Gibbons apparently not facing charges

Submitted by Cold War on

...

In the legal realm, though, Gibbons likely will not face further proceedings.

“We have not received a request for prosecution for anyone with this name,” Steve Hiller, Washtenaw County chief assistant prosecutor, said Wednesday.

The Washtenaw County prosecutors office does not conduct investigations. At the end of a police investigation, a request for prosecution can then be submitted to the office...

http://www.detroitnews.com/article/20140130/SPORTS0201/301300045/Former-Michigan-kicker-Brendan-Gibbons-apparently-not-facing-charges?odyssey=tab|topnews|text|Sports

 

sadeto

January 30th, 2014 at 9:36 AM ^

He wasn't prosecuted in 2009 because the complainant refused to cooperate. she could change her mind, the statute of limitations has not run out. Brendan has to sweat it out for ... depends on what the charge would be. No SOL for first degree CSC, then it drops to ten, and eventually to six years. He isn't completely out of the woods yet.

NYWolverine

January 30th, 2014 at 11:08 AM ^

If there's a preponderance of evidence suggesting BG's guilty WITHOUT even the first-person testimony from the young lady; then as a human being with a soul I'd hope she comes forward and demands prosecution. The current state of affairs and file of apparent evidence absolutely warrants it.

And so it completely sucks that this young woman is probably facing pressure and anxiety to simply protect basic human dignity; she's hesitant. She knows BG's best defense is to make her appear a certain way. Consensual. Meaning she'll be characterized as easy, loose, casual. That'll be her reputation to defend, written up in a legal docket.

There's a lesson of universal application to be learned from this that just never seems to stick. 18-22 year old men at their sexual peaks; most of whom will never again have such an abundance of testosterone. At the younger spectrum, male classmates biologically predisposed to acting on impulse. And male athletes with an addition of ego added to an even greater abundance of testosterone. 

 

Yeoman

January 30th, 2014 at 11:25 AM ^

Sort of a quibble but it might actually be relevant: it's not just the standard of proof that's different. All the University had to concern itself with was consent or the lack thereof. For a crime to have been committed there also has to be coercion or force. In a situation where the victim has been drinking there's the possiblity that no overt force or coercion was necessary to overcome her lack of consent.

In some other states--I know it's true in Ohio, see the recent Steubenville case for an example--there's case law that makes successful prosecution possible under those circumstances, but I'm not sure about Michigan. The statute itself seems to address the situation by stipulating that coercion can be inferred if the victim was intoxicated without her consent.

Urban Warfare

January 30th, 2014 at 1:02 PM ^

Is Michigan one of the states where the force element is satisfied by the force necessary to achieve penetration, or however it's worded?  I'm not a criminal lawyer, but I seem to recall that at least some states interepreted thrusting or entry as sufficient force to meet that element. 

grumbler

January 30th, 2014 at 1:28 PM ^

It isn't a quibble, it is the absolute heart of this whole case:  there is a world of difference between committing a crime and violating a code of conduct.  Gibbons has been found guilty only of the latter.  That determination has no bearing whatever on his guilt in a criminal sense, whether force is necesasry or not.

slimj091

January 30th, 2014 at 2:10 PM ^

holy crap is it extremely easy to be prosecuted for rape... and people wonder why i have sworn off sex, intimate touching, and sexual innuendo's. it seems as far as the law is concerned in order to be guilty of rape all you have to do is be a male, and be in the general direction of a woman who is pointing and yelling rape.

bluebyyou

January 30th, 2014 at 12:22 PM ^

It's way easier to discuss this topic in the abstract on a blog site than it is for the alleged victim should she pursue the matter criminally.  Prosecutors have a full plate also and limited resources, both financial and manpower, and there is not enough of either resource if a case does not seem winnable.  If there is enough evidence to move this case forward, and "he said, she said" cases are not slam dunks, as has been reported here many times already, think about what she is going to have to endure.

In addition to reliving in painful detail all aspects of the alleged sexual assault, every other aspect of her sex life will be fair game, and this will be on full display in a court room with a very unsympathetic lawyer making her look every bit the "bad" girl, whether she is or isn't.  

I might be wrong, but II suspect that the student who made the sexual assault accusation against Gibbons is probably wishing almost as much as Gibbons that this matter had not been reviewed.  I feel very sorry for her, but I also have concerns that Gibbons needs to be treated fairly and worry about due process considerations attendant with a university review process, along with a lowered burden of proof that the university is now using.

