Brendan Gibbons Expelled, Untruths Rampant

Submitted by Brian on January 28th, 2014 at 6:21 PM

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The university and athletic department handled Gibbons about as well as he handled this field goal. [Eric Upchurch]

The Daily has revealed that the sketchy way Brendan Gibbons exited the program—a "tweak" before the OSU game followed by barely-credible claims of "family issues"—was in fact a result of the university expelling him for the 2009 rape allegations that were exhumed earlier this year:

“You will be permanently separated from the University of Michigan effective December 20, 2013,” reads a Dec. 19, 2013 letter addressed to Gibbons at his Florida residence from the University’s Office of Student Conflict Resolution, which facilitates disciplinary proceedings against students. The Michigan Daily did not obtain these documents from the University.

In human language, "permanently separated" is expulsion. The OSCR took that action based on a preponderance of the evidence.

Why it took almost five years to reach this conclusion is unknown. The Daily suggests that revised policies from 2011 may have forced the University to re-evaluate, but policies from 2011 do not result in December 2013 expulsions. Given the timing here it's clear that the guy who dumped various court documents on the internet was the proximate cause. That is of course terribly embarrassing for the university, which was apparently fine with having a student they eventually concluded they were at least 50.1% sure raped a girl as long as no one was complaining about it.

Meanwhile, the athletic department's optics here are horrible. Having him on the team is not the issue, or if it is it's on Rodriguez's head. The incident was a year old and seemingly dead when Hoke came in; without the OSCR or other university body stepping in there would be no reason to reconsider Gibbons's status.

But once they knew things were coming to a head they could not have been dumber about this. Not content with offering up the generic and 100% true "violation of team rules" explanation—being enrolled at the university is kind of important if you're going to be on the team—they chose to cloak Gibbons's departure in a thin veneer of sympathy by claiming "family issues." That is a lie. Now they look horrible, and for something a bit more serious than having a noodle in the stadium.

Meanwhile, Hoke's explanation for Gibbons's unavailability for Ohio State is questionable at best. Was this "tweak" legitimate? Is it at all plausible that Gibbons was "iffy" for the bowl game on December 16th, three days before the very last gear of ponderous university justice ground to a halt?

"He's a little iffy," Hoke said. "He's kicking a little bit. But I don't want to over-kick him (in practice).

"I've never been a kicker, so I can't imagine that (muscle pull) problem. So, he's a little iffy."

There is absolutely no chance that Brady Hoke was not fully informed of the status of his kicker by this point. Dave Brandon did not call Brady up on the 19th and say "you're never going to believe this, but…"  That's also a lie, and in the service of what cause again?

UPDATE: A user who used to work at the OSCR provides details on the process:

Having worked at the Office of Student Conflict Resolution (the "disciplinary" office that administered the expulsion proceedings against Gibbons) for two years in undergrad, I thought maybe I could offer some insight / clear up some confusion about the OSCR process in this thread.

OSCR is not, in any appreciable sense, an investigatory body. It is a passive office that acts only after receiving a complaint from some member of the University community. While any individual student, faculty, or staff member can file a complaint, the most common OSCR complainants by far are Residence Education (Housing) and DPS. In order to pursue a complaint with OSCR, the Complainant has to provide all the necessary evidentiary backing; again, OSCR does not investigate events on its own.

The process for initiating and pursuing a complaint with OSCR goes as follows:

  • An OSCR staff member conducts an intake meeting with the Complainant to discuss the nature of his/her/its complaint and inform the Complainant of the various resolution pathways available (in addition to formal arbitration, OSCR offers a number of alternative dispute resolution pathways that do not result in disciplinary action).
  • An OSCR staff member will then conduct an intake meeting with the Respondent to notify him of the complaint and inform him of his rights/options in the process.
  • At that point, the Respondent can either accept responsibility for the complaint or indicate that he's willing to proceed to a formal arbitration.
  • Assuming that the Complainant is also interested in pursuing a formal arbitration, OSCR will either appoint a trained member of the University staff to serve as the formal arbiter, or it will select a panel of student arbiters.
  • After hearing from both the Complainant and the Respondent, the arbiter or the student panel will reach a finding of "responsible" or "not responsible," and will then proceed to make a sanction recommendation.
  • Any recommendations for expulsion have to be approved by a member of the University administration. When I was there, I believe this was the responsibility of the VP for Student Affairs, E. Royster Harper.

