On Tuesday, December 2, Jameis Winston, FSU’s star quarterback, attended what would be a two-day hearing to determine if he violated the school’s Student Conduct Code and if he was responsible for sexual misconduct. This was in response to a fellow student reporting on December 7, 2012, nearly two years earlier, that he had raped her (at the time, she did not know his name; she reported that it was Winston a month later, after, she said, she recognized him in a class they had together that spring semester). The case has under been under heavy scrutiny since the news first broke in November 2013.
The hearings totaled more than 11 hours, there were 10 witnesses who testified, Winston gave a statement, and the woman was questioned and cross-examined.
In the end, Major Harding, a retired Florida Supreme Court justice, wrote to Winston in his official decision that “the preponderance of evidence has not shown that you are responsible for any charged violations of the Code. Namely, I find that the evidence before me is insufficient to satisfy the burden of proof.”
The transcript of the hearing, which VICE Sports has obtained, is 214 pages (it can be read in full below). It reveals that Harding and others were often confused by what the procedures of the hearing were, that Winston and the woman told incredibly different versions of the events that night, and, looking at the whole of what was presented over those two days, it’s unclear how Harding came to his final decision.
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The hearing began in a familiar enough fashion: both parties and the judge clearing up any lingering procedural issues before starting testimony. Yet, what came out of this discussion was confusion and a possible lack of preparation.
The first issue was raised by Baine Kerr, the lawyer “representing the Complainant as her advisor.” He wanted to let Judge Harding know that his advisee was only requesting a single advisor for the hearing. She also, though, wanted to have someone with her when she was not in the room, but that person would not be advising her in the case. Kerr then noted, “I’m unfamiliar with the procedures enough not to know who really is an advisor and who isn’t.” Harding responded that “the rules are a little different from what you learned in law school.” Kerr agreed, “they are. They are.”
While Harding was the sole judge in this case, he struggled repeatedly because of his own lack of knowledge on how the hearing was supposed to proceed. There were a handful of people in the hearing room not associated with either Winston or the woman who helped Harding determine the correct course of action: Carolyn Egan from FSU’s General Counsel; Rachel Bukanc, an associate dean from FSU’s Student Rights & Responsibilities who describes herself as an “advisor to the panel”; Robyn Jackson, associate general counsel for FSU; and Tony Bajoczky, a lawyer working with Justice Harding.
Early on, Winston’s lawyer, David Cornwell (who has released the woman’s name on Twitter in the past and across from whom she had to sit in the hearing room), asked if his associate would be able to listen to the proceedings “via the conference call line from the room that we have downstairs.” Harding responded, “Yeah. Well, I don’t know what the rule is in that regard.” Ms. Jackson stepped in at that point to see if she could resolve the issue, which she eventually did.
Before the hearing began, the group also discussed how they would physically move Winston and the woman in and out of the room since, according to Bukanc, “the Complainant has the right not be in the same room as the respondent,” which “she requested.” As Bukanc began to explain this rule, she said to Cornwell, “I know we weren’t able to actually finish the information session. This would have been a part of that session.” This indicates that FSU had prepped and even given part of an information session to the advisors about how the hearing was supposed to unfold, but that they never completed it. When Jackson stated outright that “it’s really up to our Hearing Office [indicating Harding] on how he wants to do it,” Harding responded, “well, these rules have been in effect a lot longer than I have. And I would welcome your counsel.”
When the moment finally arrived for Winston and the woman to give their opening statements, confusion continued to muddle the hearing. Harding said, “All right. Now, I’m going to begin the hearing with opening statements. … We will begin. Complainant, would you like to make an opening statement, please?” She responded, “Your Honor, I was under the impression that I would go second.” Harding responded, “Wait just a moment.” He then conferred with Jackson and Cornwell, Jackson pointing out that the University went first with its opening statement and that, in fact, “Justice Harding’s remarks were the University’s opening statement,” to be followed next by Winston’s. And so he went next.
Winston summarized the night thusly: “During our consensual sexual interactions Complainant engaged in a little sexual talk and took other actions that made it clear that the sex was consensual and she was enjoying having sex with me. If Complainant did not want to have oral sex or intercourse with me she was fully capable of expressing it to me.” He noted that “rape is a vicious crime,” but also that “the only thing as vicious as rape is falsely accusing someone of rape.”