From my perspective, this is a situation, with the current timeline, where all parties involved come out behind.

nowayman

January 30th, 2014 at 1:36 PM ^

history with Gibbons based on what little I know of the case.  But who knows.  I've never tried a rape case in Michigan.  

 

Anyways, I wasn't trying to be snide.

 

Edit: Also, apparently Michigan pioneered the law.

/the more you know rainbow.  

bluebyyou

January 30th, 2014 at 5:58 PM ^

I'm an IP lawyer.  If I went near a rape case, I'd be sued for malpractice.

As most of us know, "no means no", even if promiscuity is a woman's middle name.  Her past and future sexual history doesn't negate her right to always say "no", but a history of certain sexual conduct would seem like a fertile area to explore, particularly when alcohol is involved.  It seems to me that to not allow a defendant to explore such prior conduct would be hamful to a defense.

I''d be curioius to hear what our members who practice in this area have to say.

nowayman

January 30th, 2014 at 7:15 PM ^

Not to mention the chilling effect that allowing third party sexual history of the victim would have on future cases.  

 

Some jurisdictions statutorily allow evidence of third party sexual history.  Michigan isn't one of them from what I can tell.  

 

Nor should it be.  The trial should be focused on the event in question.  

 

Evidence that a woman is promiscuous (and we're talking in the abstract here) is just that, evidence that a woman has been promiscuous on past occasions.  The inference from that that you're suggesting is one of the things the law was aimed at stopping.  

 

This is probably one of the few areas of criminal law that I'm okay with slightly restricting what defenses a defendant can use.  And I honestly don't see any problem with it constitutionally.  

 

Edit: not only all of that but I also think that past sexual history with third parties should straight up fail an evidentiary balancing test.  Especially in our society that is still somewhat puritanical when it comes to sex.  

 

But it hadn't for years.  Hence why there had to be legislation.   

GoWings2008

January 30th, 2014 at 9:22 AM ^

and it fills in a few missing pieces of information, but not all of them. The time between Aug '11 and Aug '13 is still not quite explained. But, I feel slightly better having read this article.

Meson

January 30th, 2014 at 9:27 AM ^

It was explained ad nauseum in the other threads. The new rules they were using were interim, and when they permanently adopted the rules (in August 2013) they decided to review cases from the past. When you make huge sweeping changes like lowering the burden of proof on cases that will expel students, there has to be evaluation of the new rules. What would have happened if they reviewed the case before the rules were made permanent, and then decided not to stick with the new rules?

GoWings2008

January 30th, 2014 at 9:32 AM ^

Got all that. Read it. Understood it. But a two year time period is excessive, in my humble opinion. I'll also reference the one poster who used to be part of the conflict resolution office who said that investigations that took longer than a semester were rare, or something to that effect. A lot of what you said was discussed yesterday by those on this blog and those were some solid points. BUT, the university still hasn't explained that time frame in enough detail to satisfy me. But that's just me.

One Inch Woody…

January 30th, 2014 at 9:38 AM ^

Perhaps it could be explained by the fact that this incident was not the only sexual assault case they were considering? Perhaps there were more terrible but not as public acts that University is obligated to deal with first? I've said this before in regards to other... things... Just because an athlete/athletic program is an athlete does not mean that they should receive different treatment than others. This includes benefits and punishments - everything should be done as fairly and impartially as possible.

One Inch Woody…

January 30th, 2014 at 9:46 AM ^

I should add that I am partially referencing another situation that was exposed on Ann Arbor watchdog. A female grad student in material science engineering was repeatedly verbally harassed, stalked, and physically and sexually assaulted all under the blessing of the university and the Matsci faculty. She has yet to find justice against her tormentors and I would be extremely disappointed if Brendan Gibbons was processed quickly simply because he is an athlete while more politically charged cases like the one above are left alone.

One Inch Woody…

January 30th, 2014 at 9:52 AM ^

Last thing (on phone so can't edit) - the case with the female graduate student was actually a lawsuit against the university and her faculty adviser and department chair. The university attempted to dismiss those charges, but the court upheld them. Hopefully the suit results in some action being taken against those two faculty members.

