'If the truth helps you ... you shout it loud'

Otherwise, invoke your 5th Amendment rights, defense attorney says

By Kevin Spradlin and Phil Wheeler
ENGL 336

Related links:
* Inconsistencies apparent in judicial board process
* Students: Know your rights 
* Annual Security and Fire Safety Report (2017-18)
* FSU Student Affairs Annual Report (2016-17)
* Association of Student Conduct Administration: Preponderance of Evidence Standard
* ABA Report: Balancing student rights with school safety

CUMBERLAND, Md. — Sarah J. Willetts recalled an episode of Law & Order: SVU in which New York Police Detective Olivia Benson was arrested, handcuffed and escorted out of the building. Her partner, Elliot Stabler, yelled to her, "Olivia, don't say another word."




Photo by Kevin Spradlin

A Frostburg State University student awaits Frostburg Police Department

Patrolman Tony Rossignuolo, who is completing paperwork inside his patrol

vehicle after a two-car accident outside of the Frostburg State University 

Veterans Center on December 4. The disposition of this case was unknown.

That should, Willetts said, speak volumes about what students should say to police if they are suspected of having committed a crime.

"If the police are telling the police not to talk to the police, then you shouldn't talk to the police," said the defense attorney with Noonan and Noonan in Cumberland. "If the truth helps you, you stand up on the table and you shout it loud. If the truth hurts you, that's when you invoke your right to remain silent. It's always good to invoke your right to an attorney if you think you've been accused of a crime."

Willetts said once a student gives any incriminating evidence or statements to the police, "you can't unring that bell."

That, of course, is a bit opposite of what area law enforcement agencies need to help maintain law and order. T. Scott Donahue is with the Frostburg State University Police Department. He has 26 years' service with the agency, including the last eight as operations lieutenant. 

"We rely on (students') assistance as much as anybody here," Donahue said. "Student cooperation is very, very important."

Lt. T. Scott Donahue,
operations lieutenant with the
Frostburg State University
Police Department.

Donahue discussed the moment when a law enforcement officer has a professional obligation to stop asking questions of an individual. That moment, he said, is when the person being questioned becomes a suspect, such as "if you make an admission of some sort, or you might have information about that crime. At that point, that changes. Then I need to read you your rights and let you know that you don't have to speak with me. You have the right to an attorney being present before you answer any questions. You have to be careful. You need to read that person their rights."

Donahue said one way the agency has helped students be able to provide information without incriminating themselves is by setting up the tips hotline. The phone number — 687-STOP (7867) — allows callers to remain anonymous. The hotline has been in place since the Fall 2010 semester, Donahue said.

Sarah J. Willetts is a defense attorney with Noonan and Noonan in Cumberland. Her firm has represented numerous students over the years. She understand what law enforcement officers are hoping for, but it's important for students to understand what they should and should not do.

"Not cooperating and invoking your Fifth Amendment rights are two different things," Willetts said. "It's an important right."

The battle against alcohol, drugs

Former FSU President Jonathan Gibralter's administration gained national attention as it made strides in combatting underage drinking by students in the campus community. In April 2014, then-Gov. Martin O'Malley signed legislation that decriminalized possession of small amounts of marijuana. Donahue said that it seems as though that while alcohol-related arrests have decreased since then, the number of drug arrests have increased.

The numbers support Donahue's theory. In a three-year snapshot taken from figures in the 2017-18 Annual Security and Fire Safety Report, liquor law arrests have decreased by nearly half, from 50 to 26, between 2014 and 2016. Drug arrests, meanwhile, have skyrocketed more than 60 percent in the same time period — from 22 arrests in 2014 to 36 in 2016. 

The statistics are taken from the 2017-18 Annual Security and Fire Safety Report as prepared by the Frostburg State University Police Department. Since the Maryland legislature decriminalization possession of small amounts of marijuana in 2014, alcohol-related arrests have decreased while drug-related arrests have increased.

"We would like to say (the decrease in alcohol-related arrests is) from our efforts, patrol efforts out in the city," Donahue said. "People are using marijuana more, and not so much the alcohol."

Arrest or Referral?

Donahue said that while officers are on patrol, they might notice an odor of marijuana coming from a dorm room. The officer knocks. No one answers.

"Legally, we could step away ... get a search warrant," Donahue said. "But ... you'd hate to do that, and take that in front of a judge, and get him up at 2 or 3 in the morning, and you get a minute amount of marijuana. In most cases, it would be a referral" to the Student Affairs office.

Another scenario? Police notice the smell of marijuana. A dorm room resident has given police consent to search the room. Police find nothing.

"We know that you smoked marijuana," Donahue said. "We don't have anything to charge you on. You might have even admitted it. We can't charge you for just the smell. So we just refer it" to Student Affairs. "We're trained and experienced, and we can totally say that was marijuana."

Photo by Kevin Spradlin

Carl Crowe, director of student conduct and community standards at

Frostburg State University, checks on reports from allied law enforcement
agencies each Monday morning and schedules hearings with students accused

of misconduct towards the end of each week. During the 2016-17 academic 

year, the university conducted nearly 200 administrative hearings and 16 full

judicial board hearings. 