As you can see, this is a multi-step process that requires several meetings and often many different witnesses, advisors, and arbiters. With that said, it is emphatically NOT a three- or four-year process. Given that all of the investigatory work is already completed before a complaint is filed, the formal arbitration process does not take very long at all. In my time at OSCR, I can't remember a single arbitration - including those involving sexual assault allegations - lasting more than a single semester, from initial complaint to final sanction.

Comments

ChiBlueBoy

January 29th, 2014 at 12:31 PM ^

I think we need some clarity on the concept of "due process". Due process is the general idea that one shouldn't face negative repercussions without certain related procedural rights, e.g., the right to a trial, a jury of peers, etc.

There are rules regarding due process that apply to criminal and civil cases. They don't apply here. Here, we're talking about an action by a university against a student, so the amount of process that is "due" is less. There was a process (evidence heard, the student was given a right to be heard, etc). As such, I would say that there was due process, though one may argue regarding how much process is "due" in this case, e.g., is preponderance of evidence sufficient. Whether a student has a "right" to due process in this matter is a separate question, but in this case there was some level of due process. I leave it to others to determine whether it was sufficient.

grumbler

January 29th, 2014 at 9:43 AM ^

My question is why do you assume that due process was suspended in this case?  Nothing published to date indicates that this was so.  it was an administrative, rather than a criminal, due process, but he got to tell his side of the story, and the decision of the OSCR was reviewed and approved by higher-level university officials.  That seems like due process to me.

Year of Revenge II

January 29th, 2014 at 6:31 AM ^

I, for one, am in agreement with this post.  For whatever there reasons were, the Washtenaw County Prosecutor's Office must have felt that there was little, if any, chance the victim's allegations against Gibbons could be proven beyond a reasonable doubt, so they therefore exercised prosecutorial discretion and decided not to pursue charges.  Happens every day all over this country.  Fact that it was Gibbons, in my experience, would have made the prosecutor's office MORE likely and eager to pursue charges than if the suspect had been just the average person.

GoBLUinTX

January 29th, 2014 at 1:51 PM ^

the Washtenaw County Prosecuting Attorney from seeking an indictment.  The PA (not DA) can seek an indictiment irrespective of what the police have done and likely can direct the responsible police agency to reopen a "closed" case.

As much publicity as this case has had, off and on, it defies credulity that Washtenaw County was unaware of the allegations.  Therefore it is plausible that the PA looked at the evidence and decided not to pursue the case.  

jblaze

January 29th, 2014 at 9:08 AM ^

1) You have no idea if Gibbons was remotely injured. Maybe he actually was and Hoke emphasized that point

2) The OSCR gave it's "verdict" on 12/18 per the letter that Gibbons recieved. Hoke's injury comments were made before that time period. Did you want him to suspend Gibbons when a decision was not even made bythe OSCR?

3) This is not a legal decision (criminal or civil), it is a University decision. The fact that Gibbons was not even charged means innocent until proven guilty.

Ron Utah

January 28th, 2014 at 10:59 PM ^

Before we jump to criticize anyone for lying, we should get the facts.  Was Gibbons practicing?  Was it a lie?  What did Hoke know?

Assumptions can do bad things.

And, quite frankly, before we judge Gibbons a rapist, we should wait for the facts of that case as well.  That he has not been found guilty in a court of law certainly says something.

I am NOT saying any of these people should be excused for reprehensible behavior; I am saying that knee-jerk reactions to news stories are inadvisable.

I'll be the first to jump on Hoke, Brandon, and the university if this is all true.

Gameboy

January 29th, 2014 at 2:59 AM ^

I don't know... I have never been more ashamed of my alma mater.

I don't think it is too much to ask to suspend the player during an investigation. And even if the charge is dropped, if it is more likely than not that an assault occurred (much lower thrashold than reasonable doubt), that player should not be representing the university.

I would also add that anyone who intimidates the accuser in anyway should also be kicked off the team. There should be zero tolerance for things like this. I am ashamed that Lewan was ever part of this university.

If ANYONE in AD tried to cover this up in any way, they should be fired. Hoke and Brandon included. 

