Duke’s “Independent Investigator” Erodes Due Process

The Obama administration’s Task Force recently contained a jarring recommendation to minimize the minimal due process protections that accused students on campus possess. Some schools, the report noted, “are adopting different variations on the ‘single investigator’ model, where a trained investigator or investigators interview the complainant and alleged perpetrator, gather any physical evidence, interview available witnesses–and then either render a finding, present a recommendation, or even work out an acceptance-of-responsibility agreement with the offender.”

How might such a process work in practice–keeping in mind that universities, which are under extraordinary governmental and activist pressure to increase guilty findings, hire the investigators? It’s surprisingly difficult to answer this question, since few (if any) colleges publicly identify the criteria they use for outside investigators, or even whom they hire for such a task. But given the general attitudes toward due process on campus, it’s hard to imagine that many of these “investigators” should be viewed as independent in any meaningful way.

Consider the Duke case about which I wrote last week. To review: the incident involved a finding of sexual assault against student Lewis McLeod on grounds that his accuser was so incapacitated by alcohol that she could not give consent. This outcome occurred after the police had declined to pursue charges–suggesting that they didn’t believe probable cause existed.

Duke concluded differently, based on the testimony of the accuser (which for police had not sufficed) and the findings of the “independent investigator” hired by the university, Celia Irvine.

Irvine’s background yields few reasons to suggest that her capacity as a criminal investigator exceeds that of police officers. Irvine worked for a dozen years with the New York Police Department, but her résumé reveals no record in conducting criminal investigations. She has a Ph.D. in clinical psychology from Duquesne; her undergraduate degree is in psychology and French. Other than her service at Duke, Irvine had worked at two colleges (both before her time at the NYPD). She served as an instructor at Duquesne, and then she worked as a counselor at Stony Brook. At neither university did she appear to have conducted investigations into sexual assault claims.

Befitting her education, Irvine’s work with the NYPD focused not on criminal investigation or sexual assault but instead psychological evaluations and treatment. According to her LinkedIn page, she dealt with such matters as psychological assessment, fitness-for-duty evaluations, and trauma counseling. Her professional website indicates a continued interest in such matters. Her current practice, based in Chapel Hill, focuses on “the healing relationship,” working holistically by “incorporating ideas from philosophy, eastern and western spiritual traditions, and various psychological theories.” The website contains no reference of her having trained to conduct sexual assault investigations.

The key element in the McLeod case was the accuser’s level of intoxication (neither media reports nor the available findings suggest that the accuser had a blood alcohol test). One area of dispute revolved around a taxi ride taken by McLeod and the accuser from a bar to his dorm room. The accuser claims she said she wanted to go back to her dorm room; McLeod denies this. The taxi driver presumably would be a neutral arbiter of the dispute, but Irvine, for reasons Duke has not revealed, does not appear to have attempted to contact him.

Irvine did not respond to a request for comment about her rationale for not attempting to interview the taxi driver, or for more detail about her experience with the NYPD and criminal investigations.

Irvine appeared similarly uninterested in interviewing a male Duke student who had been at the bar with the accuser earlier on the evening of the incident. Indeed, in a discussion with the accuser the investigator reviewed possible witnesses, and the accuser gave consent for one of the witnesses to be interviewed–suggesting the accuser, nor Irvine, was running the investigation. Irvine appears to have interpreted McLeod’s uncontroverted statement that the accuser was drinking as a concession that McLeod believed the accuser was intoxicated, even though McLeod had said no such thing.

Duke also used Irvine’s report as a way of essentially nullifying McLeod’s right of cross-examination. The only “prosecution” witness to testify at the hearing was the accuser; the versions of other students (plus a critical anonymous witness who offered supposed first-hand guidance on the accuser’s intoxication level) were filtered through Irvine’s report.

Flawed procedures beget flawed results. That could be the story of Duke and sexual assault cases since 2006.

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