Enter Carl Crowe, the university's director of student conduct and community standards, and Dr. Jeffrey Graham, assistant vice president of Student Affairs.

"One of our goals, really, is to be fair with students," Graham said. "We're never out to get students. We're focused on student safety" and the safety of the community. 

For Graham and Crowe, the rules of evidence are quite different than in a court of law. So is the standard of proof to conclude a student is guilty or not.

"We're trying to follow a semblance of due process," Graham said, "because that's what the law requires."

The landmark court case that helped set today's process at public universities across the country was Dixon v Alabama State Board of Education (1961). 

"Everybody knows about this case," Graham said. "It stipulated that universities, colleges, who receive public funding ... they have to have a (system) or some type of due process that students are due. That doesn't mean the same as a court of law. That's why a lot of people get confused at why they can't have an attorney represent them. It's not that we won't ever talk to attorneys. They can be present at a panel hearing, not an administrative hearing. That's not the type of due process you're guaranteed. You're only due the process that the university says you're do."

Attorneys are permitted to sit with their student-clients during an administrative hearing only at the mercy of the hearing office. In judicial board hearings, the attorney can be in the room but, Graham said, cannot speak on the student's behalf or cross-examine witnesses.

Willetts sees both sides of the issue, but wants students to know one thing: There is no right to attend college.

"Going to school is a privilege, not a right," Willetts said, noting that each university "has the right to have their own little system."

Willetts said students need to work within the system if they get caught up in it. Willetts has represented several students during judicial board hearings. While she is unable to ask questions of witnesses, she can assist the student and advise what questions to ask. In a recent hearing, Willetts said she asked for a recess "probably half a dozen ... eight times" to ensure the student understood what to do next. 

Photo by Brooke Erickson

Allied law enforcement agencies, including the Frostburg 

State University Police Department and the City of Frostburg

Police Department, along with the Allegany County Sheriff's

Office and the Maryland State Police, help to keep the 

campus community safe. 

An attorney's presence is worth it for the student, Willetts said. While the student still faces an uphill battle — each member of the judicial board, except for the student member, is paid by the university, after all — it's important to note that "there's not actually too much that's fair in this world, but sometimes you get appropriate outcomes."

A win, she said, is when a student is facing expulsion but instead is suspended only for a semester. 

"That's not a bad outcome," Willetts said.

Swift Justice - Too Swift?

Graham said it is important for Student Affairs to take action on actionable cases as quickly as possible. But is it too quick? That's for the reader to decide, but there are some issues to consider. 

Graham said it's a hit-or-miss situation as to whether or not the university receives a report every time a student is accused of shoplifting from Walmart. Graham called it an "almost weekly" occurrence. 

"It's like throwing a dart at the wall and seeing if it sticks," Graham said. "Sometimes they report it to us, sometimes they don't. It's up to us, then, to determine how fair we're going to be to a student. If we find out eight months after ... are we going to hammer that student? No, that's not reasonable. If we get a report on a student the week that they did it, then we have a different reaction to that. There's a different kind of conversation for us."

Graham explained that a key value of the student conduct enforcement process is speed. 

"Our procedures are much quicker than the legal process," Graham said, "so that we have those conversations quickly. We don't necessarily punish here. We provide sanctions." 

Graham said three critical elements of a successful judicial process is that "it's got to be swift, it's got to be sure (and) it's got to be consistent. That's why we try to get a student in here within a week. Sometimes that's because we don't want them to do the same thing again next weekend."

Members of a judicial board hearing don't have much information to go on. There is the police report, comments from the officer, comments from the investigating officer (often Crowe), and any statements the student might offer on his or her own behalf. The members have ready access to any criminal charges the student might be facing. However, there is no way to know at the time whether or not the disposition of those charges. In many cases — like the assault charge on Carrasco, or the felony charges against Smith — the charges can be dropped. By the time that happens, though, justice has long been administered at the university level.

Both Graham and Crowe attempted to distinguish the judicial board hearing process from the process in a criminal court of law. The former is not much like the latter, Graham said. Except in the many ways they are similar. Graham acknowledged that a student who is defending allegations of student misconduct can hear charges that are pending, hear from a police officer during the hearing, can present their own information, ask questions of witnesses and have an attorney by their side.

"It is much like a court," Graham said.

Except, that is, for one crucial element: the standard of proof.

"The courts and the court system are trying to determine whether or not the student has violated law," Crowe said. "They have their own policies, procedures, standards of evidence that they use. As a university, we're not here to adjudicate whether or not you broke the law. What we're trying to do is to determine whether or not you violated university policy."

Whereas "beyond reasonable doubt" is the standard used in criminal court, university administrators have a much lower threshold. Institutions of higher learning use the preponderance of evidence standard, which is defined as "the proof need only show that the facts are more likely to be than not so."


Group members Brooke Erickson and Robert Higham contributed to this story.