From A Former Prosecutor To A UNC Student Prosecutor: An Open Letter

Ms. Elizabeth Ireland
Student Attorney General, Graduate and Professional Schools
The University of North Carolina at Chapel Hill

Dear Ms. Ireland:

First, I commend you on the tough work you do in order to help maintain an atmosphere of integrity, civility and safety at UNC Chapel Hill, my own alma mater in terms of the law degree that has graciously shaped my professional life. Your job is not an easy one, and I’d guess it seems even less so in light of your apparent (now publicized) decision to bring charges against Landen Gambill for a violation of UNC Honor Code IIC, 1.c.  

Second, I have no intention of questioning your decision based on the evidence you have before you, simply because I do not have it before me. No prosecutor should be taken to task by an outsider who lacks the same access to information that she has.

I do, however, have your Code before me, the one I presume you are sworn to uphold and from which you form specific charges addressing clearly proscribed conduct. You have charged Ms. Gambill with: 

“Disruptive or intimidating behavior that willfully abuses, disparages, or otherwise interferes with another” regarding that person’s opportunities broadly as a member of the UNC community. 

Again, without making assumptions about what you know, this appears to be in response to Ms. Gambill’s public reflections on the abuse she reported against an intimate partner last year; presumably you suspect that Ms. Gambill’s actions amount to violative behavior toward another student. Yet a close friend of Ms. Gambill’s claims confidently (I’ve seen nothing to contradict her) that 1) Gambill has never publicly named the man she alleges assaulted her, and 2) the bulk of her protestations involve not what he did but how she was treated by the Honor Court process itself.

I can only assume you either know something I don’t, or that you believe with the appropriate level of certainty that Landen Gambill is yet responsible for the Honor Code violation you’ve drawn up. In any event, I’d ask you to consider two things: 

First, prosecutorial decisions shouldn’t be made in a vacuum. Even if you believe Gambill has somehow “abused, disparaged or otherwise interfered” with her former partner to an extent that somehow violates your Code, is she really an appropriate person to target? Admittedly, I have a bias: I believe Gambill told the truth to the Honor Court last year and that she was seriously if unintentionally mishandled. But even if I was less convinced on either issue, I fail to see how your resources and goodwill are well spent with this prosecution. Understanding that you are rightfully independent of the administration in terms of your charging decisions, this one seems only to be drawing more negative attention to a university that, by all appearances, would be well advised to focus less on students struggling to heal and more on those who are harming them. 

Second, just as I’d ask you to consider your case against Gambill in the context of other factors, I’d ask you to carefully consider the entire section under which you’ve charged her. The governing language of IIC 1.c is found in IIC: 

“It shall be the responsibility of every student…to refrain from conduct that impairs or may impair the right of all members of the University community to learn and thrive in a safe and respectful environment; or the capacity of University and associated personnel to perform their duties, manage resources, protect the safety and welfare of members of the University community, and maintain the integrity of the University.” 

Landen Gambill is a credible victim of both devastating abuse and a flawed system of adjudication now rightfully removed from consideration of her type of complaint. The abuse she alleges on your campus is exactly the kind of behavior that impairs rights, threatens safety, mocks respect, and curtails profoundly the capacity of everyone at UNC to learn and grow to her highest potential. By her efforts to seek redress, both personal and in terms of the University response, it is Gambill who is seeking to uphold integrity here, Ms. Ireland. Punishing her on dubious or hyper-technical grounds renders your process absurd, cruel, and feckless.

17 thoughts on “From A Former Prosecutor To A UNC Student Prosecutor: An Open Letter

  1. AnontheGreat

    Howdy, I followed you over here.

