The Tallahassee Police, State Attorney's office and now, a retired Chief Justice of the Florida Supreme Court have reviewed the evidence against Jameis Winston. They all reached the same conclusion: it does not support an allegation of rape.
"Winston's best legal move may be to drop out of Florida State," the early October Sports Illustrated headline read after details about how the process of a Florida State Code of Conduct Hearing would work. A tribunal without the due process protections of a court, but from which testimony could be used in a court, is a scary one indeed for anyone accused of a serious crime, as Michael McCann laid out in that piece.
David Cornwell, Jameis Winston's attorney, complained about the fairness of the process. And many wondered, if either by way of McCann's suggestion or some sort of delay, whether the hearing would ever happen at all. Attorneys are unable to represent their clients in the setting, so asking a college student to represent himself is risky indeed.
And yet, Winston did not drop out. His attorney did not file an injunction. The hearing was delayed by a few days after a request for time to review and prepare more than 1,000 pages of evidence, but Winston went through with the process and faced the accusations.
He did so with the confidence in the evidence that had twice led to the determination that Winston should not be charged or held responsible for a heinous crime.
It's the evidence gathered and reviewed by the Tallahassee Police Department that resulted in Winston not being arrested because it doesn't support the allegation of rape.
The same evidence, reviewed, checked and supplemented by the State Attorney's office, produced the same result -- no charge.
Some national media types want to discuss the case as if the investigation had been completely botched, precluding any true judgment of guilt or innocence. That has not been proved. To be sure, some elements could have been better investigated. And some of those (like text messages and long since deleted social media) might have been even more exculpatory for Winston than the record gathered, as Perry Kostidakis noted.
There was no evidence that a sexual assault had occurred, and there would not be much more even if the Tallahassee Police Department had acted as they should have. We would have determined the exact way that Winston, Ronald Darby, Chris Casher and the accuser left Potbelly's that night by managing to get videotape from the bar, but that might just about be it. Winston was done a disservice by their blunders, not aided by them. The rest of the case contradicts the accuser's story (which has changed multiple times), and whether that's a result of her mistakes or her lawyer's is not something we can determine.
But in reviewing the near 200 pages of reports from TPD and the SAO, it's easy to see that the strongest and most important pieces of evidence -- the physical evidence, including the rape kit (results could have been from consensual sex or assault), the toxicology (no drugs in system) and blood alcohol (0.04) tests and physical examinations (no note of any head trauma) -- were not botched in any way, and in fact were done in a very timely manner. It's very important to note that this evidence is often unfortunately not available in sexual assault investigations.
There has never been any question as to the physical evidence, and that evidence is some of the strongest backing Winston's account of the encounter.
That's to say nothing of the inconsistent and contradictory statements given by Winston's accuser, which given the lab reports could not be claimed to be the result of alcohol or drugs.
"I did not find her to be a witness that we believed we could put on the stand and count on her to prove the elements of a crime," State Attorney Willie Meggs told ESPN in December 2013 after electing not to charge Winston, noting that the accuser's memory lapses were especially problematic given that the accuser's blood alcohol level was only 0.04 and toxicology reports revealed she was not drugged.
And then there are the two witnesses who provided statements that the sexual encounter was consensual.
Hearing result shows strength of evidence
All of that evidence would be extremely strong in a legal setting. But a Code of Conduct hearing has a much lower bar: a preponderance of the evidence standard, meaning that the accused would be found responsible for if there was a 51 percent chance (more likely than not) that the accusation was true.
And in relying upon it to find Jameis Winston not guilty of any of the four CoC charges against him, Major Harding, the former Chief Justice of the Florida Supreme Court, a distinguished jurist and third-party neutral brought in to remove any appearance of impropriety, showed just how strong and persuasive that evidence is.
The evidence must show that it is more probable than not that you are responsible for the charged violations. After a thorough review, the evidence before me does not satisfy this threshold and, therefore, you are not responsible for the aforementioned charged violations. -- Justice Harding, December 21 ruling in Code of Conduct Hearing.
This is a major statement, one that likely won't be fully appreciated my many -- especially those who made up their minds long ago. But it is clearly stating that 1,000 pages of evidence shows the allegation against Winston cannot be sustained at even the easiest possible standard -- preponderance of the evidence.
