CRIMINAL DEFENSE • DISCIPLINARY INVESTIGATIONS & HEARINGS

Brill Legal Group obtains new hearing for college basketball player in sexual assault case

Posted June 14, 2019

Brill Legal Group secured a new disciplinary hearing for a New York college basketball player after the Court of Appeals found that he had been robbed of his right to due process. According to the ruling, the college wrongfully took away his right to legal counsel during an administrative hearing, especially in light of a simultaneous open criminal investigation against him.

The client was accused of having non-consensual sex with a member of the women’s basketball team in 2014. The alleged incident occurred about one month into his freshman year of college when they both got drunk.

She claimed she did not consent to having sex but also said she did not remember anything. He suggested under questioning that she was probably a little more drunk than he was, but that she had clearly consented.

A criminal investigation was launched. The lawyer hired for the administrative hearing requested a brief adjournment due to a scheduling conflict. The school refused and later claimed the client would be fine because his dad, a disabled construction worker, could serve as his advisor at the hearing.

Multiple references were made to surveillance video during the farcical hearing, which lasted less than two hours. When the client asked to see the video, a school representative said it was not relevant to the proceedings. He then got expelled.

The case was subsequently filed as an Article 78 proceeding that took years, going from the New York Supreme Court to the New York Appellate Division. Article 78 proceedings are used to challenge the actions of an administrative agency in court.

Brill Legal Group lost 3-2 in the Appellate Division. The judges claimed the client’s right to counsel was not important. Although he had a right to ask for an adjournment, he had no right to receive the actual adjournment. In addition, they said the school’s claim that witnesses would be inconvenienced was more important than his right to counsel, even though the school had weeks left for the hearing.

The Court of Appeals unanimously reversed the Appellate Division decision and sent the case back for a new disciplinary hearing. However, the client was never offered a reimbursement of his tuition money.

According to the dissent, “Given the gravity of the administrative charges facing the petitioner, and the threat of additional criminal charges stemming from an active police investigation, the petitioner’s right to secure the assistance of his designated attorney at the administrative hearing was fundamental. This right was wrongfully extinguished by [the college] when it summarily refused to accommodate the petitioner’s request for this exceedingly minimal delay.”

It continued, “This case should not be analyzed as if it involved a routine application for an adjournment in a proceeding before the Department of Motor Vehicles. Aside from the punishment of expulsion, which effectively ended the petitioner’s pursuit of higher education, the petitioner faced the prospect of serious criminal charges that could have resulted in a significant prison sentence. In light of the potential impact of the administrative hearing, the failure to grant a three hour adjournment was no ordinary administrative determination with consequences confined to the administrative realm, but a decision which deprived the petitioner of his right to due process. Every participant in an administrative proceeding is entitled to be treated fairly and in accordance with due process, regardless of the nature of the charges lodged against them.”

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