    She’s not being prosecuted because she’s been saying “I was raped”(she’s involved with a large group of women who claim the same thing, why haven’t any of them been charged?), she’s being prosecuted because she’s been saying “I was raped by my ex, who I dated for a long time my freshman year, is still on campus, and lives right over there.” That is more than enough information for any friend of hers or his from that period of their college education to figure out who she is talking about, and I’m sure that is the reason her accused/acquitted rapist sent something to the Honor Court saying “Hey, please make her stop calling me a racist in a public sphere”. You seem like a smart guy (obviously, we both went to UNC law), does it really make sense to you that UNC, one of the most progressive institutions in the whole country, would really be trying to shut up a rape victim? Couldn’t there be another reason they’re prosecuting her?

  2. Roger Canaff Post author

    Hello and thanks for your comment. Actually, no where in my post did I claim directly or indirectly that UNC (either the administration or the Honor Court) was trying to “shut up” Ms. Gambill as a rape victim. I understand that some are suggesting that, but I am not. Rather, I analyzed the decision of the Student AG to prosecute Ms. Gambill under the Code and found it lacking, period. As I noted, I don’t have (perhaps) evidence that the student AG has. But given what I know and how the UNC Honor Code reads, I think this is an ill-conceived prosecution. Even if Gambill is being public in a way that, as a practical matter, might lead to some people identifying a person as her alleged attacker, I don’t see how she is “abusing, disparaging or otherwise interfering” with him in a way that is inconsistent with the real controlling language of IIC, which is above the violation (1.c) that she was actually charged with.

    Again, thanks for dropping by-

  3. AnontheGreat

    No worries, I’d rather have this discussion with a lawyer instead of a bunch of folks who have less than zero idea what they’re talking about.

    This is where I got that from: “Again, without making assumptions about what you know, this appears to be in response to Ms. Gambill’s public reflections on the abuse she reported against an intimate partner last year; presumably you suspect that Ms. Gambill’s actions amount to violative behavior toward another student. ”

    From what I understand from people actually on the Court, this was just a form letter they sent to her informing her of the charges that had been laid against her. It’s not really a declaration of prosecution, but that they’re investigating it.

  4. Roger Canaff Post author

    That could be, but I believe what I saw (as reported by Jezebel, the online magazine) was an email from Ireland (Student AG) saying “You have been charged.” What is made clear is that the charge is not an assumption of guilt. But it’s still a charge. Again, I don’t know all the details, but it appears that the Honor Court has determined that enough credible evidence exists with which to charge Gambill. I think the charge in and of itself is a bad idea.

    I understand your concerns about lay jurors- I dealt with them for well over a decade in two jurisdictions (three if you count two in New York- Bronx DA and the AG’s Office). But to me the issue is how the cases are 1) investigated and 2) presented to fact finders. If that is done skillfully, there’s a better chance of a just outcome. I think Honor Courts are a fine idea, but not for the extremely complex demands of interpersonal (especially sexual) violence cases. That isn’t to say that no trained student could ever get it right, or that professionals in the field can’t get it wrong. Pros in the field get it wrong all the time and mishandle cases- hence the efforts at training, etc that people like me seek to get underwritten. But all things considered, I don’t think already overburdened students have the time to really become proficient at judging these types of cases.

  5. AnontheGreat

    Right, but as you know, a charge isn’t a conviction, and it’s highly unlikely that she would be expelled even if she were convicted. That, and the accusation that UNC is trying to shut up her up for speaking out about rape, is what has been most annoying about the coverage of this case.

    I agree with your for the most part about the appropriateness of the honor court as a forum for violent acts, but I like that so much is done in these courts to actually protect the people who come forward in sexual misconduct cases. It’s a lot easier, and there’s no public disclosure of the facts of the case. It’s already so hard for women to come forward for this kind of thing, so it’s good to have a system that makes it easier for them to do. That being said, it’s not perfect and it would be better to have better trained people running it.

  6. Roger Canaff Post author

    I agree with you that what the student AG is doing should not automatically be considered “retaliation” against Gambill. Unfortunately nothing would surprise me, but I will absolutely withhold judgment on that issue. I tend to think that the SAG is just reacting to a complaint. I still think she made a bad call, but I would not fault her for doing what she feels is right if that’s the case.

