WSU’s senior associate attorney general Danielle Hess emphasizes in her response that Barber struck another student twice – once while on the ground -- at the July 23 off-campus party that turned into a melee and landed Barber and second-year freshman lineman T.J. Fehoko in front of the WSU Conduct Board. In addition, the infamous “beef jerky” event of March 2015 is prominently noted in the WSU filings to establish “that Mr. Barber had a previous history of threatening, harassing behavior.” The Pullman Police report from that incident is included in the response.
Cougfan.com has requested copies of all 54 pages of WSU's filing but obtained more than a dozen of them Thursday evening.
WSU says in its response that Barber’s legal claims about lack of due process during the Conduct Board process are irrelevant because, “Student conduct proceedings are not criminal proceedings, and students are not entitled to all the procedural safeguards accorded criminal defendants” and that the appeals process provided by the WSU Conduct Board “went far beyond constitutional due process requirements as set forth in the case law.”
In regard to Barber’s challenge that WSU's cross-examination failed to ask all of the questions he submitted, Hess states that Barber and his advisor, WSU football staff member Antonio Huffman, are mistaken, writing, “Notably, neither Mr. Barber nor his advisor raised this issue of unasked questions to the University Appeals Board. This is because it did not happen."
WSU also states that Barber’s claims of bias are without merit and that the well-publicized Conduct Board comments about a “holding cell” and Barber looking “angry” are taken out of context. In a declaration by Adam Jussel, WSU’s assistant dean of students and director of the office of student conduct, he recounts the “holding cell” comment his way:
“WSU's (student conduct hearing) process is non-adversarial and allows the parties to be in separate rooms while the other party is providing testimony. This involves some changing of rooms and some delays in between witnesses. During one delay, the following exchange took place, as documented on the audio recording:
- 12:24-Jussel explains shuffling down the hall
- Chair: "Is there anything else you want to tell us?"
- Jussel: "They aren't on the line right now, so I shuffled them down the hall"
- Chair: "Oh okay"
- Complainant: "Well I guess just back on the caffeine pills . ... "
- Jussel: "Just a second, we're going to have to move them back down"
- Other Board member: "He's already in here, put him in the holding"
- Chair: "Put him in a holding pattern"
- 12:40 -Other Board member: "Guess it's better than a holding cell"
- Chair: "Holding office"
- Other Board member: "holding space"
The events of July 23 melee also are recounted by Jussel. Among his reflections:
Mr. Barber testified that earlier in the evening, the complainant tried to fight him and some of the other football players who were there. He said he saw people at the party doing cocaine. At the time of the assault, he said he felt someone push him from the side, which made him feel threatened, and he reacted to it by punching the person. He stated he did not know who the person was that he punched. Mr. Barber testified that he didn't know the residents wanted them to leave and he didn't remember hearing any fireworks. He testified that he had seen the video of the fight, and he acknowledged he was the one wearing the black shirt and red shorts. When the Conduct Board Chair asked Mr. Barber whether it was justified to hit the complainant again after he was on the ground, Mr. Barber answered "yes ma'am." He said he was just trying to protect himself. When asked if he still felt in danger once the complainant was lying on the ground, Mr. Barber answered yes. He said he just didn't think and felt threatened.”
Sources who requested anonymity said Barber believed the complainant was hyped on cocaine and therefore a physical threat. In documents that Barber’s attorney field Wednesday, the concussed student said he was snorting crushed caffeine pills, not cocaine.
Barber is one credit shy of a degree in criminal justice and five weeks from earning his diploma.
Advocates who believe he did not receive due process or equal treatment are planning Friday morning to ask the WSU Board of Regents to lift Barber’s suspension and reinstate him so he can complete work on his degree.