Investigations of Sexual Assault on Campuses Create Challenges and Potential Liability for Schools

The New York Times brings a must read story for those concerned about crime on campus.

The article concerns allegations of rape by a Florida State Student against Jameis Winston, the Seminoles quarterback who would go on to win the Heisman Trophy.

The focus involves the manner in which this case was investigated by the University and the police.  The key idea:  “an examination by The New York Times has found that there was virtually no investigation at all, either by the police or the university.”

More details:

The police did not follow the obvious leads that would have quickly identified the suspect as well as witnesses, one of whom videotaped part of the sexual encounter. After the accuser identified Mr. Winston as her assailant, the police did not even attempt to interview him for nearly two weeks and never obtained his DNA.  The detective handling the case waited two months to write his first report and then prematurely suspended his inquiry without informing the accuser. By the time the prosecutor got the case, important evidence had disappeared, including the video of the sexual act.

The Winston case highlights a very significant issue in law enforcement and criminal defense:  how schools investigate and respond to allegations of sexual assault on campuses.  Under federal law, university administrators are required to promptly investigate allegations of sexual assault.   One of the main difficulties for universities is the need to balance the rights of the accused with the need to conduct a thorough investigation.

In Cincinnati, a former Xavier University basketball player has filed a lawsuit accusing the school of damaging his reputation in a rushed decision to expel him after what he says was a false rape accusation. Dez Wells was expelled from the school in 2012 after he was accused of rape by another student.  The case was later dropped at the grand jury stage.  Federal District Court Judge Spiegel refused to dismiss the claims against the university.

One approach followed by a number of schools has been to bring in outside investigators and attorneys with prosecutorial experience in high profile cases.

Domestic Violence: Case Comes Down to Credibility

An Ohio Appeals Court upheld  domestic violence conviction in a case where the defendant and the alleged victim told very different stories.

The case is State v. Thompkins, 2014-Ohio-1688.

The Defendant was accused of domestic violence for an incident involving the mother of his child.  The court upheld the charges even though the defendant and the woman were not living in the same household nor involved in a romantic relationship at the time of the incident.

The crime of domestic violence is found in defined in R.C. 2919.25(A):  “No person shall knowingly cause or attempt to cause physical harm to a family or household member.” A “family or household member” includes the parents of children.

The Defendant went to the woman’s home between 2:30 and 3:00 in the morning.  He pounded on the front door, and began yelling. When she answered the door, the defendant grabbed her by the throat, began choking her, and threw her to the ground.

The Defendant later admitted to an officer that he had pushed her.

The Defendant testified that he had a conversation with the woman for approximately 15-20 minutes, then left.  He claimed that the woman followed him out of the house and started yelling. She then grabbed him and attempted to hit him.  He stuck his hand out in an attempt to keep her away, which caused her to trip and fall over a rock.

The court accepted the testimony of the woman.  The court said that in this “he said, she said” case, the “case came down to the credibility of the witnesses.” The trier of fact, was in the best position to weigh the credibility of the witnesses, and could reasonably have found her testimony to be more credible.

Cincinnati Appeals Court: Probation Violation Can Lead to Prison Term

An Appeals Court in Cincinnati has held that a convicted felon who violates the terms and conditions of probation can be sent to prison without receiving a full explanation of all of his rights by the judge.

The case is State v. McAfee, 2014-Ohio-1639.

The Defendant was convicted in 2010 of cocaine possession.  He was placed on probation, known under Ohio law as “community control.”

Map of Ohio Appellate Districts

He violated the terms of his conditions of his probation in August 2011 and May 2013.  Each time, the judge told the defendant that if he violated again, he could face up to 12 months in prison.

In August 2013, the defendant again violated the terms and conditions of probation.  This time, the judge sent him to the state prison.

He argued that his due process rights were violated because he was never informed how he had violated the conditions of community control.  The Appeals Court disagreed.  The court noted that he had been given a written report describing the violation.  He had also received court appointed counsel.

At the hearing on his community-control violation, the defendant was given the option to enter a drug-treatment program.  Later, the defendant told the court that he was “on the fence” about going to the program.  The judge  gave him the option of going into the drug-treatment program or serving 12 months in prison.  The Defendant did not give a direct answer, so the court said that his  “’hesitate[ion]”’in responding and his ‘wavering’ in committing to the program caused the court to decide the matter for him and to impose the 12- month prison term.”

The court noted that a full discussion of a defendant’s rights is not necessary by the court for a probation violation, as it is when a defendant pleads guilty.   The only requirement is that the trial court not believe that an admission to a violation is anything “other than knowing, voluntary, or intelligent, . . .”



Bengals Player Arrested (Again).

Orson Charles, a Bengals Player, was arrested in Kentucky on March 31, 2014.  News reports from ESPN and other sources suggest that Charles was stopped by Richmond police on Interstate 75.  Another driver had complained to the police that Charles had pointed a fun while driving down the highway.

From the Cincinnati Enquirer:

Bengals fullback Orson Charles was arrested in Madison County, Ky., late Monday charged with wanton endangerment-first degree, according to the jail.

Charles allegedly pulled a gun during a road rage incident.

Wanton endangerment in the first degree in Kentucky is defined as when, under circumstances manifesting extreme indifference to the value of human life, someone wantonly engages in conduct which creates a substantial danger of death or serious physical injury to another.

According to the NFL arrests database, this marks the seventh arrest of a Bengals player since 2012.

MKA Obtains a Reversal of a Felony Conviction in the Court of Appeals

An Ohio Court of Appeals has reversed a domestic violence felony conviction for a woman in Greene County.  Michael K. Allen & Associates represented the defendant.