Everyone Murders

January 30th, 2014 at 10:42 AM ^

This alleged assault in the materials engineering dept took place "all under the blessing of the university"? That's either silly hyperbole or ... . Or nothing. It's silly hyperbole. It's been a bad week for Michigan's image, and from what I have read rightfully so. But to assert as fact that Michigan is blessing heinous alleged conduct is not helpful to the dialogue. And that's coming from someone who has successfully prosecuted sexual offenders in a prior work life. Your core point is spot on, btw. Equal justice cuts both ways, and a good system doesn't let political pressure set priorities on resolving cases. My only beef is with your "under the blessing of the university" assertion.

Meson

January 30th, 2014 at 11:16 AM ^

I am aware of that situation, in fact I posted a link to it last week on this very blog. You have no way of knowing whether that case was reviewed or not. For all you know, the accused could have already been expelled or left/graduated (in which case they can't expel) and you wouldn't hear anything because the university doesn't publicly state these things.

That incident and the response from the department she complained to clearly showed that the University needed overhauling of the process handling 'sexual conduct'; I for one am glad she finally sued the University to effect change. It's what she should've done instead of trying to unionize the GSRAs.

Blue Mike

January 30th, 2014 at 10:06 AM ^

From the press release last night, the case was reopened because of new information.  It does not mention when that new information was discovered, or what it was.  It most likely didn't surface in August of 2011.  

From the press release, I understood it to mean that someone reported something new to their office this August, so they investigated it, triggering the rest of this.  Why is that hard for people to believe?  Do you think they had this file just sitting around, waiting until they plausibly finish it right as Gibbons finished his football eligibility so that the football team was minimally affected?

ijohnb

January 30th, 2014 at 9:44 AM ^

of "cases from the past" flat out does not add up.  I have said it a couple of times on other threads so I won't say it again (after this), but I do want to mention it one more time.  I am not playing the "attorney card" here, but as a lawyer I am trained to spot holes in logic, explanation, what-have you.  An investigation, a close of that investigation, followed by new rules years after the "close" of that investigation would not result in the de-novo review of past closed complaints.  I am not saying I have knowledge of what transpired in this particular investigation, but that narrative does not make sense, period.  One of two things happenned, 1) the matter was NEVER investigated in 2009 due to the fact that in 2009 a complainant had to act for an investigation to commence , or 2) new information emerged in 2013 leading to the certain conclusions that were drawn in 2009 no longer holding up. 

And if this reveiw of "cases from the past" was conducted without additional information, you better believe that the football player that has played four years for the team after the incident took place would have been one of the "still no-go" pile after such a review had taken place to avoid exactly what is happening right now when the case could have remained rightfully closed based on the investigation in 2009 and all of this avoided.  Please don't tell me that in 2013, the university administration out of the blue become concerned enough about this "Gibbons psycopath" that it needed to get him off the campus ASAP after closing an investigation on him 4 years before.  Does not hold water.

jblaze

January 30th, 2014 at 10:08 AM ^

This article hints at no new evidence being presented. That must mean that in 2009, the complainent did not want to persue this matter any further and that she still does not want to persue this matter. However, now the OSCR has the ability to hear cases even when the complainent does not cooperate and a student from the University filed a complaint against Gibbons to open this up (in the eyse of the OSCR).

That seems most logical to me.

ijohnb

January 30th, 2014 at 10:44 AM ^

1.  Incident takes place.  Incident is reported to authorities, authorities investigate, determine that no crime took place.  Not due to lack of victim parcipitation, alone, but instead due to the circumstances leading to the allegations including a victim with either a shaky narrative of the events or a fading interest in pursuing it.

2.  No report is ever made to the University because there are no charges and because the complainant, whose report is required to commence an investigation, does not make one, and the police simply don't answer to the Universtiy administration, there is no chain of command there, and without criminal charges, really what is there to report?

3.  Rodriquez is likely made aware that allegations were made, that the allegations were not going to result in criminal charges, and there is nothing to see here.  Remember, Rodriguez had some big fish frying in November, 2009, and the news that his freshman kicker didn't rape somebody is information that while certainly garnering an eye brow tilt, probably did not knock him off his feet at the time.  And let's be honest, did Rich Rod really seem like a guy overly concenred with dotting every i and crossing every t?  Please understand, I am not saying RR = cover up.  I am saying that there was nothing for him specifically to do.  The police had determined that it was a dead end, what else does he need to hear? 

