Criminal charges in Gophers football sex case still possible

It took more time, additional witness interviews and a lower legal standard for University of Minnesota investigators to reach conclusions different from the Minneapolis Police Department's after both investigated a student's alleged sexual assault by several Gophers football players.

Experts found fault with the MPD's investigation but differed on whether the U's more detailed report could lead to criminal charges against some of the 10 players who were suspended, of whom five face possible expulsion.

Hennepin County Attorney Mike Freeman is reviewing both investigations and will make a decision on what to do next by the end of the year, his spokesman said. If Freeman again declines to charge, as he did in early October, it would likely mean the end of any kind of criminal case.

But if he believes the university uncovered enough new evidence to prove that a crime occurred beyond a reasonable doubt, there would still likely need to be another investigation to corroborate the U's report, said Susan Gaertner, a former Ramsey County attorney now in private practice.

Gaertner said she understood why Freeman opted to review the university's investigation. Based on just the police report, Freeman declined to file charges, citing "insufficient, admissible evidence" to prove a sexual assault occurred beyond a reasonable doubt.

However, the 22-page report by Minneapolis Police that influenced that decision was far less thorough than the 80-page report by an investigator with the U's Office of Equal Opportunity and Affirmative Action (EOAA), which was made public when it was obtained and released by KSTP-TV.

"I was surprised at the difference between the two portrayals of what occurred that night," Gaertner said. "The two do differ markedly in tone and level of detail."

Sarah Deer, a professor at Mitchell Hamline School of Law who specializes in sexual assault cases, said after reviewing both investigations she believes there's enough to convince a jury of proof beyond a reasonable doubt.

"If those things in the University report were confirmed or corroborated," she said, "there may very well be enough evidence to file charges."

Minneapolis police initially investigated after a university student accused several players of sexual assault during the early morning hours of Sept. 2 in the bedroom of one player's off-campus apartment. In its report, completed in about two weeks, an MPD investigator reviewed three brief cellphone videos filmed at the beginning of the incident and wrote that the "sexual contact appears entirely consensual."

The EOAA, however, found after a four-month investigation that the alleged victim's account was "more credible" than the players'.

Lee Hutton, an attorney representing the players, said the EOAA recommended expulsion for Ray Buford, Carlton Djam, KiAnte Hardin, Dior Johnson and Tamarion Johnson; one-year suspensions from the university for Seth Green, Kobe McCrary, Mark Williams and Antoine Winfield Jr., and probation for Antonio Shenault. The players have appealed the suspensions and have denied assaulting the woman.

Following the suspensions, Gopher football players announced their intention to boycott Tuesday's Holiday Bowl in San Diego in an act of solidarity with their punished teammates. The team ended the boycott the weekend of Dec. 16, reportedly after reviewing details of the EOAA report.

Gaertner criticized the MPD's report for drawing conclusions rather than just providing an account of the interviews and evidence. The finding that the sexual contact appeared "entirely consensual" came after investigators viewed about 90 seconds of video taken by one of the players.

"In my experience, that kind of language goes beyond the role of an investigator, and that is to impartially gather facts and not make judgments," Gaertner said

When she compared the two reports, Gaertner said she was also surprised that police did not interview as many witnesses as the U did.

"It strikes me as investigation 101 — that you talk to as many people as have knowledge of things they saw or heard on that night," she said.

The Minneapolis Police Department declined to comment on its investigation.

One of the witnesses interviewed by the EOAA included a football player who told the EOAA that he and others were listening at the door when he recalled "from the stuff [the woman] said, it didn't seem like she was into it. She said something and [the men present] decided it was messed up."

That statement proved to be crucial in the school's actions in finding the woman's account of Sept. 2 more credible than the players' statements.

The university also uncovered evidence indicating that the players "deliberately attempted to impede the university's fact-finding efforts," according to its report.

Kevin Randolph, a former University of Minnesota Police investigator, said the EOAA actually has an easier time getting witnesses to talk than police.

"The joke we make is that students are 19-year-old walking lawyers. They know they don't have to talk with police," he said.

But the university has more leverage over students, who have to talk to EOAA investigators or face violating the student conduct code, which could result in anything from a warning to an expulsion.

Randolph spent five years at the school investigating campus sex assault, where he butted heads with the MPD when he took up the case of Daniel Drill-Mellum, who raped two students in 2014. After the MPD dropped the case, Randolph's investigation over the course of a year led to Drill-Mellum pleading guilty to the crimes. He is now serving six years in prison.

After reviewing the MPD's investigation of the football case, Randolph said it was concerning that the MPD called athletic director Mark Coyle early on in the investigation to let him know about the case. But he otherwise defended the MPD's work, saying they did a thorough investigation.

Multiple officers were assigned to the case, Randolph noted, interviewed multiple witnesses and spent several days investigating despite knowing early on that it would be difficult to get charges after the woman at first said sex with the first two men was consensual (she recanted that in later police interviews).

"In a police investigation we're doing it to get the case prosecuted, into court and to a jury. And in order to do that, you've got to be able to prove beyond a reasonable doubt," Randolph said.

University investigators had a different standard — the preponderance of evidence — meaning they had to determine whether more likely than not the assault happened.

And that preponderance can be by the slimmest margins, said Richard Baker, the Title IX investigator for the University of Houston.

"I like to say 50.01 percent is all that's needed to make that determination," Baker said.

Brandon Stahl • 612-673-4626