  7. UNC Student

    I wanted to thank you both (Roger Canaff and AnontheGreat) for having a very interesting discussion, and for posting comments that are both educational and thought-provoking. These kinds of comments are rare (unfortunately), and this was incredibly refreshing!

  8. Roger Canaff Post author

    Thanks very much- both for your comment and for dropping by. UNC is a great place- and it’s hardly the only campus that is struggling with this issue.

  9. David G

    I too want to say thank you for the great discussion. You made a principled argument that relied on the known facts. While I am a bit more hesitant to think that the Honor Court erred in its original judgment based on the evidence they had, I share your feelings that the Honor Court system has acted narrowly and haphazardly in the overall controversy. In the end, I hope that cooler heads prevail so that the guilty may be swiftly punished and the innocent be protected from further pain and harassment.

  10. Think

    I must correct you right away of a few errors made clear in this letter:

    1. UNC does not “prosecute” students, as we are not a criminal court. The Honor System runs differently from any regular court. For one, many are questioning why Gambill did not take her case to more “legit” authorities. Well, first we must all applaud Gambill for being courageous enough to speak out in the first place; many survivors do not do this. While Gambill could’ve gone to “legit” authorities, the school still has a role to play by taking the responsibility to keep it’s campus safe, even when most survivors find it daunting to take their case to “legit” courts.
    As this is an institution of education, in order to progress the aims UNC is dedicated to, we work ensure that the environment is a safe one to learn and to grow. As such, when a charge is brought against a student (always initiated by a complainant, not randomly by the SAG who aims to prosecute students) , we aim to impose sanctions that will educate/correct the behavior, or otherwise prevent the student from being a detriment to the University’s interest in keeping a safe campus. The real reason there is a case here by Gambil and the new charge is because the line is hard to draw. In Gambill’s attempt to speak against her mistreatment by the system, she created an unsafe environment for her ex.

    2. “Second, I have no intention of questioning your decision based on the evidence you have before you, simply because I do not have it before me.” In order words, “I’m going to say I have no intent to question your decision, but now that we’ve brought it up, why don’t I go ahead anyway?” Perhaps a little snide, but I couldn’t resist.

    3. You suspect that Ms. Gambill’s actions amount to violative behavior toward another student. Yet a close friend of Ms. Gambill’s claims confidently (I’ve seen nothing to contradict her) that 1) Gambill has never publicly named the man she alleges assaulted her, and 2) the bulk of her protestations involve not what he did but how she was treated by the Honor Court process itself.”
    I hope you are aware that there are many other ways to specify a person without calling them by name. Ms. Gambill has friends who have friends. Friends who would know if and who Gambill has been dating for a long time and would even know where he lives before Gambill says anything. Friends who would disburse this information without Ms. Gambil needing to say anything herself. You really don’t need much to narrow down. Just say to one of Gambill’s friends, “the boy Gambill’s was dating for a good amount of time and who lives across the street.”
    First, it is necessary to know that Gambill ex was brought to court by Gambill herself. Gambill was mistreated by the system. This is where the real problem lies, as it brings to light the need for UNC to correct their system. The burden of proof in sexual assault cases at UNC (which are no longer investigated by the Honor System–and neither are harassment cases in general for that matter) is “preponderance of evidence” (>50% sure) as opposed to “without a reasonable doubt” (99% sure) that is standard for all other academic and conduct cases, and that is much lower burden of proof than is required in “legit” courts. Even with this, the Court decided that “a violation did not occur”. That is saying, “the evidence and arguments presented do not allow us to determine that a violation occurred” (aka the standard which must be met to determine that a violation occurred could not be met), which is a bit different from a “Not Guilty” verdict that implies innocence.
    You will hear from many advocate for survivors, including myself, that the most important part of a sexual assault case should NEVER be about the end result in court. it should be about the process (gaining strength back and heeling, not depending on a Guilty judgement to regain control over one’s self).
    By speaking out against the system, which has took many actions for correction since last summer, Ms. Gambill specified enough details about her incident to jeopardize her ex’s right to be on campus in a safe environment. Gambill’s ex, probably because of the environment that has been created for him by Gambill, reported to the Honor Court. The SAG’s decision was not made because she believes “with the appropriate level of certainty that Landen Gambill is yet responsible for the Honor Code violation you’ve [she’s] drawn up”. Rather, she believed that, after non-intensive investigation Gambill’s actions MAY warrant a charge, and she let the Court determine judgement after more intensive investigation by an investigator AND DEFENSE. THAT IS HOW THE HONOR SYSTEM WORKS. There’s also been that thing where everybody thinks Gambill will be expelled. Expulsion is rarely ever sanctioned. The letter by the SAG to Gambill simply gave the range of possible sanctions available by the court in any and all Honor Court cases.
    Because the ex was not found to have committed a violation, he is still entitled to rights every other student is entitled to. He, at this point, has not been proven to be deserving of the hateful environment that has been created by Gambill’s militant activist (rightly militant about the cause but so misinformed) against him.
    So–the bulk of her protestations should be based on how she was treated, but there are many more implications that make it hard to draw a definite line between what is right and safe activism. As such, the SAG proceeded with the charge for more investigation.