The woman then gave her statement. There is nothing in it that resembles Winston’s version. She stated, “I remember being raped on [Winston’s] bed clearly. I remember pleading with him to stop clearly. And I remember one of his friends telling him to stop and saying she is saying no clearly. I remember being carried into the bathroom and [Winston] locking the door behind him. I remember him holding me down and raping me while I tried to struggle and resist him. I remember these things as clearly today as they were in 2012. I remember sitting in my class the first week of the spring semester of 2013 and hearing the name [Winston] for the first time.”
She noted that following the news last year of her accusation against Winston, she was “forced to leave FSU and my friends here. I was subjected to a number of death threats, and my parents’ home and work addresses were posted online. I have had my most horrible life experience played out and debated in local and national media that couldn’t care a [sic] less about me.”
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She concluded, “[Winston] raped me. There is no other term for it. I said it on December 7th, 2012 and I’ll say it as long as I live because that is what happened. It is a night that changed my life.”
She then shifted to become a witness. Harding handled the direct questioning. She stated immediately that “I don’t plan to go over [the night in question] again except to the extent that you have questions,” because she knew that Harding has access to multiple other interviews she had given over the last two years. But she did want to respond to Winston’s earlier statement. Her response was that “basically nothing [Winston] said is true.” She went on: “I never consented. I didn’t know who he was. He never told me his name. I never entered my number into his phone, and I never received a text from him.” She then went into detail about the assault: “[Winston] raped me twice on his bed where I lay frozen but telling him to stop. And again when he put me on the bathroom floor and locked the door and told me it was locked. Then I struggled against him as hard as I could, but he over-powered me and dragged me. I tried to push and kick him off of me, but he pinned me down by the arms and the leg like (indicating). I kept telling him to stop, but he covered my face and mouth with one hand and jammed it hard to the side like this (indicating), like on the floor like this (indicating). I believe this is where my head pain came from.”
Harding then questioned her. He asked her to go back over details, things she had already answered either in her statement, in the interviews given in the two years before the hearing, or her response to Winston’s statement. For example, even after she had been asked on cross-examination about getting into the cab and why she didn’t scream while doing so if she didn’t really want to get into it, Harding asked her nearly the same question during his reexamination of her testimony. At no point does her advisor or the judge himself note that the question has already been answered. There is never an objection made to this rehashing of the same information. But that kind of repetitious answering will often yield small differences in details, making a witness appear to have poor recollection, poking small but damaging holes in her credibility.
At one point, while questioning her on redirect, the judge implored her to “help me understand” her decision to get on the back of Winston’s scooter. After she already said that she didn’t know where she was, Harding asked her, “Well, why did you get on the scooter?” to which she repeated, “Because I had no idea where I was,” then added, “and I was really — I just didn’t know what to do otherwise.”
Once she has been directly questioned and cross-examined, confusion over procedure occurred once more. Harding stated, “Anything further? I guess with that now it would be appropriate, and please help me if I am following the Rules correctly, to call the next witness and that would be the Respondent –” at which point Bukanc interrupts him. “Well,” she asked the room, “do we feel like all the questions needed have been asked?” Kerr immediately stated that he had two more.
After the woman was excused, the university called Chris Casher and Ronald Darby, two of Winston’s teammates and his roommates in December 2012, as witnesses. Both declined to answer, which is their right as students at FSU. They have each already had their own disciplinary hearings relating to this case, Darby being found not to have violated the school’s conduct code while Casher was found responsible for violating it by engaging in “acts that invade the privacy of another person” and “recording images without consent.” He received a year of probation.
The next series of witnesses, the first of which testified on the first day of the hearing and the rest on the second, corroborated much of the woman’s testimony. Across all of their testimony, there was a great deal of discussion about how much she had to drink, if she was intoxicated, if it was a normal amount of alcohol for her, when, to whom, and what did she text, altogether a studious collection of details.
Her friend that testified last on day one of the hearing was the first person to see the woman after she left Winston’s apartment back in 2012. The friend called her immediately when around 3 a.m. on December 7, she saw the woman tweet “four or five tweets in a row” that were “saying like someone help, someone call me.” She said the woman was “really hysterical and was kind of like trying to piece it all together,” “she was like really shaky,” “she seemed like confused by whole thing,” and “she kept saying her head hurt.” When the woman cross-examined her friend, she asked her “did I ever say anything to you that I indicated — that indicated that I had consented to any of the sexual acts committed by [Winston]?” Her friend replied, “No, definitely not.” Her friend also backed up the woman’s claim that she didn’t know Winston’s name at that point in time. This was the friend who initially called the FSU Police department.
