Without Probable Cause

Dez Wells brought a great deal of good publicity to Xavier University. Did his own popularity make him a better fall guy for the administration?

UPDATED 29 August: Read below the jump for the details of what Dez Wells was accused of and expelled for.

Preponderance of the evidence- A legal term meaning that evidence suggest that a certain person has done a certain thing. 51% is considered a preponderance.

Probable cause- A legal term meaning that a reasonable amount of suspicion, supported strong circumstances, a prudent and cautious person would believe certain facts to be true.

Neither of these terms generally have much use on a college basketball blog. Unless you are an attorney or a police officer, you may never even have heard that combination of terms. Now, as a Xavier University Musketeers basketball fan, the fate of your team's season was most likely just decided by them.

Dezmine Wells is, by all accounts, a pleasant young man. He's had some of the same issues that every teenage alpha male has, but he has made a public commitment to growing up and moving past them. Wells' attempts to keep himself in the good graces of the public eye were on display in the very first game he played at Xavier, when he threw down a dunk that would have sent the average college basketball player into a spasmodic fit of celebration. Wells was content to simply jog back to the other end without allowing himself so much as a smile. As the season went on, Dez warmed to the occasion, often joining Mark Lyons in exhorting the crowd, but he was very careful to avoid negative gestures or overt braggadocio.

Now, Dezmine Wells has played his last game at Xavier. Why a young man with a seemingly genuine smile and an undeniable zest for the game has been run off campus comes down to three legal terms he may never have even heard before this August. The reasons, though, begin in an ugly and terrible incident in 2009.

Kalyn Burgio (who has consented to her named being used) alleged to the university that she was assaulted by fellow student Sean Marron in March of 2009. Marron, who had already been found responsible by the conduct board for a similar assault, was on campus despite a suspension he was going to have to serve. Burgio reported the incident to the Dean of Students, Luther Smith, who asked her to consider dropping charges in return for Marron voluntarily leaving campus. Burgio twice said no, and was twice rebuffed by the school. Burgio further alleged that she was not informed of her right to file criminal charges, that the university delayed the disciplinary hearing, and that she was given no academic accommodations for the trauma she suffered. All of these allegations are violations of Title IX and university procedure. This complaint, as well as two other well documented cases, led to Xavier being investigated by the Education Department's Office of Civil Rights (OCR).

Any time the federal government gets involved, things can go very badly for an institution. Xavier escaped the public beating that Penn State took, but didn't escape unscathed. Luther Smith, and his boss, Kathleen Simons, both were removed from their positions. Xavier was found to not be in compliance with Title IX and was informed that OCR would be monitoring the situation very closely. The ruling hit on July 23, and forced Xavier to start multiple new training and reporting programs. President Graham said Xavier "has always taken allegations of of sex[ual]... assault, and violence, very seriously and will continue to be vigilant in this regard." By October 31st of 2012, Xavier was going to have to overhaul its procedures to appease the OCR. Red-faced and undoubtedly culpable, Xavier needed to send a message.

UPDATE: It got its chance in early July when a woman claimed to have been assaulted by one of the faces of the university, a men's college basketball player. According to this woman and later witness testimony, the evening had begun with a game of Truth or Dare in a dorm room. Later in the evening, the woman and the basketball plater returned to her dorm room, where stories diverge. According to the player, it was consensual, a typical college encounter. According to the woman, it was rape. The woman failed to even mention the incident to friends that night, and didn't pursue any sort of action until after a later phone call with a friend. A rape kit and full examination were done by University Hospital and returned absolutely no signs of forced sexual activity. Xavier administration though, now had its fall guy. What better way to show the Department of Education how seriously the administration was taking this than by taking down the biggest name on campus?

On Aug 21st, the administration struck a hammer blow. Rising basketball star Dezmine Wells was expelled, seemingly out of the blue. In reality, Wells had been expelled on the 3rd of August, and had his appeal denied barely a week after that. According to many sources, including Jeff Goodman of CBS Sports, Wells was expelled because of a violation of Xavier's student conduct policy, specifically a sexual assault.

