Inconsistencies apparent in judicial board process analysis

Two students. Two arrests. Two very different outcomes. 

By Kevin Spradlin, Brooke Erickson,
Phil Wheeler and Robert Higham
ENGL 336

FROSTBURG, Md. — In more ways than one, Donald "Diego" Carrasco has accepted responsibility for his actions.

At approximately 10:43 p.m. on Sept. 10, 2016, the Frostburg State University junior was seen holding a bottle of alcohol outside a private residence on Center Street in Frostburg by FSU Police Department Senior Corporal Roy R. McKenzie Jr. . McKenzie knew Carrasco was not yet 21 because he had recently cited him for underage alcohol consumption. This was at least the fourth run-in with the law for Carrasco. He was slightly intoxicated on this September evening. And with the newest citation being written, he was angry.

"I was kind of upset because there were a lot of other people there who were drinking and who I know aren't 21," Carrasco said. "(McKenzie) didn't ID anyone else. I was pretty upset."

Carrasco told McKenzie he was not going to sign the citation. Friends, however, convinced him to do so. Signing a citation does not admit guilt but merely acknowledges receipt of the citation. Remember, though, Carrasco was angry. And under the influence of alcohol.

"I signed it, and then I bounced the pen off the hood of the car," Carrasco recalled. "The pen ... bounced back and hit Officer McKenzie in the face."

Donald "Diego" Carrasco

Carrasco's recollection matches up almost perfectly with McKenzie's account of the situation. In his statement of probable cause for the arrest, McKenzie wrote that Carrasco first asked him not to write the citation, and then "kept yelling at me" not to do so. Carrasco then "took the pen and wrote '(expletive) U'." Mr. Carrasco threw the pen at the citation book. The pen (then) bounced off the citation book and struck me in the left cheek just below my eye. He turn turned and started to walk away."

With the situation having escalated, McKenzie "took Mr. Carrasco to the ground and (I) told him he was under arrest."

Carrasco was handcuffed and taken to the police station for processing. Carrasco was charged with underage consumption of alcohol, disorderly conduct, public intoxication and second-degree assault on a police officer. Upon conviction, the maximum sentence he faced included 10 years in prison and/or a $2,500 fine for the assault charge; 60 days in jail and/or a $500 for disorderly conduct; and 90 days in jail and/or a $100 fine for the creating a public disturbance while intoxicated.

First assigned a public defender, Carrasco eventually hired a private attorney. David E. Kindermann, of Montgomery County-based Kindermann Law Offices, was at Carrasco's side in February when he pleaded guilty to a single charge of disorderly conduct. All of the other charges were dropped. Carrasco was ultimately sentenced to a $500 fine and 60 days in jail, both suspended; along with 12 months of unsupervised probation, 40 hours of community service and was required to complete a 26-week alcohol education program at a counseling center.

Long before that February court date, however — in fact, only one day after the incident took place — Carrasco had learned he would also face possible sanctions from the university's Office of Student Affairs. Carl Crowe, director of student conduct and community standards, was made aware of Carrasco's arrest by way of an automated system supported by several law enforcement agencies, including the Frostburg State University Police Department, the Frostburg Police Department, the Allegany County Sheriff's Office, the Garrett County Sheriff's Office and several others. Learning of Carrasco's latest incident was as easy as opening up an email.

Carl Crow, director of 

student conduct and 

community standards at

Frostburg State University.

"It's not uncommon that if a student is cited by ... Frostburg city police, we'll be informed," Crowe said. "They share that information with FSU police, who in turn shares that information with our office. If they have an ongoing investigation and they haven't shared something with us, then we may not be able to (act on the alleged violations). But as soon as they file the report, and we have the names and know that they're students, that would initiate a review."

Restricted by the Family Educational Rights and Privacy Act, also known as FERPA, Crowe was unable to discuss the particulars of Carrasco's incident, and the subsequent judicial board, or panel hearing, that Carrasco was subjected to. A judicial panel is generally comprised of five members, with a mix of staff and faculty and always one student member. However, Carrasco provided that he was given a $500 fine, payable to the school, required to complete three alcohol education modules online, and was put on disciplinary academic probation until his undergraduate studies have been completed.

"They fine you every single time," Carrasco said.

Carrasco said despite his previous brushes with the law, this was his first judicial board. Prior to that Crowe, as the primary administrative office for student conduct, "decides what's going to happen," Carrasco said.

Carrasco felt he had a right to be upset twice during his altercation with police, starting as soon as McKenzie rounded the corner and saw a group of students holding red Solo cups and bottles of beer and alcohol.

"I think the original reason why I got mad," Carrasco said, "was because I felt like Officer McKenzie singled me out, in a sense, because he knew me and he knew I wasn't of age. It was an easy police move to make. At the time, I was really upset about it, but I don't think it was that big of deal. Other than that, he probably didn't need to tackle me, but I guess he ... just got hit in the face and didn't know what happened, either, and just reacted. I don't think anything happened that was, like, too out of line."

In fact, Carrasco said, he and McKenzie seemed to patch things up the day after the incident, as McKenzie took him to and from District Court in Cumberland.

"We're real cool now," Carrasco said. "He talked me on the ride home" and the consensus in the patrol vehicle was that what Carrasco had done the night before "was pretty dumb."

"That whole weekend was pretty much a terrible weekend," Carrasco said.

Carrasco turned 21 in March. The social sciences major said he currently sports a 3.1 grade point average and is aiming for  a May 2018 graduation. He aspires to be a teacher, and is considering graduate school.

Student B - "Bob Smith"

A second student had a very different experience with the Crowe and Dr. Jeffrey Graham, assistant vie president for student affairs — and Crowe's boss. This second student, who spoke on the condition of anonymity due to ongoing legal issues in District Court, actually had almost no experience at all.