    3. “is she really an appropriate person to target”–
    This is not an issue of “prosecutorial charge” or targeting. The SAG remains an unbiased party and when a complainant reports something, the SAG, once again, undergoes minor investigation, which includes a meeting with the accused. The SAG determines whether enough reason/ambiguity/complexities/evidence has been presented to move the case forward to subject the case to more intensive investigation.

    4. “Understanding that you are rightfully independent of the administration in terms of your charging decisions, this one seems only to be drawing more negative attention to a university that, by all appearances, would be well advised to focus less on students struggling to heal and more on those who are harming them.”
    Yes, the SAG is independent in their decision making, but these decisions are checked dutifully by administrators to make sure they stick to standardized procedure. If the SAG’s actions are found to be too deviate, they are scrutinized by the administration to ensure that the right course of action has been taken. The University does care about the healing process. The care most about it. I’ve engaged in genuine discourse with them and the experts who advise them. What the Pro-Gambill activism has brought out now is a case where the University is seen as such an antagonistic force to Gambill and sexual assault victims that people do not realize or care to check the procedures and efforts already in place, and that are currently being implemented. If they did, they would realize that these procedures and policies are the same as those they are advocating for. What we need now is less positing faux-odds against each other. We need to start engaging in genuine discourse. This is hard when the student body is up in arms about the hype rather than the real problem and its roots and the solution.

    And I am calling you out because you, as a former prosecutor, sound like an authoritative voice on the matter because you introduce yourself as a credible source, yet you further perpetuate misinformation and ignorance. Please stop, please be informed. And if you will, please use your credible voice to provide a better informed facet to this issue.

  11. Roger Canaff Post author

    Hello, and thanks for joining the conversation. I very much appreciate the thoughtful comment- I presume from how you phrased a few things that you’re on the Honor Court of a part of the system in some way. To that end, I appreciate your insight. I’ll respond briefly to your points:

    1. For brevity’s sake, I limit every post to 700 words, no matter how complex the issue or how passionate about it I am. So I sometimes ‘shorthand’ points and conflate things to save space and/or for a desired effect. I understand that SAG doesn’t prosecute in the way that a criminal prosecutor’s office does. But I think it’s fair to view the job of a SAG in a similar manner to the job of prosecution, at least philosophically.

    2. Snide never bothers me- I act that way all the time. But- believe it or not I do choose my words carefully. What I promised was not to question her decision “on the basis of the evidence.” I did not do that. Rather, I questioned it on the two bases I listed- prosecutorial discretion (I’ll get to that in a second) and the letter of the Code under which Ms. Gambill appears to have been charged.

