights would be much narrower than they would before a Florida court. Winston would be required to “clearly” show that “a fundamental due process error” occurred in the disciplinary hearing. This essentially means Winston would need to offer an overwhelming finding that the hearing body permitted a violation of Winston’s due process rights. Given that the hearing body would be a former Florida Supreme Court justice, it would put the university appellate body in an awkward position to find a former justice -- presumably much more knowledgeable about application of the law than any college administrator -- made a mistake.



8. There is uncertainty over who would hear an appeal



Under the code, the identity of the appellate hearing officer or panel depends on the hearing body that made the decision. The code identifies seven categories of potential appellate hearing officers, but none deals with the unique situation here: a hearing body consisting of an individual who is not affiliated with FSU. This presents another legal uncertainty for Winston. In a trial, he would already know the identity of the appellate court and could develop a legal strategy with it in mind. In a university disciplinary hearing, he would not know the identity of the appellate body until after the hearing.



9. If Winston “wins” the hearing, his accuser could appeal and invite new witnesses to testify



Unlike a criminal case, where the prosecution cannot appeal a jury finding a defendant not guilty due to “double jeopardy” protection in the Constitution, the accuser of Winston could appeal a finding that he did not break rules. FSU’s code dictates that in cases involving sexual conduct, “both the charged student and the complainant have the right to appeal.” An appeal by either Winston or the accuser would also permit either to call on witnesses who did not testify at the disciplinary hearing. In an appeal before a court, new witnesses and evidence are barred.



10. Winning the appeal does not necessarily change a penalty



Under the code, the appellate hearing officer can only recommend a change to a finding. He or she lacks the authority to reverse or otherwise modify a finding. The recommendation is made to the university’s Vice President or a designee, and only that person has the ability to affirm, modify, or reverse the recommended penalty, or to order a new disciplinary hearing.



11. Hearing records would be both recorded and “discoverable” for any future prosecution or lawsuit against Winston



Winston’s hearing and appeal would be audio recorded, thus creating a valuable piece of evidence should Winston face criminal charges or, more likely, face a lawsuit brought by his accuser. These records could be subpoenaed, although the code cautions that any release of student records, “will be governed by applicable federal and state laws regarding the privacy of education records.”



FSU possessing the records is also significant given that it could become a co-defendant of Winston in a lawsuit brought by the accuser. In that scenario, FSU may want to pin legal blame on Winston, and hearing records might prove helpful in that regard.

Winston could negotiate a settlement with FSU or file an injunction

As Cornwell and FSU negotiate, they could strike a deal that avoids a hearing. Hypothetically, Winston might admit fault to a lesser charge and receive a modest penalty, such as 25 hours of community service and sitting out a game or two. Winston would avoid any fact-finding that could later be used against him and the penalty would allow him to complete the season. FSU could assure the public it succeeded in obtaining an admission of fault by Winston. To be sure, a deal of this type would attract widespread criticism as advancing the narrative that FSU protects its football players. Winston’s accuser might also object to such a deal and it would provide her greater motivation to sue FSU.

If there is no negotiated settlement and if FSU proceeds with a hearing, Cornwell could petition a judge for an injunction to stop or delay a hearing. As explained in a previous article, Winston’s odds for obtaining an injunction would be low. But some legal experts believe there is a path for obtaining an injunction. Wallach, for instance, notes that Winston could argue that FSU is utilizing an “unconventional process” that is not in accordance with its own code of conduct. This would be key to any court action by Winston. As Wallach explains, “one of the obstacles that Winston faces in obtaining an injunction is persuading a court that judicial power can be exercised. Courts are ordinarily reluctant to review administrative proceedings until they have concluded. However, an exception exists where the proceedings are not conducted in accordance with the organization’s own rules.” Because FSU is deviating from its own code, Wallach believes that a Florida court “would give serious consideration to granting an injunction, especially considering the other procedural irregularities that exist here, such as the inability of Winston to cross-examine the accuser and other witnesses.”



John Banzhaf III, a professor of public interest law at George Washington University Law School, similarly suggests Winston has a credible argument for an injunction. “Winston should rely heavily upon the U.S. Supreme Court’s decision in Mathews v. Eldridge,” Banzhaff says, “That case held that before the government can extinguish a liberty or a property interest -- of the type clearly at risk for Winston -- it must provide him due process. More importantly, the case established a cost-benefit test to determine which procedural protections -- for example, right to cross examine witnesses, to have an attorney present -- must be included.” Banzhaff emphasizes that the type of accusation against Winston necessitates he be able to confront his accuser: “Since most campus date rape cases hinge almost entirely on the testimony of the complainant, the right to test her claims through cross-examination is of paramount importance, and the burden on the university of permitting it is very small.”



Banzhaf, who recently petitioned the Federal Communications Commission to revoke radio licenses for use of the Redskins name, is skeptical Florida State is providing Winston with these vital procedural protections. “It appears,” Banzhaf says, “that Florida State is not providing many of the procedural protections which would be required under this test.”



Michael McCann is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He is also the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law.