Ed Shuttlesworth

January 29th, 2014 at 6:48 AM ^

And it could be that the DA didn't press charges because a bunch of the witnesses (and perhaps the victim herself) didn't want to cooperate because Taylor Lewan had threatened them with violence if they did.

According to the police report (at least as reported on this thread) he "repeatedly" made such threats way back in December 2009.

jblaze

January 29th, 2014 at 10:06 AM ^

Unless some new evidence came out (and it may have), how can the OSCR expell Gibbons when the police and DA investigated and determined not to even charge Gibbons?

It's not logical (although maybe political), especially given the the OSCR does not investigate on their own (as the poster says in Brian's post).

 

Go Blue in MN

January 29th, 2014 at 10:36 AM ^

It's perfectly logical that a prosecutor would decide not to prosecute somebody in a case in which conviction beyond a reasonable doubt would have been quite difficult because most of the evidence involved is the alleged victim's word against the accused's word, while at the same time the university, acting under a lower "preponderance of the evidence" standard, would choose to believe the alleged victim's version of events.  The evidence could be exactly the same.  A DA can have other reasons for refusing to prosecute (e.g., insufficient staffing, clogged courts) that have nothing to do with a university's decision whether to continue to keep someone on their campus who it believes committed a sexual assault. 

speakeasy

January 29th, 2014 at 1:25 PM ^

Given that OSCR originally decided to drop it, after they were alerted to the incident and investigated, suggests that the DA didn't decline to pursue charges simply because the victim chose not to continue.

My contention isn't that it didn't happen, it's that this is a procedually idiotic situation and is essentially triple jeopardy. 1) OSCR follows existing procedures, investigates, does not pursue based on existing standard 2) DA declines to chare 3)  OSCR standards change, case reopened, Gibbons expelled.

Perhaps he did it, perhaps he didn't, but I know of no other system where the rules are backdated in this fashion. In the legal system any more restrictive change to the law doesn't make liable those that committed the now banned act, and any loosening of laws doesn't automatically exonerate those who were dinged under the old laws. How many times can you try one person for one crime/incident/situation?

Yeoman

January 29th, 2014 at 1:43 PM ^

So far, he hasn't been tried at all.

Why is this hard to understand? Do people really think that a decision not to pursue charges means that decision can't be revisited in the future if new information comes in?  Or that the absence of a criminal conviction prohibits a civil case? Or that someone can only be expelled from a university for a felony conviction?

And as for "restrictive changes to the law", the relevant changes here are procedural. The alleged acts were a violation of the student code of conduct in 2009 just as much as they are in 2013. The standard of proof has changed, not the definition of the "banned act".

speakeasy

January 29th, 2014 at 3:23 PM ^

I agree with most of this, but I would argue that he was "tried" by OSCR in the sense that they completed their entire process and determined that they couldn't "prove" anything. Sure you cannot actually be tried in court twice for the same thing and I accept that he wasn't ever tried in court, but I pretty firmly reject that a new interpretation/definition of administrative rules can apply retroactively to a previously closed case.

As for all of your rhetorical questions: It's hard to understand because we don't know everything and the rules of the game changed midway. I, at least, understand that the decision not to charge doesn't prohibit future charges pursuant to the statue of limitations and that you can file and win a civil suit against someone not criminally liable. I also understand that you can be expelled for a number of things short of a felony, gross sexual misconduct, for instance.

My compaint is not that he was expelled for whatever act he did or didn't commit, it's that the University, and apparently you, deem it fair to reinterpret the rules of what was apparently an already closed case. (I happen to think a 51% standard verges on destroying due process but that's for another time)

Frankly, until such time as we know exactly what happened, which we do not and may never know, this is an abstract procedural debate.

Ron Utah

January 29th, 2014 at 11:27 AM ^

I'm not sure I've ever been more ashamed of our fanbase.

We know nothing, except that a small group determined that Gibbons was guilty of "Sexual Misconduct" (VERY different from rape) and that he was expelled.

There are a lot missing pieces to this puzzle still, and to see a young man's name trashed by lynch mob that doesn't know all the facts is abhorrent.

Gibbons was not charged with rape, and rape could not be proven (according to the DA).  The victim was charged with (and convicted of) filing a false report.  I'm not saying I know what happened or that Gibbons is innocent, I'm saying I'm going to wait to hear more before I say something that I can't take back, like "Gibbons is a rapist" or "Hoke is a liar."

