Vanishing Immunity Deal Throws More Steubenville Players Back in Spotlight

Ohio's attorney general has revealed that student witnesses during a preliminary hearing never got an immunity deal, throwing open the possibility that testimony could be used against at least three more members of the Big Red football team. Who are they? And what does it say about that alleged cover-up?

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Ohio's attorney general has revealed that student witnesses for the prosecution during a preliminary hearing in the Steubenville rape case had not been granted immunity, rebuking statements from defense lawyers for the two Steubenville High football players accused of assaulting a 16-year-old girl — and throwing open the possibility that testimony could be used against at least three more members of the Big Red team.

Attorneys for the two defendants, Steubenville quarterback Trent Mays and wide receiver Ma'lik Richmond, maintain that the three teammates who testified against them at a probable cause hearing in October "were granted immunity in exchange for their cooperation." But according to a report Thursday from Ohio Valley's Wheeling News-Register, Ohio Attorney General Mike DeWine is now denying that the three witnesses, all of whom may have photographed or videotaped the alleged victim on the night in question, had been granted any such leniency by the court: "We've made no deals with anyone," he said. "We have offered nothing, made no promises to any witness in this case," DeWine went on to tell local WTOV. "No deals have been cut with anybody." The three boys were identified by the local Ohio press following the hearing on October 12 of last year as Mark Cole, Evan Westlake, and Anthony Craig, but their involvement with the alleged incident has been largely overshadowed by the presumption of an immunity deal. On Thursday the Steubenville school board issued a statement urging student "witnesses" to come forward.

In a letter to the three players just days before they testified against their friends and teammates, DeWine wrote that each player "may not have conducted himself in a responsible or appropriate manner, his behavior did not rise to the level of any criminal conduct.... Therefore, we will not prosecute your client for his actions on August 11-12, 2012."

The fallout over the testimony remains unclear, and a sprawling investigation that now involves the FBI is ongoing — the trial for Mays and Richmond is scheduled for February 13, though lawyers have pushed to delay or even move the next hearings — but the discrepancy over an immunity deal raises new questions: Who are the three witnesses, and what do they know about that night? Could they somehow be implicated in the alleged assault or other crimes? And does their in-trouble-out-of-trouble-and-back-in-trouble status point to signs of a cover-up that outside hacking groups have alleged since they inflamed the case nationally last week?

The Not-So-Immune Witnesses

Witness #2: In a lengthy New York Times story that first outlined the October testimony to a wide audience, one of the witnesses is said to have driven Mays and the alleged victim in his car from one party to another, and taken video as "Mays proceeded to flash the girl's breasts and penetrate her with his fingers." The student said he deleted the video after showing it to at least one other person. Information collected with the help of the hacking collective Anonymous and published by the site LocalLeaks as part of the so-called Steubenville Files has connected this testimony with a student it identified as Mark Cole, a Steubenville running back. The student who deleted the video said "he was with the alleged victim and the two defendants and another juvenile for most of the night," according to notes on his preliminary testimony gathered by WTOV TV in Ohio, in which he is referred to as "Witness #2." The notes go on: "The state said the video had been deleted, could not be retrieved and that because of that, Witness #2 was not facing charges."

Witness #3: The testimony notes say that this witness "was present at the first party and drove to the second party, but not in the same car as the other witnesses and the defendants." The witness testified that he "he saw both defendants carry the alleged victim out of the house by her hands and feet," according to the notes, and that "he took a picture of both defendants with the alleged victim," which would seem to reference the Instagram photo at right that has come to be a symbol of the controversy over the case. (The person being dragged in the Instagram photo has not been verified, like much of the details to emerge as news of the case has spread.) The hacking files match this testimony with that of Evan Westlake, a wide receiver on the Steubenville football team whom LocalLeaks, in addition to the Steubenville Files published on Thursday, says filmed the now viral video of another Steubenville athlete, identified as Michael Nodianos, making fun of the alleged victim in lurid detail. "If [Westlake] was so stunned," asks LocalLeaks, "then why did he stick around after the attack and film the Nodianos video below?"