When Egan states that it would be helpful to play the 911 tape and to actually hear it with the friend who made that call talking “us through it,” the group of people in the room realized that was not possible. Bajoczky asked ” do you have anything to play it with?” to which Egan said, “I don’t think we have anything to play it on since I don’t have a laptop.” The tape went unplayed at the hearing.
The next friend to testify said to the woman that on the morning of December 7, 2012, “You were shaking, you were crying, you had been throwing up. You were like — it just had changed completely from anything I’ve ever seen. You were not stable, you just — I don’t know, when you tried to even talk to me you could barely talk.” When the woman asked this friend a similar question as she did to her other one, saying “in the past two year, have I ever given you the impression that I in any way consented to any of the sexual acts committed by Respondent that night?,” her friend simply said, “no.”
A male friend of the woman testified next. Harding asked him, “Did you ever describe her as flirty?” He responded, “Yes, I did in my interview. I did.” Harding followed up, “But you never saw her out of control in any way?” He said, “No way. No, sir.” When he saw the woman the next morning, “she was crying her eyes out. She would not let me touch her because — I didn’t know what happened, obviously, at first. And I went to go hug her and she would not let me touch her, she wouldn’t let me near her.” When the woman cross-examined him, she and her friend had this exchange:
Q: I told you then that I had been raped?
Q: And I told you that I had told the man to stop?
Q: Was I ever unsure if I had been raped?
A: No, you were not. You were unsure of exactly everything that happened and how you got there, but you were sure you were raped.
The next witness was the FSU police officer, Dinorah Harris, who responded to the initial call. The woman asked Harris about what she told her that night, “How clear was I that I told him to stop and he wouldn’t?” Harris told her, “Okay. Basically that when your — when in the incident of having penis to vagina intercourse that you did tell him to stop. You didn’t indicate — I didn’t indicate how many times or anything like that, but that you did at one time.” When the woman asked Harris to tell them what she said had happened that night on Winston’s bed, Harris says, “she stated she saw the door open and another black man with dreads in his hair stood in the doorway while telling the other black male to stop what he was doing. The victim stated she told the black male to stop, but he replied it would be okay.”
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The woman’s father testified that he and his wife drove from their central Florida home to Tallahassee in the middle of the early morning on December 7. They met her at the hospital. After her release, he said, “we took her back to her dorm. My wife went into the bathroom with her. She was throwing up and sick. And then we got her into her bed.” When Harding asked him, “And have you ever had the impression from those conversations that your daughter was not raped?,” her father responded, “No. She was definitely raped.”
The forensic examiner who examined the woman that morning at the hospital gave inconclusive testimony about what the vaginal redness and mild vaginal tenderness the woman had experienced at the time indicated. It could either have been caused by sexual assault or consensual sex.
The social worker who served as the woman’s victim advocate while she was in the hospital testified that “I remember that you…said that you had been sexually assaulted by a black male, that he had a roommate that had come in and asked him to stop, and when he had said stop when the roommate had come in he then took you to the bathroom and locked the door because there was a lock on that door and he took you there and finished.” The social worker told the woman that she “seemed disassociated” in the hospital, “you were not displaying any emotion outwardly which made me think that you were emotionally disconnected from the event at that time.” The social worker said that the woman’s actions that night—contacting a friend, cooperating with law enforcement—”gave me the impression that this was real and that this had happened and that you want to…figure out why it had happened and you wanted to be heard.”
Winston, in questioning the social worker, went after her credentials, noting she was not a clinical psychologist at the time and was making “opinions based on 60 hours of training on working with an undetermined number of women.” He wanted to know if the social worker knew that the woman herself did not call police, that the woman sent text messages “in the hours following the alleged assault but did not report the alleged assault in any of those text messages,” that the woman didn’t call her friends or family at first, but instead made her “initial outcry…on Twitter.” The social worker said she did not know any of that.
The final witness was Winston’s only one. Jason Newlin, an investigator with the State Attorney’s office, was not the original investigator on the case (that was the Tallahassee Police Department’s Scott Angulo). “November 14th of 2013,” nearly a year after the woman first reported the incident, Newlin said, “I was asked by our Chief Assistant, Georgia Cappleman, to assist with the follow up investigation into this case.” When Winston asked Newlin to “describe your investigation and its findings,” Newlin went into detail about interviewing two of the woman’s friends and witnesses from that night, trying to track down the other DNA on the woman’s pants, attempting to obtain video from the bar’s security cameras, and attempting to locate the cab driver. He detailed text messages from that night in an attempt to figure out the time of the alleged assault. He also read aloud text messages that she sent about a class she was taking while she was in the hospital getting her forensic exam. Winston asked Newlin to explain discrepancies in the woman’s story that led to the state attorney’s office declining to press charges. Newlin said those had to do with her alcohol levels being low and no trace of drugs in her system, a claim her lawyer had put forward at one point.