I implore everyone, not as fans of Michigan football, but as fair-minded people, to be patient and withhold judgment until more is known.  What is happnening on this board right now is completely unfair: many are assaulting a young man's reputation (and future) on the basis of a brief report in the Michigan Daily, and going a step further to question the character of our coach.  I get that this is the internet and you can say whatever you want, but these are peoples' lives we're tearing down.

Finally, I will say that I believe rape/sexual assualt is an awful, terrible crime that far too often goes unpunished. My ex-wife was raped.  An ex-girlfriend of mine was raped.  Personally, I know of far too many stories of rape/sexual assault and it makes me sick.  But just because it happens doesn't mean that's what happened here.  This is a complicated issue, and I, for one, think it's best to reserve judgment on a case that is over four years old and that the police and DA seemed to find in favor of Gibbons.  IF he did it, then he deserves expulsion and more.  But we really don't know.  I had friends get expelled for things they didn't do, but they were in the wrong place at the wrong time.

Just my two cents.

bluebyyou

January 29th, 2014 at 6:59 AM ^

After thinking about this topic overnight, I have several questions/observations.

1. How and when and from whom did the Daily obtain this story, consistent with First Amendment freedom of the press considerations?

2. Is it possible that under FERPA protections that Brandon and Hoke were not privy to the state of the proceedings and its conclusion, and what Hoke told the press was information provided by Gibbons?

3. Why did the Daily wait on publishing the story?  Did they seek counsel regarding its source(s) of information?  Were they seeking corroboraton? Were they asked by the school to wait until a new president would be named?

4. Why would the University change its burden of poof to a lesser standard on matters that would have a lifelong impact on a student? A local polic investigation took place and they supposedly reached the conclusion that there was not enough evidence to proceed with a prosecution.  The university has taken upon itself to draw a different conclusion over a matter with huge ramifications for the student accused of the act and to the university itself. I am not terribly comfortable with this on a host of levels, including libel, to say nothing about ruining a person's life.  I am not defending Gibbons but I feel very uneasy about the process.

5. Based on FERPA, how much more can and will the University say about the matter?

bluebyyou

January 28th, 2014 at 6:31 PM ^

This is going to be a major story, as it should be if it is shown that the team took precedence over Gibbons' expulsion.

Unless Hoke and Brandon were kept in the dark, how does this end well for either of them?

Generic MGoBlogger

January 28th, 2014 at 6:38 PM ^

I don't really find Hoke at fault... The last thing those players needed were fifty kabillion questions from the media about how close they were to Brendan and if that came as a surprise... Hoke isn't responsible for reporting to the media about Brendan's whereabouts.... The university on the other hand is completely responsible for handling these types of matters.

Franz Schubert

January 28th, 2014 at 7:11 PM ^

It's not fitting for a leader of impressionable young men to lie about anything. In this case Hoke has for no apparent reason chosen to lie about why Gibbons was not with the team. Be evasive, dont comment or give a blanket statement but thats not what happened here. Seems like knowing your player commited a sexual assault on a female student would give Hoke a better awareness of the need for complete honesty and transparency. Evidently not. I'm not in anyway blaming Hoke for the actions of Gibbons, I am addressing a completely different issue I have with Hoke. The deception needs to stop, just dont comment if you dont want to give information.

leu2500

January 28th, 2014 at 9:23 PM ^

FERPA prevents the University from saying anything about Gibbon's educational status.    You'll note in the Daily article that both the AD's office and a University spokesman when asked to comment said they couldn't say anything about it.

So Hoke can't say anything about it, and "No Comment" was not going to fly.  An alternative interpretation is that Hoke had to say something, and this was the best they could  come up with that fit within the narrow parameters they had to work within.

 

 

Prince Lover

January 28th, 2014 at 8:22 PM ^

If you ask me, this situation will most definitely affect Gibbons family as well as Brandon. So in this regard, I don't think Hoke lied. Nor do I think Hoke is responsible to reveal Gibbons legal troubles.
And as far as Hoke being responsible to tell the truth at pressers, can someone tell me the official definition of a booboo.