Witness #5: The Times story says this witness was an athlete and "Mays's best friend," who urged Mays to stop as Mays "exposed himself" and "Richmond was right behind her, with his hands between her legs, penetrating her with his fingers." The WTOV court notes continue: "When asked why he did not stop them, Witness #5 answered 'I wanted to get out of there. I didn't know what to do. I was stunned.'" The Steubenville Files identify a witness who gave such testimony as 18-year-old Anthony Craig, also on the Steubenville football team, and claim in the Thursday additions to the LocalLeaks site that he "admitted to having a relationship with the victim." The hackers, whose information comes from multiple anonymous sources and has not been corroborated, continue: "Craig said he took a picture of the incident in case the victim didn't know what was happening. He said he later deleted the picture from his cell phone. Craig testified Mays sent him a naked picture of the victim the next day."

The Not-So-Thorough Investigation

The other two witnesses in the preliminary hearing were connected with law enforcement: Steubenville PD detective J.P. Riegaud, who testified that videos and photos "weren't the only guide" in his investigation; and Joann Gibb, a computer forensic expert with the Ohio Bureau of Criminal Investigation who recovered two naked photographs of the alleged victim — but could not recover deleted photographs and videos from 15 cellphones and two iPads confiscated by the local Steubenville police.

The local cops had been frustrated since the alleged victim's family came forward — the Times reported that Steubenville Police Chief William McCafferty "for weeks" went on and "pleaded to the other partygoers to come forward with information about the possible sexual assault. Only one did, he said."

Enter Jefferson County Sheriff Fred Abdalla, who has been at the center of multiple allegations from LocalLeaks and Anonymous — most prominently that "he assisted the local police department in hunting down people who attended these parties at which the girl was attacked and confiscating their cell phones and other electronics." The hackers have surmised that Abdalla is involved in a larger scandal, reaching from the Big Red football coach and beyond, and they allege that he covered up evidence from the beginning to protect more members of the football team. In many ways, LocalLeaks and Anonymous got involved solely to find more potential suspects; police and attorneys say no students other than Mays and Richmond remain charged in connection with the night of August 11, 2012.

Whether Abdalla's jurisdiction applies to the ongoing investigation remains unclear, with the FBI, the state attorney general, and the Steubenville community looking for clues. Compounding their efforts are critics throwing around charges in the court of public opinion, against young high-school football players they don't even know — from aiding and abetting, to failure to render aid, to obstruction of justice and even child pornography, with few confirmed facts and many under wraps by the many law-enforcement organizations. But Abdalla has insisted that no one else relating to the case will face charges. From MSN News's account of an Abdalla interview this past weekend, when he appeared at an Occupy Steubenville protest organized by Anonymous:

Jefferson County Sheriff Fred Abdalla, accused of shielding the popular football program from a more rigorous investigation, told reporters no one else would be charged in the case, just moments after he addressed about 1,000 protesters gathered in front of the Jefferson County Courthouse.

Whether the attorney general's rebuke of the reported immunity deal changes Abdalla's emphatic statement also remained unclear, as did whether there might be some sort of immunity deal the attorney general isn't privy to.

On Thursday the Steubenville school board issued a statement urging students and witnesses to come forward with more information on this and future cases. According to the AP, it reads:

Going forward, we will expand these programs and involve the community with the goal of creating a meaningful dialogue about these difficult issues, how we can deal with them, and how we can prevent them... By remaining silent, witnesses thwart the work of investigators which may ultimately prevent justice from being served.

Sheriff Abdalla's office and lawyers for the defendants have not responded to requests for comment from The Atlantic Wire. Witnesses in the case are under a gag order as the trial continues. DeWine, the state attorney general, refused to elaborate on evidence, saying, "We're not going to try this case in the media. We're going to present our case in court, and the judge will make a decision."

This article is from the archive of our partner The Wire.