4.   Watchdog Report.  I believe that with the publishing of this report and the lead up to publishing, many people who probably should have known about this at the time it occured found out.  Brady Hoke may find out for the first time here.  Why, specifically, would he have known before this.  And while Gibbons had been cleared criminally, there still were issues relating student conduct that remained unanswered and in fact had never been investigated by the University.  No complainant is needed under the new rules regarding sexual assualt, University launches its own investigation, not because they want to, but because "for god sake are you saying that we never looked into this, OMG we are completely screwed here."

5.   The investigation into it begins to heat up, players are likely questioned, coaches are likely questioned, suspicion and frustration spread, and in some small part can possibly help to explain why Michigan went from looking like a sparkling new cadillac to rusty old Nova in the course of about two weeks, approximately one month after the report was published (and possibly why one of the best kickers in the recent history of Michigan football all of the sudden cannot make a 30 yarder to save his life).

No investigation in 2009.  A belated investigation in 2013 revealing that Gibbons conduct on the night in question, while possibly stopping short of criminal (or beyond a reasonable doubt), was certain troubling and worthy of reproach, and that he in all reality, had no business being on that team at any time after 2009.

 

Ed Shuttlesworth

January 30th, 2014 at 10:54 AM ^

I basically agree with that theory of the case.  It could very well be that the publication in the Watchdog had something to do with the University case being reopened and/or reconsidered. 

Is it true/confirmed that the Watchdog post was the first time the actual police records had been posted or reported upon?

 

grumbler

January 30th, 2014 at 1:52 PM ^

I agree with this; it is what i have argued all along, with the addition of the watchdog report.  that report, now that i think about it, could very well have, on its own, triggered the investigation.  The University (meaning OSCR and OIE), under its current rules, has to investigate every case of sexual harassment or misconduct that comes to its attention.  If that didn't happen until 2013, then  there was no delay inanything except the delay in the UM finding out that there was something that needed investigation.

I don't think that the UM reacted with "OMG we are so screwed."  They weren't screwed.  that had had no previous obligation to investigate.  They most likely said,

"Well, what do we do with this new information coming from this watchdog source?"

"The policy says that we have OIE investigate."

"But it happened four years ago, and we didn't investigate then."

"The new policy makes no exceptions for length of time or lack of previous knowledge of the potential violation."

"Okay, get OIE on the line for me, will you?"

No coverup is necessary, no screw-ups, no incompetence, no nefariousness, and no indifference.  All that is required is that we believe that the University didn't realize that it had to act until sometime in 2013.  I agree with you that that doesn't seem so hard to believe.

 

ijohnb

January 30th, 2014 at 2:25 PM ^

Looking at my own narrative, there is no reason the University is screwed at that point, or at any point, unless they completely ignored it when they found out.  You're right, that doesn't fit within my narrative, I stand corrected..

Monocle Smile

January 30th, 2014 at 10:18 AM ^

Firstly, an arrest was made in 2009 and the charges were dropped, so clearly this matter was investigated. Why people are ignorant of this or forget it is beyond me.

Secondly, reviews are taking place likely because the new policies specifically lower the standard of evidence for deciding "guilt" and taking action.

gbdub

January 30th, 2014 at 10:44 AM ^

Even if "the gap between '11 and '13 is too long" (and I have no basis for believing it is) I've yet to see a plausible explanation for why a university intent on covering up for an important football player would reopen the case at all, let alone early enough that it would affect the end of said player's career. If they wanted it buried, they have an odd way of doing it.

Caution and bureaucratic inertia seem much more plausible, though not as juicy or nefarious.

ijohnb

January 30th, 2014 at 10:49 AM ^

and he was not a particularly important player.  That was part of the issue.  Nobody cared about Gibbons in 2009.  He has a freshman never had played in a game kicker.  If he was the starting quarterback this can of worms is likely opened up on the spot.  He was basically Joe Scmoe.  Ask yourself, when you were in college, if you were investigated and cleared of a crime, how would the school have found out if you did not tell them yourself?

PB-J Time

January 30th, 2014 at 10:24 AM ^

I wasn't there so I certainly don't know what happened. But I'd like to start a discussion point from a different analogy so I replied to get this a little higher in the thread.