This isn't "there's not enough for a criminal charge," but rather "there isn't even enough to claim that you more likely than not are responsible for these charges."
Harding's ruling may be very helpful to Winston in the long term. Many are simply not going to read 200 pages (40,000 words) of reports from the TPD and the SAO. But they might be inclined to read Hardings's decision, which is a mere 2,000 words (see below).
In it, Harding repeatedly references the physical evidence, including the rape kit, the BAC and toxicology tests, the physical examination, the lab reports, etc., all of which range from neutral, to explicitly supporting Winston's version of events.
And he also notes the inconsistency in the story, stating, "the accuser's statements concerning the night's events have changed over time," such as the newly asserted claims that the accuser did not leave the bar and get into the cab of her own volition, that Winston gave her a shot at the bar, etc.
You can read it in full, below.
"OK, back to football" -- Not so fast
So, back to football? For Winston, yes. In a perfect world, however, some in the media should take a look at what this decision really means.
Given the incredible amount of coverage dedicated to the Jameis Winston saga, it is premature for many in the national media to have a stance of "OK, back to football."
Or worse yet, stating that there will never be a resolution because of the handling of the case by TPD and FSU.
That sweeping language is lazy. And has the effect of dismissing the mountain of properly and timely collected exculpatory physical evidence that has thrice (four times if you refer to the CoC hearings of teammates Chris Casher and Ronald Darby) resulted in conclusions like "the evidence cannot sustain the charge at trial" or "I find that the evidence before me is insufficient to satisfy the burden of proof."
This decision, by the former Justice of the Supreme Court of Florida, is tantamount to a judgment that Winston did not commit the vicious act of which he was accused. Further, him being found not responsible for all four CoC charges, given the incredibly low standard of proof, supports the State Attorney's decision not to charge him criminally.
The evidence against Jameis Winston was not enough to warrant an arrest or charge. It wasn't even enough to warrant responsibility for Code of Conduct charges evaluated by an incredibly easy burden of proof.
Those who continue to insinuate that Winston is a rapist, or who would rather defer to the facts that claims of rape are very rarely fabricated rather than considering the actual facts of this individual matter, are holding a baseless opinion.
Winston will move on to football this week, for the first time in more than a year without any sort of potential disciplinary proceeding hanging over his head. Some in the national media, however, might be well served to devote a day to what this ruling says about the allegation against Winston before turning their focus back to football.
Lawsuit?
Winston's attorney has long maintained that this process has mostly been about cashing in on a lawsuit. The accuser's attorneys have scoffed at that notion and Sunday said that they were contemplating an appeal, but believed that "FSU is never going to hold Jameis Winston responsible."
Monday, Winston's attorney said that if Winston is sued by his accuser, that they intend to counterclaim, both against the accuser, and her attorneys for statements they have made.
Full decision
The following is the letter of Harding's ruling.
Mr. Winston:
I, Major B. Harding, have been appointed to sit as the hearing body in your student conduct case. You have been charged with the following four violations of section 6C2R-3.004(1 )(e) of the Florida State University Student Conduct Code:
I. Sexual Misconduct.
a. Any sexual act that occurs without the consent of the victim, or that occurs when the victim is unable to give consent. Consent is defined as the willing and clear participation in the sexual act. Inability to give consent includes but is not limited to situations where the individual is:
i. under the influence of alcohol, drugs or other substances (including but not limited to prescribed medications); ii. unconscious, asleep, ill or in shock; iii. under the age of eighteen and therefore legally incapable of giving consent; or
iv. known by reason of impairment, mental condition or developmental or physical disability to be reasonably unable to give consent.
Consent is not freely given if no clear verbal consent is given; if the individual is not able to give consent or if consent is achieved through force, threat of force, or coercion. Consent to one form of sexual activity does not imply consent to other forms of sexual activity. Consent is not the lack of resistance; there is no duty to fight in order to indicate lack of consent. Consent can be withdrawn at any time, as long as the withdrawal is clearly communicated by the person withdrawing consent through words or actions.
c. Conduct of a sexual nature that creates an intimidating, hostile, or offensive environment for another person. This includes unwanted, unwelcome, inappropriate, or irrelevant sexual or gender-based behaviors, actions or comments.
