Winston code of conduct hearing concludes first day

Published Dec. 2, 2014 5:25 p.m. ET

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TALLAHASSEE, Fla. — Heisman Trophy winner Jaimes Winston, accused of rape nearly two years ago, spent several hours behind closed doors Tuesday in a hearing that could impact how much longer he plays at Florida State University.

The twice-delayed hearing, being conducted by a retired Florida Supreme Court justice at a research building far from Florida State’s main campus, was aimed at determining whether Winston committed either sexual misconduct or endangerment under the school’s student code of conduct during what his attorneys have contended was a consensual sexual encounter early the morning of Dec. 7, 2012.

Winston emerged from the hearing a few minutes before 5 p.m. and said nothing as he was trailed to a waiting car by a throng of reporters and photographers.

“Today went, basically, as we expected,” the player’s attorney, David Cornwell, said as he was getting into a car. “And we think this nightmare will be over very soon.”

On the other side of the building, the woman slipped out a side door and into a waiting car while one of her lawyers was talking to reporters.

“For our client it’s a very empowering day, it’s a very important day,” said the lawyer, John Clune, who was brought into the case in February. “I mean, you have the Heisman Trophy winner on trial for rape today. I think that seeing where things have come over the past 10 months was kind of an emotional moment for her and having to recount some of what happened to her was difficult but empowering at the same time.”

Winston was not charged with a crime, but a code-of-conduct hearing is a very different procedure with a lower threshold of proof than exists in criminal courts and an unusual format. For instance, although the woman was in a different room and connected to the main hearing by a telephone, she had the right to question Winston and he had the same right to question her.

Winston could be expelled from school if the judge, Major Harding, determines that he violated the rules of student conduct.

And though either side would have the right to appeal any ruling, Tallahassee attorney Chuck Hobbs said he expects swift action from the school if the judge rules against Winston.

“My instincts would tell me that due to the public relations aspect of this, not just this case but all the other cases that have taken place that have shed light on the issue of violence toward women, my gut would tell that if there were a recommendation from Justice Harding for suspension or expulsion, that the school would immediately go ahead and try to expel him,” said Hobbs, who has handled dozens of code-of-conduct cases. “Because I know as much as they have love and respect for Jameis Winston, at the same time it's the Florida State brand that has been here long before Jameis Winston made it to Tallahassee and will be here long after he's gone, and they would have to protect that.”

Florida State is ranked No. 4 in the race for one of four spots in the college football playoff, which begins Jan. 1 and concludes with the national championship game Jan. 12.

Football practice, originally scheduled for 3:45 p.m. Eastern, was pushed back nearly three hours.

Among those who appeared at the hearing were two of Winston’s Florida State teammates, defensive end Chris Casher and defensive back Ronald Darby, who signed sworn statements saying they had watched a portion of the sexual encounter and that it appeared to be consensual.

They left the hearing through a side door at Florida State’s Materials Research building, ignored questions from reporters, and were whisked away in a black sport-utility vehicle.

Justice Harding agreed to conduct the hearing at the request of Florida State administrators. A ruling is expected later in December.

Even as the investigation of Winston has been under way, Florida State itself has been the subject of an ongoing federal investigation into its handling of the allegation against the quarterback, who has the 12-0 Seminoles headed to Saturday’s Atlantic Coast Conference championship game. That investigation is being conducted under the gender equity law known as Title IX, which requires colleges and universities that receive federal money to promptly investigate allegations of sexual assault.

Harding was brought in as an independent, outside arbiter in the highly charged case.

The incident at the center of the case occurred at Winston’s off-campus apartment early the morning of Dec. 7, 2012, and which his attorneys have asserted was a consensual sexual encounter.

The rape allegation was investigated and then shelved by Tallahassee police in early 2013 amid assertions that the woman was uncooperative — something her attorneys have disputed. State Attorney Willie Meggs revived the case in November 2013 after his office learned of the woman’s allegations, and his investigation was carried out as Winston was marching the Seminoles to an undefeated season and the team’s first national championship since 1999. Along the way, he won the Heisman.

By then, Meggs had concluded that there was not enough evidence to file criminal charges.