The case is available to read here:  State v. Zumwalde,  2014-ohio-1285

In January, 2013, the defendant was arrested on a charge of domestic violence after an incident with her husband. She did not dispute that her conduct constituted the offense of domestic violence, but she challenged whether the State could prove that this was a felony offense. In Ohio, a second or subsequent offense of domestic violence is a felony. A first offense is a misdemeanor.

The Defendant had a prior conviction for attempted assault, but the indictment did not identify the victim of her previous conviction for attempted assault as a family or household member. The court said that she could not have been convicted of a felony:

Upon review, we conclude that by pleading no contest to “domestic violence,” as charged in the indictment, Zumwalde essentially admitted to nothing more than a misdemeanor of the first degree absent the essential element that the prior conviction involved a family or household member. Although the indictment charges Zumwalde with having previously been convicted of Attempted Assault, it does not charge that the offense resulting in that conviction involved a victim who was a family or household member at the time of the offense; therefore, the allegations set forth in the indictment in the case before us state, at most, a misdemeanor offense.

Dayton Traffic Cameras Case Coverage and Videos

The media covered the Dayton Traffic Cameras class action case pretty closely.

The Cincinnati Enquirer discusses prior traffic camera cases brought by Michael K. Allen & Associates:

Allen’s Downtown Cincinnati law firm, Michael K. Allen & Associates, sued and stopped at least two local villages from using speed cameras to ticket motorists and generate revenue: Elmwood Place in Hamilton County and New Miami in Butler County.

In the Elmwood Place case, a Hamilton County Common Pleas Court judge last year ruled the village’s three speed cameras that began operating in 2012 were illegal and ordered the village to shut them down.

Judge Robert Ruehlman called the cameras a money grab, describing them as “a scam motorists can’t win” and “a game of three-card Monte.”

* * * In the New Miami case, a Butler County Common Pleas Court judge recently ruled the village ignored “the basic tenants of procedural law” by enacting a similar system that was “strongly skewed in (New Miami’s) favor.”

The Dayton suit marks the first time Allen’s law firm has filed suit against a municipality for using red light cameras.

Mike Allens discussed the case on Fox19:
Cincinnati News, FOX19-WXIX TV

[Read more...]

Dayton Traffic Cameras Complaint Now Available

The complaint filed in Montgomery County Common Pleas Court challenging the Dayton traffic cameras is now available.

Read it here:  Dayton Traffic Cameras Complaint

Mike Allen on WLW Discussing Class Action Lawsuit Against Dayton Traffic Cameras

Mike Allen spoke with Scott Sloan about the new lawsuit against speed and red light cameras in Dayton.

Press Conference Scheduled on New Dayton Traffic Camera Class Action Lawsuit

Michael K. Allen will hold a press conference to discuss the new class action lawsuit filed against the City of Dayton’s Traffic Cameras.


Tuesday March 25, 2014 – 2:00pm

Office of Michael K. Allen & Associates

5181 Natorp Blvd, Mason, OH 45040

According to the lawsuit, Dayton’s ordinance is unenforceable because it “fails to provide adequate due process to vehicle owners as guaranteed by the Ohio Constitution,” and because it unconstitutionally divests the Dayton Municipal Court of jurisdiction.

The Dayton automatic traffic enforcement system improperly relies on evidence generated by RedFlex, an Arizona Corporation. Motorists who receive a notice of liability can challenge the ticket in a hearing, but are unable to bring in witnesses, obtain discovery, or otherwise receive documents that might show that the system was not operating correctly.

Allen Photo

Judges in Hamilton and Butler counties have found that similar systems violated the due process rights of motorists. In a case brought by Allen against the Village of Elmwood Place, Hamilton County Common Pleas Court Judge Robert Ruehlman wrote that a similar hearing system was “nothing more than a high-tech game of 3 CARD MONTY. It is a scam the motorists can’t win.” Similarly, in a case brought by Allen against the Village of New Miami, Judge Michael Sage found that a civil administrative hearing system denied motorists due process rights because it ignored the “basic tenants of procedural law” and was “strongly skewed in [the Village’s] favor.”

The decision of a City to bypass a municipals court and establish a separate hearing system for automated traffic violations has also been found to violate the Ohio Constitution by two separate courts of appeals. That issue is presently before the Ohio Supreme Court, but a decision is not expected until the end of the year.

Michael K. Allen & Associates Files Class Action Lawsuit Against Traffic Cameras in Dayton


Breaking News:

Read the Full Press Release.

Michael K. Allen & Associates has filed a lawsuit on behalf of a handful of citizens against the city of Dayton, Ohio, challenging its use of traffic cameras. Today’s action follows other successful cases brought by the Firm against Elmwood Place in Hamilton County and New Miami in Butler County.  Motorists will ask a judge to throw out traffic tickets issued by Dayton’s automatic enforcement systems and refund their fines.   The Dayton lawsuit is joined by attorneys Tom Manning, of Dayton, and Paul DeMarco, of Cincinnati.

This action targets both speed cameras and red-light cameras run by Redflex Traffic Systems, the longest consistently operating company in photo enforcement with about 3,000 systems in 250 cities throughout the U.S. and Canada. Redflex shares ticket proceeds with the city of Dayton.

Michael Allen will provide additional information and be available for comment at a press conference at 2:00 at the Firm’s Mason Office. He stated, “Automatic traffic enforcement systems are often more about raising revenues for cash strapped municipalities than improving traffic safety. We are not saying that these devices can’t be a valuable law enforcement tool. We are saying that if the government wants to impose fines on citizens, it has an obligation to give the citizens a fair chance to defend themselves.”