2. Endangerment.
a. Physical violence towards another person or group.
b. Action(s) that endanger the health, safety, or well-being of another person or group.
The burden of proof in all cases under the Code is the preponderance of the evidence and rests with the University. Stated another way, the evidence must show that it is more probable than not that you are responsible for the charged violations. After a thorough review, the evidence before me does not satisfy this threshold and, therefore, you are not responsible for the aforementioned charged violations.Evidence Considered
The investigative hearing materials consisted of over 1,000 pages of documents as well as electronically stored data. In addition, substantial training materials were provided, and I have reviewed the same. The parties were each afforded the opportunity to supplement the record and availed themselves of such an opportunity. In making my determination, I reviewed and considered the investigative healing materials; the supplemental materials submitted by the parties; witness testimony received at the hearing; and exhibits 1-5, 9, and 10 admitted without objection at the hearing. My determination is based solely on this evidence.
Advisor for (accuser) objected to the admission of proposed exhibits 6, 7, and 8 on the basis that they were not timely submitted prior to the hearing. I deferred ruling, and the exhibits were numbered for reference at that time. The parties were given deadlines by which to submit supplemental materials. You and your advisor were aware of this deadline and timely submitted other supplemental materials, but proposed exhibits 6, 7, and 8 were not submitted. As such, these proposed exhibits were permitted to be used as demonstrative aids at the hearing but are not admitted into evidence. I have not considered them. Regardless, proposed exhibits 6, 7, and 8 to be relevant to the narrow issues before me, and their admission would have had no bearing on my determination.
Findings and Application of Fact
It is undisputed that you and (accuser) had sexual intercourse in the late evening and/or early moming (sic) hours of December 6 and 7, 2012, respectively. The focal point, however, is whether that and/or other sexual activity was consensual; whether you engaged in sexual conduct that created an intimidating, hostile, or offensive environment; or whether you engaged in physical violence or other conduct which endangered another person.
The Code defines consent "as the willing and clear participation in the sexual act." The Code elsewhere states that "(clonsent is not freely given if no clear verbal consent is given." Historically, in student conduct cases where consent is disputed, consent has been considered in light of all of the circumstances, verbal and nonverbal. This is a reasonable interpretation and application of the Code.
The sequence of events began at Potbelly's on the evening of December 6, 2012. During the course of the evening, (accuser) met and gave her phone number to one of your acquaintances, Mr. Casher. You testified that you subsequently danced with (accuser) for a period of time. Mr. Jordan stated that he saw her dancing with a black male.
As closing time approached, (accuser) was with her friend Ms. Kessler. Ms. Kessler testified that (accuser) received a text message from a number not saved in her contacts, presumably a new number, asking her to meet them outside. (accuser) showed the text message to Ms. Kessler. Ms. Kessler indicated to (accuser) that she could go if she wanted, and (accuser) left.
You likewise testified, albeit after having ample time to review the previous statements of Ms. Kessler and (accuser), that you texted (accuser), and she came outside to meet you. (accuser) denied knowledge of the text message, and no such text message could be found. Investigator Newlin testified, however, that the inability to find the text message did not preclude its existence and that there were several issues which could have prevented its retrieval.You, Mr. Casher, and Mr. Darby each stated that (accuser) voluntarily got into a cab with you to leave Potbelly's. The evidence further shows that the area outside of Potbelly's, where (accuser) met you and got into the cab, was active with other students, bar security, and cabs at that time. (accuser) testified that while she did not physically resist or seek help her conduct was not voluntary because she was intimidated and/or scared of the consequences of not cooperating and getting in the cab. (accuser) provided the same response as to why she did not seek help from the cab driver or physically resist or seek help when leaving the cab.
(Accuser)'s beliefs and mental state could have affected her decision making. Further, (accuser) did not identify any evidence that you acted in a manner that would reasonably justify her developing such beliefs. The evidence is undisputed that people were present, but (accuser) did not seek help. This lack of evidence, among other things, is relevant to the charged violations of physical violence and endangerment.
(Accuser)'s statements concerning the night's events have changed over time, but one point on which she has remained steadfast is that once in your room that you had sexual intercourse with her and that she did not consent to or actively participate in the sexual intercourse. (accuser) stated that she told you no and/or to stop and that Mr. Darby, who she identified by his dreadlocks, came into the room and told to you stop as well. She stated that you subsequently carried her into your bathroom, locked the door, and proceeded to continue sexual intercourse against her will. (Accuser) stated that she continued to plea for you to stop when in the bathroom and that she tried to resist you at this point but that you pinned her down.