Title IX, however, requires that schools investigate alleged sexual assaults irrespective of whether criminal charges are filed, and that led school administrators to attempt to interview Winston last January and then to interview the woman in August. Following that investigation, school administrators notified Winston in October that he faces four potential violations of the Florida State student code of conduct:

• Sexual misconduct — defined as “any sexual act that occurs without the consent of the victim, or that occurs when the victim is unable to give consent.”

• Sexual misconduct — defined as “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.”

• Endangerment – defined as “physical violence towards another person or group.”

• Endangerment — defined as “action(s) that endanger the health, safety, or well-being of another person or group.”

Both Winston and the woman are allowed to have one adviser present during the hearing. While each would be allowed to consult the adviser, they, not their lawyers, will have to answer any questions they choose to. Either has the right not to answer questions at the hearing.

Harding also is expected to consider the voluminous documents associated with the incident — hundreds of pages of reports generated by Tallahassee police and the state attorney in their investigations as well as other records.

Harding’s ultimate decision will rest on a standard that is much lower than that used in criminal courts: “preponderance of evidence.” That burden is generally described as enough evidence to tip the balance one way or another — to determine that it is more or less likely, in this instance, that sexual misconduct or endangerment occurred.

Casher and Darby, Winston’s teammates, played key roles in the decision by Meggs not to file charges. The two players signed sworn affidavits in which they said they watched a portion of the sexual encounter and that it appeared to be consensual. Casher additionally told investigators that he filmed a portion of the encounter on his cell phone but later erased the images.

Both were charged with violations of Florida State’s student conduct code, but only Casher was found to have broken rules. He was placed on disciplinary probation for one year.

Winston and the woman have the right to appeal any decision made by Harding.

For Winston, the prospect of a hearing poses problems on multiple fronts. In addition to the fact that Harding would be bound by a lower standard of proof than is used in criminal courts, testimony and evidence from the hearing could be used to revive the criminal case.

The statute of limitations for sexual assault is five years, meaning that criminal charges still could be filed. And Meggs has said that he would consider reopening the case if significant new information came to light.

Next Sunday would mark two years since the alleged assault.

That evening began when the woman and several friends went to Potbelly’s, a popular Tallahassee night spot. She later told investigators that she consumed several drinks and that someone she did not know bought her a shot.

After drinking that shot, the woman told police, she ended up in a cab with three men and found herself at an apartment, where she said she was raped — first in a bedroom and then in a bathroom. After the incident, the woman said her attacker put her on a scooter and drove her back to the Florida State campus.

She called a friend, then the campus police department. Florida State officers concluded the assault occurred off-campus and turned the case over to Tallahassee police.

The woman told officers she did not know her attacker.

A little more than a month later, after the spring term began at Florida State, the woman called police and said she’d seen her assailant in a class and listened for his name when the professor called roll. She gave the detective Winston’s name.

At that point, Winston was a highly prized two-sport recruit, but he had yet to throw a football or baseball in competition for Florida State.

The initial investigation was fraught with problems: Detectives failed to visit Potbelly’s to examine surveillance camera footage, did not attempt to identify others who were at the bar despite the woman identifying one person there as a freshman football player named “Chris,” and had no luck finding the cab driver who gave the woman a ride.

Tallahassee police closed the investigation, contending the woman was uncooperative — an assertion her attorneys repeatedly have challenged.

In November 2013, after a reporter asked about the case, Tallahassee police turned reports in the case over to Florida State’s campus police chief, who in turn forwarded them to a senior official in the athletic department. Four days later, Tallahassee police notified Meggs’ office of the existence of the case, and he launched a new investigation.

Laboratory tests found Winston’s DNA on the woman’s clothing.

In the end, Meggs concluded the evidence was not strong enough to support criminal charges. He based that decision, in part, on problems presented by gaps in the woman’s memory. Meggs said he believed it was possible the woman had been slipped a so-called “date rape” drug, perhaps in the shot. But a blood test administered roughly six hours after the alleged assault failed to identify the presence of any drugs, although such substances can be hard to detect even a few hours after they are ingested.

That test did show that the woman had a blood-alcohol level of .048, more than twice the level at which a motorist under age 21 can lose his or her driver’s license in Florida.

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