College withheld exonerating evidence from student who went to prison for sexual assault

Second jury cleared Darold Palmore after appeals court deemed accuser's sexual history relevant to credibility. He spent 16 months in prison.

Published: October 15, 2021 5:18pm

Updated: October 17, 2021 11:40pm

A student who spent 16 months locked up before a second jury cleared him of sexual assault is now trying to hold his public university accountable for the role it played in his prosecution and destruction of his reputation.

Darold Palmore is suing Clarion University and its police department, as well as the county prosecutor, for anti-male discrimination, due process violation, defamation, false arrest and malicious prosecution.

Though it's not an explicit cause of action, Palmore is also alleging racial discrimination. He's black and his accuser is white, a demographic dynamic in several lawsuits against colleges for alleged Title IX kangaroo courts.

The campus police officers who cornered Palmore in his dorm room were also white — and one of them is on the record promising to withhold potentially exculpatory evidence from Palmore.

The "smoking gun," as Palmore's public defender called the email, mysteriously appeared in a discovery packet from the district attorney. It wasn't listed in the index, and his first lawyer had missed it. Palmore told Just the News he wonders if a Good Samaritan in the DA's office slipped it in.

An older student with a criminal record when he entered the public university in 2015, Palmore was hoping to study law. He's getting an unconventional legal education now, representing himself in the civil case against Clarion.

"I have been unsuccessful in finding a[n] attorney willing to take the case on contingency," he wrote in an email. "And I have no money to hire one." Two attorneys and a paralegal he knows helped him draft the complaint, filed in mid-June.

Palmore has overcome long odds before. Public defender Erich Spessard, whom the student described as "Batman," convinced a Pennsylvania appeals court in 2018 to overturn Palmore's conviction because he wasn't allowed to share his accuser's relevant sexual history with a jury. 

In the second trial nine months later, the transcript shows jurors deliberated 29 minutes before exonerating Palmore.

The acquittal also removed his "sexually violent predator" status, which Palmore blamed for sending him back to jail after eight months on parole. SVP status kept him from finding work and being able to pay for required lie-detector testing, and because he filed for indigency in the wrong court, it was denied.

The university declined to comment on his claims, citing pending litigation. Just the News shared the suit with the university in mid-August but the federal court only ordered that it be served on the defendants a month later. Clarion still hasn't made an appearance in court, though the DA's office did last week.

Palmore wasn't the first black student at Clarion to risk self-incrimination in a criminal proceeding if he defended himself in a Title IX proceeding, which lacked basic protections before the Trump administration imposed new regulations last year.

He said much of his Clarion case is based on a similar lawsuit by Tafari Haynes, the first such case to be heard by the 3rd U.S. Circuit Court of Appeals.

While they made up less than 6% of the student body, blacks were a majority of the students tried for sexual misconduct at Clarion, according to an essay on Haynes' appeal by Brooklyn College professor KC Johnson, who chronicles Title IX litigation.

The university had rushed to adjudicate Haynes before a DNA test that led the DA to drop the case. "It was an awful case factually — the school really railroaded" the student, Johnson told Just the News. 

The appeal ended anticlimactically when the 3rd Circuit pushed mediation on the parties, who settled confidentially in 2019. Johnson said he suspected the panel was split "1-1-1" after oral argument.

'This is the crap I have to deal with'

Palmore argued his accuser may have invented the assault to convince her boyfriend, a prominent black student, not to believe that he caught her in a sexual encounter with his roommate. Her version was that Palmore tried to sexually extort her to keep the secret.

Katelyn Hosler, whose name appears unredacted in criminal filings and Palmore's lawsuit, filed a Title IX complaint hours after he messaged her boyfriend on Facebook, he claimed. Just the News couldn't find contact information for her.

When Clarion finally gave Palmore the date range for the alleged assault, he requested security footage from Matthew Shaffer, Clarion director of judicial affairs, to refute Hosler's claim that he was in her residence hall. Palmore also copied Clarion Cpl. Shane White.

"This is the crap I have to deal with, with this guy," White wrote in a Dec. 3, 2015 email forwarding the request to Tracy Park in the DA's office. "I told him that he is getting nothing from me," White said, either referring to Shaffer or Palmore. 

White testified that he never reviewed the potentially exculpatory video because Hosler identified Palmore as her attacker. Due to the video preservation window, which lasts 30-60 days, the footage Palmore sought may have expired "on or about the day" he was criminally charged, his lawsuit says. That was a week after his scheduled Title IX hearing, which never happened.

By contrast, the officer had reviewed security footage in a different sexual assault investigation around the same time, Spessard said at a March 2019 hearing to dismiss the criminal case. (White claimed it was because the complainant didn't know the alleged attacker's identity.)

The White email, which had just been discovered, "is specifically an admission of suppression" of evidence that Palmore believes was highly favorable, and thus a violation of due process that justifies throwing out the whole case, Spessard argued.

Court of Common Pleas Judge James Arner disagreed, saying the footage of dorm entrances "could not have confirmed" that Palmore was not in Hosler's room. White did not commit bad faith because he didn't know "whether it had any evidentiary value" to Palmore.

The student, who is pursuing a degree in an online program, hopes the email will prove as useful in his civil case as it was in his second trial. It shows "clear hostility" against him by the university police department and negligence at best by the DA.

'They just won't do it'

Over Palmore's objections, the university initially scheduled its hearing for shortly before he was criminally charged. He refused to participate, which would "jeopardize his constitutional rights in the pending criminal case," the suit says.

Colleges often use this maneuver to force accused students to choose between defending themselves in a Title IX proceeding, where they have fewer protections, and a criminal proceeding, where their statements from a university proceeding are admissible.

Typical of university practices in the mid-2010s, Clarion did not allow cross-examination of accusers or lawyers to actively represent accused students. The Trump administration's Title IX rulemaking banned these conditions last year.

Since his exoneration, Palmore has been pressing Clarion to give him a conduct hearing, represented by counsel, to clear his record. Two years of email correspondence he shared with Just the News, right up to two weeks before he filed suit, show Clarion resisting.

"Do you intend to return to Clarion University to pursue your degree if the outcome of the hearing would allow?" Tyler Kitzmiller, assistant director of judicial affairs, wrote in a July 23, 2019 email. Palmore responded that he'll decide once he finds counsel who "understands the intricacies of Title IX deliberations."

He told the school a year later he did not plan to return and that "counsel would have to be present and able to litigate the proceedings" if he participated in a conduct hearing.

"It is unnecessary at this time to move forward with a hearing if you are not planning to return as a student," Sarah Zerfoss, assistant director of student conduct, wrote in a May 28, 2021 email. Palmore responded by demanding a refund of his fall 2015 tuition.

"They have effectively refused to give me my school hearing after I was found not guilty," Palmore told Just the News. "When I was originally found guilty they pressed me and my attorney hard to have it. Now they just won't do it."

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