WFDEric

January 28th, 2014 at 9:38 PM ^

Why are people assuming this was a rape? I'd asume it wasn't rape because A2 police or MSP dropped all charges. Sexual Misconduct defined by UofM is as follows:

Sexual Misconduct
Umbrella term used to encompass unwanted or unwelcome conduct of a sexual nature that is committed without valid consent, including sexual assault and sexual harassment. Sexual misconduct may occur between people of the same sex or between people of different sexes. Sexual misconduct can include both intentional conduct and conduct that results in negative effects, even if those negative effects were unintended. Sexual misconduct can also include retaliation in connection with a Complainant’s or Reporter’s allegations under this policy. Sexual misconduct may include the following:

  • Sexual Assault: Unwanted or unwelcome touching of a sexual nature, including hugging, kissing, fondling, oral sex, anal or vaginal intercourse, or other physical sexual activity that occurs without valid consent.
  • Sexual Harassment: Unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature if: (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s education, living environment, employment, or participation in a University-related activity or University Program; (2) submission to or rejection of such conduct by an individual is used as the basis for or a factor in decisions affecting that individual’s education, living environment, employment, or participation in a University-related activity; or (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s educational performance or creating an intimidating, hostile, offensive, or abusive environment for that individual’s education, living environment, employment, or participation in a University-related activity.

    • Examples may include, but are not limited to, the following: unwanted sexual statements; unwanted personal attention including stalking and cyber-stalking; unwanted physical or sexual advances that would constitute sexual assault, as defined in this policy; electronically recording, photographing, or transmitting intimate or sexual utterances, sounds, or images without the knowledge and consent of all parties involved; touching oneself sexually for others to view; and voyeurism (spying on others who are in intimate or sexual situations). More information about sexual harassment is available on the sexual misconduct policy website.
    • Conduct reported as sexual harassment will be evaluated by considering the totality of the particular circumstances, including the nature, frequency, intensity, location, context, and duration of the questioned behavior. Although repeated incidents generally create a stronger claim of sexual harassment, a serious incident, even if isolated, can be sufficient. For example, a single instance of sexual assault can constitute sexual harassment

Something happen to the female who made the complaint. Her complaint was enough to have Gibbons tossed from school so something happen. I feel for her and her family and wish her the best. I'm glad the school tossed Gibbons from the team and school.

Calling someone a rapist when under this definition it could have been nothing more than a drunken tit grab is also wrong.  Under this definition he could have been tossed from school for the simple reason as Lewan going to her and telling her to keep her mouth shut over a dirty text message.  So until convicted in a court of law by someone able to conduct criminal investigation I would stop calling the man who made some sort of mistake a "Rapist".

 

enlightenedbum

January 28th, 2014 at 11:28 PM ^

To quote from the police report:

"UMDPS contacted AAPD to advise that a housing Officer at West Quad was talking to a female who stated she had been raped that morning."

Gibbons admitted intercourse took place.  So the issue is consent.  If there was no consent, Gibbons is a rapist.  The report lists the offense as "forcible rape" and criminal sexual conduct first degree (later changed to third, not sure why, but the rest remains the same) penetration penis/vagina.

She said there was no consent, but was not willing to face the treatment rape victims get when cases go public.  And her identiy would have inevitably leaked, in part because Gibbons is a football player.  And because she was drunk, it would have been a trial about her behavior, because that's how we treat sex crimes in America.

If the university deemed that his conduct in his case was worthy of expulsion, then they must think he committed a rape, because that was the issue here.

Ed Shuttlesworth

January 29th, 2014 at 6:44 AM ^

Agree with the issues with the university tribunals ... but ... all of the investigations were compromised by Lewan's threatening witnesses (including, it appears, likely the victim herself.)  As a result, we can't simply default to the "Well, the police didn't charge him" meme.  The police not charging him doesn't really mean much here.

 

grumbler

January 29th, 2014 at 9:58 AM ^

So, it is perfectly possible that Gibbons didn't forcibly rape the woman, but got expelled because the consent he got was not "valid consent" as required by the student code of conduct.  Sexual misconduct/sexual assult isnt ablack-and-white issue, and attempts to make it one do not help us understand what happened or whether justice was served in this case.

mackbru

January 29th, 2014 at 1:18 AM ^

Hoke is responsible for not bullshitting and soft-pedaling such a serious matter. He's also a prominent face of the university. He's also the leader of the team -- the one who ought to set a standard for propriety. Instead, he sounded like Buddy Garrity. He owes everyone an explanation, and fast, or the tide will quickly turn against him.