When Wells was completely exonerated of all possible charges on Tuesday, it immediately became clear that Xavier was once again in a position of having to manage a public relations nightmare. Hamilton County Prosecutor Joe Deters wasn't shy, saying that the expulsion of Wells was "an injustice" and "fundamentally unfair." Deters questioned everything from the result, to the process, to the makeup of the board, to the matter in which the decision was made, and intimated that the university didn't know what it was doing. Deters said the evidence "Wasn't even close. We would never take anything like this to court. It just wouldn't happen."

The university wasted no time in responding. According to an official statement, the school was compelled by law to use a "preponderance of the evidence" standard in looking at the Wells case. In yet another misstep, Xavier then said that "the conduct board heard evidence that may or may not have been heard by the grand jury." That is, on its face, an admission that what came before the board was simply spoken testimony, not required by Ohio law to be sworn to or substantiated in any way. Whereas grand jury testimony must be effective and factual because of the threat of perjury, Xavier admits that testimony before its Conduct Board may not be either of those things. The grand jury must find that there is probable cause to believe that a wrongful act has been committed before indicting. In the case of Dez Wells, they did not. Xavier stands on its decision, saying "the matter was considered and upheld by an appeal board of members of the student body, faculty and staff and is final." No further comment seems to be forthcoming.

There are several questions about this entire process that beg for an answer. The conduct of Xavier's board has no unquestionably cast a pall on the student body and, of course, the basketball program.

Is this an over-reaction? It certainly seems like it. Ever since the events of 10 December 2011, the Xavier administration has been running scared. An attempt to control the student body via the medium of banishment met with such virulent protest that it was cancelled in favor of the now infamous "reflection sessions." Xavier came down on its athletes involved in the fracas every bit as hard as the other school involved. Even afterward, it was clear that the administration was trying to distance itself from its most popular product in a needless attempt to save face.

Is this crass opportunism? Unfortunately, it looks like it is. Xavier didn't wait for any legal experts to examine the case, didn't wait for Dez Wells to be examined by a grand jury, and ended Dez' appeal process 18 days before they had to. In short, this wasn't about finding out what happened or ensuring that justice was served. It appears that the Xavier University administration simply jumped at the chance, once again, to make a statement that didn't need to be made. And, just like before, they refused to correct the error that they had made once it became clear it was wrong.

Consider this for a moment. All the grand jury had to find was that there was some hint of wrongdoing. The standard of probable cause in grand jury isn't so great that cases have a difficult time clearing it. Even cases that are open and shut not guilty rulings when they make it to court still make it past grand jury. This case couldn't even do that. 12 people sat in a room and determined that there wasn't enough evidence to even bother presenting the case to a jury. While that was happening, Xavier was preparing a statement asserting that they refused to back down from their expulsion of a student based on those same facts. A student, mind you, that Xavier has a duty to protect just as surely as any sexual assault victim. Why not take a stand? Most likely because someone felt it was more politically expedient to offer Dez Wells as a sacrifice to the OCR.

Where do we go from here? We go down the lonely road toward disillusionment. No one expects any person or institution to be perfect. What people do want is to believe in the institutions that they support. We know that our sporting heroes have their indiscretions, but we want them to be basically good. Quite often, we hold universities to the same standard. Some of that hope, or maybe naiveté, is gone because of today. Dez Wells will twist in the wind, innocent of all he was accused of, until another school sacrifices another young man living out his dream to fit Dez in. Xavier University will proceed with class, soccer, and orientations as if nothing happened. Xavier fans will be a little less vocal though, because of what happened today. Today we saw what happens when no one is brave enough to stand when pressure is brought to bear. Today we saw what really lies at the heart of the institution for which we all cheer, and today we are all a little worse off for it.

Timeline:
March 23rd- Xavier falls to Baylor in Sweet 16.
May 6th- Mark Lyons leaves Xavier for Arizona.
August 3rd - Dezmine Wells is expelled from Xavier.
August 9th-11th - Wells appeals expulsion and appeal is denied.
August 21st - Story hits media that Wells has been expelled, allegedly for sexual assault, a violation of the student conduct policy.
August 28th - Dez Wells is cleared of all charges.

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