You, however, vehemently contradict (accuser)'s recitation of the night's events. You testified that once in your room that you and (accuser) engaged in foreplay and that you asked for, and (accuser) willingly performed, oral sex on you. You further testified that you retrieved a condom, that (accuser) assisted you in putting on the condom, and that (accuser) was an active participant in the sexual intercourse that followed. You testified that (accuser)'s physical actions and statements during the sexual intercourse demonstrated its consensual nature and that she at no time told you no, told you to stop, or objectively demonstrated any objection.
You testified that Mr. Casher came into the room and that (accuser) told Mr. Casher no and to get out and/or leave, but that these statements were never directed at you. Mr. Casher admits that it was he, and not Mr. Darby, who entered your room, and Mr. Casher was found responsible for doing so at his own student conduct hearing. The statements of Mr. Casher and Mr. Darby, although based on brief observations, are consistent with your recitation of events. While the statements of Mr. Casher and Mr. Darby differed on certain points, their main observations have remained consistent.
You testified that (accuser), following Mr. Casher having entered the room and the door being pushed open, asked if there was somewhere more private. Namely, you indicated that (accuser) wanted to continue to have sexual intercourse with you, and that was the reason you both went into the bathroom where you continued to have sexual intercourse. Although Mr. Casher made a statement as to what he thought he heard, you and (accuser) are the only persons with personal knowledge as to what actually happened in the bathroom.
The medical exam and testimony of the SANE nurse, Ms. Walker, who performed (accuser)'s exam are inconclusive. Ms. Walker reported that (accuser) had vaginal tenderness and redness that could be consistent with either a sexual assault or consensual sexual intercourse. Likewise, the reported bruises, to the extent received on the night in question, are not necessarily inconsistent with the particular evidence of consensual sexual activity in this case.
It is undisputed that immediately after your sexual encounter with (accuser) that you gave (accuser) a ride home on your scooter at which time she had to hug and hang on to you. Later, (accuser)'s friends indicated that shortly thereafter and the following day that (accuser) was hesitant to be touched or hugged.
As summarized in the preceding paragraphs, the evidence regarding the events that unfolded between you and (accuser) once in your room is irreconcilable. In light of all of the circumstances, I do not find the credibility of one story substantially stronger than that of the other. Both have their own strengths and weaknesses. I cannot find with any confidence that the events as set forth by you, (accuser), or a particular combination thereof is more probable than not as required to find you responsible for a violation of the Code. Therein lies the determinative factor of my decision.
You and your advisor have asserted that (accuser) intentionally fabricated an elaborate lie, but I am not prepared to conclude as much. A person's mental state, whether it be the result of trauma, stress, anxiety, or the like, can affect the person's memory which can possibly improve with time. In fact, this is a matter addressed in the training of hearing bodies. This issue was also addressed by Ms. Walker and Ms. Chatfield, a victim's advocate who worked with (accuser). There is evidence that (accuser) was in such a state of mind following her encounter with you although I cannot conclude by a preponderance of the evidence that this encounter was nonconsensual and the sole basis for any such trauma.
Although there is much evidence regarding the amount of alcohol consumed by (accuser), whether and by whom (accuser) was given a shot, and whether (accuser) had been drugged, lab reports show that there were no known drugs in (accuser)'s system and that her blood alcohol level was within reason. Moreover, (accuser) stated that she was not intoxicated, and the consensus among witnesses was that (accuser), while having been drinking, was never at a level that impacted her decision-making abilities.
In closing, I have thoroughly reviewed and considered everything on the record before me and assigned it the relevance and weight I feel it deserved. Further, to the extent that objections were made to the hearing procedures on the record or in the hearing briefs, these matters have been preserved.
Conclusion
This was a complex case, and I worked hard to make sure both parties had a full and fair opportunity to present information. In sum, the preponderance of the evidence has not shown that you are responsible for any of the charged violations of the Code. Namely, I find that the evidence before me is insufficient to satisfy the burden of proof.
Sincerely,
Major B. Harding