The First Case: Parallel Proceedings
My first college student defense client was a university student who had been arrested for assaulting a taxicab driver. To my surprise, the case quickly evolved into a “parallel proceedings” case. I had been familiar with parallel proceedings in the context of white-collar defense where a corporate executive or a corporation can face simultaneous criminal and civil investigations—with a fraud case, for example, being investigated criminally by the United States Department of Justice and, simultaneously, being investigated civilly by the Securities and Exchange Commission (SEC). I did not expect, however, the same situation to occur in what originally appeared to be a straightforward criminal defense case.
The criminal charge for my student defense client was “simple assault.” As a misdemeanor, simple assault carries a maximum jail sentence of no more than six months, though that would rarely be imposed on a first-time offender like my client. The university student conduct code violation allegation that followed shortly thereafter carried a maximum penalty of suspension or expulsion. I quickly realized that, of the two potential penalties, the university penalty carried far more devastating consequences for my client. The university discipline proceeding also proved far harder to defend.
The student and his girlfriend had been coming home from dinner with the girlfriend’s parents. All in attendance had had wine to drink. The student argued with the taxi driver and claimed he was over-charged. The driver then attacked my client and his girlfriend. The police arrested the student and the girlfriend because they believed the word of the taxi driver over that of some college students who seemed as though they had been drinking. Shortly after the arrest, the university notified my client that he would face student conduct code charges. Convinced that he had only acted in self-defense, my client looked forward to explaining what had happened before the hearing panel. He expected full exoneration.
Zero Tolerance Means No Self-Defense
The student conduct code in question specifically prohibited assault; it also set forth a zero tolerance policy for violence “of any kind” on campus or off campus. I was not entirely sure what the “of any kind” modifier meant legally,. I soon learned that zero tolerance meant that even a claim of self-defense was unlikely to succeed.
We put on witnesses, including a professional investigator/former police detective to establish that, in fact, the taxi driver had been the aggressor and my client was simply defending himself and his girlfriend. While the panel appeared to agree, they ultimately found the student responsible because the university had a zero tolerance policy for any violent conduct. To the school, self-defense did not matter. The student was suspended.
In the criminal case that followed, we crushed the prosecution. When the 911 call was played and the taxi driver could be heard cursing at my client and my client could be heard yelling “Don’t you touch her!”—the judge threw out the prosecution’s case and dismissed all charges against my client and his girlfriend.
We brought this fact back to the university and appealed the student’s suspension. The school denied the appeal, claiming that it offered no new evidence.
This was lesson one: in student defense cases, the criminal proceeding is not always the more serious case. This turns conventional wisdom on its head. In most parallel proceedings, the criminal proceeding is the one of paramount importance. The lawyer must protect the client from criminal liability at all costs, and civil cases are often stayed by courts pending the outcome of the related criminal case. In a college student defense case such as my first one, however, the more grievous potential for harm is often the university discipline case.
I learned the hard way that winning the criminal defense battle could still result in losing the war for the student’s academic and professional future.