Warner's attorney, Steven Light, wrote a letter to UND General Counsel Julie Ann Evans on July 28, 2010, asking for a rehearing in light of this unusual turn of events. UND's student code allows re-hearings with no time limit when substantial new information unavailable during a prior hearing is uncovered. Yet on August 26, then-UND Vice President for Student Affairs Robert H. Boyd denied the request, erroneously calling it an "appeal" – rather than a request for re-hearing - and disallowing it because more than five days had passed since the guilty finding. For the record, most of my eighteen year old “Introduction to Criminal Justice” students understand the different between a motion for retrial, based on new facts, and an appeal, based on old law.
On May 11, 2011, my good friends at FIRE wrote UND President Robert O. Kelley pointing out the university's serious procedural errors and its failure to reconsider the case. FIRE added an even more important point; namely, that Warner's name could not be cleared by the courts so long as his accuser persisted in her flight from the law. FIRE further noted that it was unfair for UND to deny Warner a rehearing simply because his accuser had not been convicted of lying to the police. That conviction is not likely so long as she is a fugitive from justice not meeting her legal obligations.
On May 20, University Counsel responded to FIRE - once again denying Warner's request for a rehearing. Evans admitted in the letter that the university used the very same evidence to find Caleb Warner guilty of sexual assault that the police and prosecutor used to charge his accuser with lying to law enforcement. Evans further insisted that the fact that Warner's accuser had not responded to the charge against her was meaningless and that she could not even assume that his accuser knew about the charge against her. Evans states in part: “Clearly, the only ‘new testimony’ would be that of the opinion of Officer Vigness, i.e. that the victim lied to the police. This would not be substantial new evidence. This would be an unproven allegation.”
But since there has been an arrest warrant issued there must, at minimum, be probable cause that Warner’s accuser lied. According to the 4th Amendment to the Constitution – made binding on North Dakota through the Fourteenth Amendment - no warrants can be issued on less than probable cause. But that is not enough for Evans. She wants the charges “proven” under the standard of “proof beyond a reasonable doubt.” The situation may be roughly summarized as follows: The justice system must abide by “proof beyond a reasonable doubt” when dealing with accusers. But UND may use “preponderance of evidence” when dealing with the accused.There is no indication whatsoever that Evans has contemplated the possibility that there is something very wrong with the UND judicial system – legally or morally speaking. Her smug arrogance and condescension provide little hope for a quick remedy to an obvious injustice. Nonetheless, I would strongly urge everyone reading this column to call President Kelley’s office and demand justice for Caleb Warner. And UND alumni should also write Kelley’s office and announce that they are ceasing all donations until Caleb Warner is both cleared and compensated for his mistreatment at the hands of the UND administration. Those interested in doing so may simply follow this link: http://und.edu/president/.