Saturday, October 26, 2013

Ithaca Lawyer with a College Judicial Administration Action: Is there Really a Presumption of Innocence or a Presumption of Guilt?

Sometimes it feels this way with
Administrative Actions.


For a great many years I foolishly believed that in the military you were presumed guilty till proven innocent. That military justice was somehow a world away from civilian justice. That the Courts there worked different. I thought that's the way it was in the armed forces. I do not know where I got this idea or belief but it must be part of our common culture somewhere? A great many of our ideas are completely false and erroneous.

My wife and I were raised in different types of households during a similar era. The time where children should be seen and not heard. Where little boys and girls did as their mommies and daddies told them to do. Believed as their moms and dads told them to think. As a carry over, even to believe whatever our government told us was true or not true. And Never to Question or Challenge Anything, least of all our superiors (our elders). Kinda reminds me of South Park and why I love Cartman's "Respect My Authority!"

Movies and TV of our generation were wiped clean of controversy, and of any challenge to the status quo. So much propaganda (mostly BS) it would spin your head. Looking back at that time we may laugh but in some things and places it still goes on.

The end game, raising intelligent people

The New Generation of Challengers

Well my wife and I raised our four children to challenge authority, to question, to confront, and to learn the truth about whatever was in front of them. This has proven to be a blessing and a curse of sorts. They confront us at every turn, and about everything. We believe it is better to be this way than to raise sheep. I do not want them to blindly follow, and to blindly believe anyone, including me.

We have a Presumption of Innocence

You are presumed INNOCENT even if "charged" with, and alleged to have committed a crime. It exists in the Uniform Code of Military Justice Courts, called Court-Martials, and the Jury Instructions of our Civilian Criminal Courts as well. It exists for all of US but is it accepted and applied in College or University Judicial Administrative Actions? Are you presumed innocent there?

Military and Civilian Criminal Courts have a High Proof Level

You must be proven guilty beyond a reasonable doubt in both these Courts. This is because you are facing the highest of punishments: threats to your life, and to your liberty.

Administrative Actions have Low Proof Levels

With ALL administrative actions, whether it's the NYS DMV threatening your license to drive a car, the NYS Board for Professional Medical Conduct threatening a license to practice medicine, or the NYS Education Department Office of the Professions threatening a license to be a dentist they will all have a civil burden of proof. This is also true for a JA (judicial administration) complaint.

Do the SUNY colleges, Cornell University, TC3, or IC (Ithaca College) have the same basic and low standard for their JAs? Unfortunately, yes.

Whatever you choose to call it, whether substantial evidence or clear evidence or preponderance of the evidence, it is a nominal standard of proof.

NOW to answer to the posed question: Sometimes it is as if you are guilty until proven innocent because of this low administrative level (burden) of proof. The bar is set so low, it is an easy hurdle. Being JA'd you may feel in a box (the container of the guilty), and you must fight your way up and out of it.

Does Probable Cause = Probably Guilty?

Remember it only takes (requires) probable cause to file a complaint against you whether in a criminal court or a civil court or any college administrative action. Somebody thinks or believes you did something. But did you? And did you truly do it to the level or to the extent they say you did? There are things by degree and severity but unfortunately administrative actions feel very black/white with no room or time for shades of grey.

PC means reasonable and trustworthy information that you did something. Is that enough to sustain the further (supposedly higher) civil burden to take a license or cause an expulsion? Do people, whether on a jury, or on a panel, somehow get this whole thing mixed up? Do they believe, Well s/he was charged (they had some info they did it) so they MUST have done something?

Take Away Advice for Administrative Actions

In any administrative action (complaint) be ready and prepared to explain, to fight, to advocate, and to present evidence to balance out the picture of not only the event but also who and what you are. Give them context, do not let them paint you black and white because you are not either of those.
If they allow you an advisor or a representative avail yourself of help. Bring exhibits, documents like pictures can be powerful allies to your position.

Do not proceed quietly to relinquish anything you have worked hard to earn and deserve. All of us are human and all of us make mistakes. Picking yourself up and learning are part of life.

Lawrence (Larry) Newman, D.C., J.D.

Originally, born and raised in Brooklyn, NY. My father was a NYS corrections officer, and my mother a waitress. I now live in Ithaca, NY with my wife (of 25 years), and four kids. I have a B.S. in Human Biology, Doctorates in Law and Chiropractic, and a Post Graduate in Acupuncture. I practiced as a Chiropractic Physician in Florida from 1986 to 1995. I graduated law school in 1997, and went on to practice trial law in FL, NY, NJ, and PA. I love practicing criminal defense and injury law within the Finger Lakes Region of New York State.

Over 90% of the cases that I take on are New York DWI defense cases. I am certified as a breath tester by the Department of Transportation, the guidelines of the International Association of Chiefs of Police (IACP), and the National Highway Traffic Safety Administration (NHTSA). I am certified in Field Sobriety Tests, and an active member of the National College of DUI Defense (NCDD). My online materials include over 450 blog posts, dozens of articles, and over 435 informative videos on my youtube channel.

I have co-authored Strategies for Defending DWI Cases in New York, in both 2011 and 2013. These are West Thomson legal manuals on New York State DWI defense, and focus on the best practices for other lawyers handling a New York DWI case. Included in Strategies for Defending DWI Cases in New York are materials I provide clients, such as my fee agreement and ways to avoid misdemeanor probation. I was selected by Super Lawyers as a Upstate New York 2013 Rising Star in DWI/DUI Defense based on my experience, contributions, and professional standing.