    3. Of course I understand that Gambill could conceivably violate IIC 1.c w/o actually mentioning a name. Regardless of that point and others you raise, though, I don’t think Gambill’s actions amount to an Honor Code violation of 1.c given the guiding language of IIC. As for how the Honor System works, I can only tell you that what I saw reported in several sources was that Ms. Ireland sent two emails to Ms. Gambill. The first stated that a complaint had been filed against her. The second stated that Ms. Ireland (presumably) had, indeed, considered at least the initial facts and circumstances and that she had decided (i.e., used her discretion) to forward the complaint on the HC. I completely understand that the SAG has to respond to complaints objectively, but what I read certainly made it seem that Ireland exercised discretion. I would hope so; her job as SAG should entail discretion, or it’s a waste of a position. Assuming she examined the facts she had before her and the code, and assuming those facts aren’t significantly different from what I know (a possibility I did account for) then I disagree with Ireland’s decision. If I’m still incorrect about her decision making authority or the process, please do let me know. Further, I never mentioned the risk of expulsion (as some in the media and “twitterverse” have done for the exact reasons you point out) I know it’s highly unlikely and not realistic. I like to agitate, but I do not lose a sense of perspective or try to incite on something highly unlikely.

    3.5 (You actually list three twice; no worries, I do that all the time as well). Again, if I’m incorrect about the amount of and/or kind of discretion that a SAG has, I stand corrected. But what was reported was that a determination was made- discretion was exercised. I disagree with it, again with the strong caveat that I might not know everything the SAG knew or knows.

    4. I have no doubt that the University appropriately supervises the HC process. As for whether what Gambill is doing constitutes a net negative in terms of the discussion being had at UNC, I will defer to the course of events. Remember that 1) some fairly serious charges have been raised regarding pressure on a administration official to make sexual assault numbers seem lower, and 2) that Gambill and, I believe, 63 other women are suing UNC over what they consider to be a substandard response to their victimization from the University. UNC is a great place; most other colleges and universities have similar problems- many of them more grave. But I’d suggest that Gambill is not creating a furor but rather simply reflecting and releasing one. Sometimes “discussions” need to allow for venting, at least at first.

    Finally, I understand that HC did not find Gambill’s respondent (the ex boyfriend) guilty or responsible for an HC violation despite its lower standard of proof. But as I’ve said in a few places, given what I know of what they considered and the questions they asked Gambill herself (seriously irrelevant and offensive ones), I give their decision no weight in terms of ascertaining what actually occurred. I believe Landen Gambill was abused as she says she was. I believe she was further injured by the response she received. I don’t blame her for being angry. We’ll see what happens from here.

    Again, thanks for your thoughtful comment. Drop by any time.

    RAC

  12. AnontheGreat

    It’s not her lawyer, it’s HIS lawyer. And I think it speaks to the weakness of her case that she could not convince a single one of the five adjudicators that it was more likely than not that she had been raped.

  13. Roger Canaff Post author

    I don’t think that adjudication process proved, disproved or cast any light on anything. They just didn’t know what they were doing. They considered irrelevant factors and demanded unreasonable answers from her on irrelevant issues.

  14. Christine

    Hi there,

    Thank you for the legal analysis. I have a quick question: how did the HC have her medical records? Isn’t that a HIPPA violation?

    Thanks

  15. Roger Canaff Post author

    Hi, Christine-

    Thanks for stopping by. Distribution of HIPAA records without either 1) patient authorization or 2) a legal exception (a bunch of them are found in the Code of Federal Regulations) would be a violation of HIPAA. My guess is that, when a complainant asks for the HC to adjudicate something, they sign releases for information including a standard HIPAA release. So, HC probably had her medical records with her authorization- but that’s just a guess. I don’t believe the HC process would be covered as a court-ordered exception to HIPAA otherwise (in other words, I don’t the HC has any sort of subpoena power that would compel release of medical records).

    Roger

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