Nearly five weeks after Carrasco's Sept. 10 transgression, this student — he will be referred to as Bob Smith, though that is not his real name — was operating a stolen motorcycle on Interstate 68 near LaVale, about four miles east of campus. Smith and two of his friends, who were also on stolen motorcycles, came to the attention of the Maryland State Police when there was an alert about "three motorcycles travel(ing) at high speeds and reckless," according to the statement of probable cause filed by Trooper First Class S. Bennett.

Bennett turned on his radar, which showed the motorcycles traveling at 92 miles per hour as they headed west towards Frostburg. Bennett followed. The motorcycle operators took notice of his pursuit. and "immediately accelerated and began weaving in and out of traffic at speeds well over 100 mph," Bennett charged.

The three motorcycles took Exit 34. Two of them then turned left onto Cherry Lane. One was lagging. Bennett decided it was time to pull him over, and activated his emergency siren and lights in an attempt to conduct a traffic stop. Smith didn't stop.

Smith, on a yellow motorcycle, "looked back, saw my lights and siren from approximately two car lengths ... (then) accelerated," Bennett wrote.

Smith allegedly traveled north in the southbound lane, up State Route 36. Smith then turned onto Old National Pike, with Bennett in pursuit.

Bennett followed procedure and backed off. He turned onto Old National Pike and soon caught up with Smith. Bennett first saw the yellow motorcycle in the middle of the roadway, and "I located the driver over the embankment, laying in the thick weeds."

Smith was, surprisingly, fine — medically speaking. Legally, he was taken to the District Court commissioner and charged with numerous traffic offenses and two felonies, including vehicle theft, which carries a maximum sentence of five years in prison and/or a $5,000 fine, and theft of property between $10,000 and under $100,000, which carries a maximum penalty of 15 years in prison and/or a $15,000 fine.

That night, Smith alerted a trusted Frostburg State University faculty member. Within 72 hours of his arrest, Smith and the faculty member went to Dr. Jeffrey Graham, assistant vice president of student affairs, and told him what happened.

The criminal court process began playing itself out. Mostly complete as of now, Smith hired Sarah Willetts, of Noonan and Noonan in Cumberland, to represent him. Most of the charges were dropped. In addition to criminal court procedures, however, Smith also lost his part-time job — one that helped him pay for school.

But from the Office of Student Affairs? Not a peep.

The process - explained

Graham said that in certain high-profile incidents like the shooting that occurred last week on Bowery Street, law enforcement agencies aren't forthcoming with information in a timely manner, "especially when C3I ... gets involved. They're not sharing with anybody ... until they're ready to make an arrest."

C3I is the Combined County Criminal Investigation Unit based in Cumberland.

Dr. Jeffrey Graham, 

assistant vice president 

of student affairs at 

Frostburg State University. 

Judicial board hearings are relatively rare. Crowe said he conducted nearly 200 administrative, one-on-one conduct hearings with students during the 2016-17 academic year. There were only 16 judicial board hearings in the same year in Student Affairs.

Crowe explained that students are first afforded the opportunity to talk with him, and he shares the incident report from the law enforcement agency at the time. Crowe asks the student for the accuracy of the story.

"Ninety-nine percent of the time, it's like, 'yeah,' and then the head goes down," Crowe said.

But Crowe said he doesn't stop there, with the student's apparent admission of guilt. He asks for the student's side of the story "so I can get a better idea of what's going on. If they've done it, they're going to be in violation (of the student code of conduct) but the information they provide can maybe help me craft a better sanction that's going to respond to their behavior."

Like Crowe, Graham was restricted from discussing specifics from any student's case due to FERPA. But he suggested that "maybe" the incident was similar to a recent alleged robbery on campus, in that "we've never seen a police report."

If there is another agency investigating these kinds of crimes ... there are times we never get a report," Graham said. "There could be times that person is actually cooperating with police, and they won't share the report with us. They just won't. So we don't have anything to go off of. Because somebody tells us something is not really actionable. We have to try to get a report."

Graham said at least one attempt was made to obtain the report from Maryland State Police. However, he did not indicate whether or not anyone from Student Affairs contacted District Court for the same document. Graham said Maryland State Police, the agency responsible for filing the report on Smith, is not a part of the university's automated information-sharing system.

At District Court, an official said the statement of probable cause filed by the trooper would have been considered a public document as soon as it was filed. As for when a university administrator could have obtained a copy of the report, "they could have done that anytime" after Smith's appearance before the District Court commissioner, which occurred only a handful of hours after his arrest.


"There's lots of reasons why we've been frustrated many times, (when) police don't want to share reports with us," Graham said. "Sometimes that can be a problem for us. There's lots of variables in how reports come to us. We try to be reasonable with students. We try to follow up with law enforcement."

Graham noted that there is no statute of limitations for his office to take action against a student for a violation of the community standards, commonly referred to as the student code of conduct. However, Graham said, the length of time passed since the transgression, as well as the student's record since the incident, would be factored into any decision made about a late-arriving report.

"Obviously, if it was heinous, there would still probably be some immediate action," Graham said. "We always try to operate under the assumption of being reasonable. What would a reasonable person do? That's what student conduct is really about. What does the community think about this kind of issues?"

Graham acknowledged that the caseload can be overwhelming at times.

"The reality is, there is too much heavy lifting for one person," Graham said.

In the end, the result is favorable to one student and not the other. Due to the limitations of FERPA, it is difficult to obtain an accurate picture of how severe the inconsistency might be. But even T. Scott Donahue, operations lieutenant with the Frostburg State University Police Department, sees the two cases quite differently.

"I don't know why" the two cases were treated differently, Donahue said. "Here's a young man with an alcohol issue ... and he gets hammered. And this guy kind of walks away."