I see similarities to the NCAA vs. Penn State. Major differences here are that the evidence was overwhelming in that case, and more importantly there were concurrant criminal proceedings. Of course this is not a perfect analogy, but it raises a question-

Here's my point: Did you (MgoBloggers) think then, and do you think now, that an organizational body that has noting to do with the criminal justice system (NCAA/OSCR) that does not have investigational power, should be able to dole out punishments for criminal (felony) actions?

I don't have the right answer to this. I was so angry at PSU for turning a blind eye that I wanted to see them punished, but leveling the punishment that the NCAA did for non-football related felonies was inconsistent with their previous punishments. 

In this case now, we know there will be no criminal charges, but yet someone has leaked this and we all know are thinking that Gibbons is guilty of commiting this act (WHICH IS A FELONY). 

As I've stated in other threads, I'm more comfortable with organizations within the criminal justice system investigating and punishing criminal acts. Thoughts?

Yeoman

January 30th, 2014 at 11:13 AM ^

...imagine that Sandusky had been a student instead of an employee. Maybe, to make it even more closely parallel, imagine that one of his victims had been a student, maybe someone that was admitted to the university at a young age.

I would have absolutely no problem with the Penn State equivalent of the OSCR taking action to suspend or expel him prior to the conclusion of legal proceedings if said student had brought a complaint, and the evidence supported it.

Mr Miggle

January 30th, 2014 at 1:24 PM ^

comfortable with the criminal justice system investigating criminal acts, I completely disagree with the notion that they should be the only ones to dole out penalties.

For example, let's suppose a student phyically attacks his professor during class. There are a dozen witnesses. Should the school take no action because it's a criminal case or should they be able to hold a hearing and consider sanctioning him? If a school has strict rules against drinking somewhere on campus, can they only have penalties against students of legal drinking age? After all, the underage students could be charged as minors in possession.

If we're looking at the NCAA, consider a case where a program is accused of paying a HS coach to steer his star player to the school. That's not illegal most places, but it is against NCAA rules. So the NCAA is entitled to investigate and dole out penalties, if warranted. What if instead of cash the program supplies the HS coach with prostitutes? What about blackmailing him? Commiting criminal acts shouldn't be a way out of NCAA sanctions.

What would be wrong would be to have schools or the NCAA usurping the role of the criminal justice system. I think they are careful not to interfere with official investigations and they have no power to hand out criminal penalties. They do have a resposibility to enforce their own rules and their own rules pretty much always include a catch all to prohibit all illegal acts.

 

ontarioblue

January 30th, 2014 at 9:38 AM ^

My concern is the timeline beginning when the head coach and the AD knew what was coming down and the action they took at that point.  Eric from Dayton did a great job yesterday with most of it.  He did miss the fact that Gibbons was at the year end banquet and participated in it on December 9, only 11 days before he was expelled from the University.  I find it hard to believe that no one knew this was coming, especially on December 9th when he clearly was still part of the team.  

VintageBlue

January 30th, 2014 at 10:06 AM ^

Obviously many of us here have on maize & blue glasses but I just find it near impossible to believe that Hoke would have had Gibbons at the banquet if the Athletic Dept was fully aware of the status of the OSCR investigation. 

 

Let's say hypothetically that the OSCR is entirely removed from the AD until such point that an outcome from the OSCR process would impact a student's status within the AD.  There's a pretty easy explanation for his 'iffy' status at OSU, his attendance at the banquet as well as the 'family matter' for the bowl game.  That explanation would perfectly fit Hoke's actions and comments from late November through the Bowl game.  Unfortunately we may never know the truth of what happened between November 20 and December 23 inside the football program but it would sure clear the air if we at least knew how and when the OSCR and AD communicated.

Ed Shuttlesworth

January 30th, 2014 at 10:10 AM ^

If the "muscle pull" statement regarding why Gibbons wasn't kicking against Ohio was a cover -- as it pretty clearly was, as was "family matters" before the bowl game -- Hoke knew of the finding of "guilt" no later than the date of that statement.  That was 2-3 weeks before the banquet.

gbdub

January 30th, 2014 at 10:50 AM ^

How was the "muscle pull" argument "clearly a cover up"? I seem to recall panicked tweeting from the beginning of that game to the effect of "Oh no, Gibbon's is in a boot and Kenny Allen is warming up on field goal kicks".

An if you're trying to cover something up, why suspend a guy at all when punishment hasn't been finalized?