When the woman cross-examined Newlin, they had a telling exchange:
Q: I never specifically said to you that I was hit on the head, correct?
Q: And I never specifically said to you that I was drugged; is that correct?
A: I do not recall.
Q: Okay. In your role in this case you reviewed my prior statements?
Q: In all of those prior statements I said that I was at the bar with my friends, right?
Q: And that I couldn’t remember leaving the bar?
A: You remembered getting into a cab but remember how you got into the cab.
Q: Okay. But I couldn’t recall actually the bar?
A: Not that I recall.
Q: Okay. And that I recalled being in a taxi?
Q: And that I recalled being led into an apartment?
A: Depended on which interview. One of them you did not recall being led into an apartment, the other one you did recall being led into the apartment.
Q: And that I remembered being raped on a bed?
A: That is correct.
Q: And that another male came into the room stop the assault?
A: That is correct.
Q: That I was then taken to the bathroom where I was raped again?
A: That is correct.
Q: That I resisted and told him to stop?
A: That’s correct.
Q: And that I didn’t know the identity of the man who did this?
A: That is correct.
Q: So I have always been consistent in those details?
Q: In any of my interviews did I say anything that indicated to you that I had actually given consent to [Winston]?
A: In one of the interviews with Angulo you referenced not recalling if you gave consent or not and actually mentioned just because you received a text message you didn’t believe that was giving consent or not.
Q: So I never actually said anything that indicated to you that I had given consent to [Winston]?
After Newlin was excused, Harding tried to ask Winston some questions. Winston responded, “I declare under a penalty of perjury that my statement yesterday is true and accurate to the best of my recollection. … From the Rule 6C2R-3.004(6) (d) of the Florida State Student Code of Conduct I’m not going to answer.” When Harding clarified that Winston would not answer any questions at all, Winston confirmed this. Harding then asked if the woman would like to ask any questions and she said she did. Harding told her, “All right. You may ask them.” Cornwell, remembering the rule that the accuser and the accused do not interact during a sexual misconduct hearing, said to Harding, “You ask them I thought.” Harding replied, “Yes, that’s right. I’m sorry. You must submit those in writing.” And Harding admitted to them, “I’m learning this along with you.” Then Cornwell noted that Winston would not be answering any questions as he has “already answered by invoking the rule.”
Finally, the woman and Winston each gave brief closing statements. She said that Winston “knows what happened and he knows that his opening statement was not true. … The truth is I told police that I was raped because that is what happened. That is my reality and something I will always have to live with. I remain hopeful that the outcome here will be the right one.”
Winston’s entire closing statement was the following: “Your Honor, as I said, thank you for agreeing to do this case. During this process I have learned how vicious this world can be. I did not sexually assault Complainant.”
At the beginning of the hearing, Harding made a point to explain exactly how proof of burden works in this university disciplinary hearing. “Now, the sexual misconduct investigative hearing process does not allow and does not follow really the rules of a criminal court of law,” Harding said. Most importantly, “the standard of proof in a sexual misconduct hearing is the preponderance of the evidence and not beyond a reasonable doubt as in the criminal case. This means that in order for a Respondent [Winston, in this case] to be found responsible I must find that it is more likely than not the Respondent committed sexual misconduct.”
Harding only needed to decide that there was a greater than 50 percent chance that Winston had caused the harm the woman claimed he did in order to find that Winston had violated the FSU Student Code of Conduct. After consulting “investigative hearing materials” that “consisted of over 1,000 pages of documents as well as electronically stored data,” supplemental materials provided by both parties, and “witness testimony received at the hearing,” Harding did “not find the credibility of one story substantially stronger than that of the other.” He wrote in his decision that “both sides have their own strengths and weaknesses.” In other words, Harding found that there was not a greater than 50 percent chance that Winston had caused harm, but simply that there was a 50 percent one.
The transcript of this hearing is yet another glimpse into the highest profile college sexual assault case in years, a case whose now two-year-old history is tangled up with one of the most powerful big-money college football teams in the country. Harding gets at least one thing right in his decision when he says “this was a complex case.” It still is. Harding’s decision, though, offers yet another opportunity to seriously consider and to question the practical utility of college disciplinary systems and their ability to protect the civil rights of students, especially when the accused at the center of it all is one of the biggest players in one of the most lucrative sports in all the land.