UPDATED: National review board declines to ban Randall Smith from coaching swimming; lawyer says ruling “vindicates” Smith



Last modified: Monday, January 12, 2015

In a 2-1 vote revealed this week, an independent panel ruled there was not enough evidence to ban Randall Smith, 61, from coaching in the wake of allegations he raped a teenage swimmer on the Greater Holyoke YMCA Vikings club.

Smith’s Northampton attorney, Michael Aleo, said Saturday the decision was good news for his client, although he said the former coach’s life has been devastated and his livelihood ruined by the allegations.

“The USA Swimming decision further vindicates Randall Smith and demonstrates that the allegations cast against him are false, as he’s always maintained,” said Aleo, with the Northampton law firm Lesser, Newman & Nasser.

“It’s the second time that an impartial tribunal has come to this decision,” Aleo said. He was referring to a decision by the state Department of Children and Families which also found insufficient evidence to support allegations against Smith.

The allegations were brought in 2012 by Anna Strzempko, 20, a former swimmer on the elite Vikings team, who said Smith repeatedly raped her for 2½ years starting when she was 13. Criminal charges were never brought against Smith.

According to Monica Strzempko of Westfield, the family never wanted to put their daughter through the ordeal of a trial and for that reason never asked prosecutors to press charges against Smith.

The Nov. 17 hearing held by the National Review Board of USA Swimming — held by teleconference — included testimony by Smith, who denied the allegations, several witnesses on his behalf and the results of a four-hour polygraph test that showed “no deception” when he was asked if he raped Strzempko.

The board’s review came after USA Swimming sought to permanently ban Smith from coaching swimmers and add his name to a published list of banned coaches. Though the board is an arm of USA Swimming, it is considered an independent panel. In its 12-page ruling, the board states that its job “is not to simply be a ‘rubber stamp’ of complaints filed by USA Swimming against coaches.”

The panel ruled that USA Swimming had failed to prove its case to ban Smith and the decision cites several elements, including this: “Nowhere in the record are there any specific details directly from Anna Strzempko that Smith ever engaged in inappropriate touch, kissing, or sexual intercourse, let alone anal intercourse,” the decision states.

“The panel was asked by USA Swimming to reach its decision based upon second- and third-hand interpretations by others of Anna’s previous conflicting allegations balanced against the remainder of the ‘evidence’ actually presented at the hearing ...”

With that, the panel states that USA Swimming failed to meet its burden of proof, in the eyes of two panel members, though a dissenting panel member believed Smith did violate the coaches’ code of conduct, and therefore should be banned for life from coaching.

Meanwhile, USA Swimming in November — the same week the hearing was held — awarded the Strzempkos a $400,000 out-of-court settlement “for pain and suffering,” according to a post on Anna Strzempko’s blog that has subsequently been taken down.

In an email reply to a Gazette request for an interview Saturday, Monica Strzempko said: “As we settled out of court with USA Swimming we are not at liberty to discuss the decision.”

How case made

In making its case to ban Smith, USA Swimming offered one witness, Victor Vieth, director of Gundersen Health System’s National Child Protection Training Center in Minnesota. According to the panel, Vieth consults exclusively with prosecutors and law enforcement, and USA Swimming hired him to conduct an assessment in which he analyzed factors “he felt supported the credibility of Anna’s allegations to others.”

Vieth never interviewed Anna Strzempko, nor did he interview police or DCF investigators, Smith, or any witnesses who testified on Smith’s behalf. In preparing his assessment, Vieth read multiple reports about Strzempko and interviewed her mother for about an hour, according to the decision.

In his testimony to the panel, Vieth was critical of investigations undertaken by police, by DCF, and also of the polygraph test Smith took. He testified to the board that if Strzempko was lying, “she is a good liar.”

In addition, USA Swimming submitted documents to prove its case, including correspondence between Monica Strzempko and DCF, a psychiatric report on Anna Strzempko, blog entries by Anna Strzempko and an affidavit signed by her on Nov. 14, 2014, two days before the hearing.

Anna Strzempko had identified three people to a USA Swimming investigator on June 7, 2013, who she said “were aware of or suspected misconduct by Smith.”

However, USA Swimming never interviewed those witnesses to verify the claims made by Strzempko: “It was Smith who did and offered evidence which contradicted the information provided by Anna,” according to the decision.

The review board states it made its findings after “lengthy deliberations over the course of several weeks.”

The panel was asked to rule on whether the allegations were proven by a “preponderance of the evidence” — a burden much lighter than in criminal court — which means that it is “more likely than not” to have occurred.

In a telephone interview Saturday, Aleo said the panel’s decision was the best his client could hope for.

“This is what we were expecting,” he said. “They can’t come out and say he didn’t do it, they weren’t there. This is as good as it would get for him.”

Still, he called the USA Swimming case “full of holes” — and noted the panel was asked to render its decision without talking to Smith’s accuser, whom Vieth described as a “non-compliant victim.”

The panel said Strzempko’s refusal to testify “left the panel with little or no opportunity to consider her testimony or determine her credibility.”

The Nov. 17 hearing was held by telephone, with panel members listed as Chairman Bernard “Buddy” Pylitt, Ward Foley, both listed as members of the National Board of Review, and Ceallach Gibbons, an athlete who is a member of USA Swimming.

The ruling does not say specifically which panel members concluded that there was insufficient evidence to ban Smith, and who voted to ban him. According to an email from USA Swimming spokesman Scott Leightman, “matters regarding NBOR decisions are confidential,” so details of votes are not revealed.

Though the decision was made Dec. 8, a gag order was imposed until the appeal period had passed, Aleo said.

Aleo said his client, who was fired from his job after the allegations were made, remains unemployed. He said he has advised Smith not to speak to the press because the Holyoke Police Department has said the case is still open.

Smith filed a complaint in April with the Massachusetts Commission Against Discrimination, alleging that he should not have been fired. An MCAD spokesman confirmed in December that the commission was investigating to determine if there was probable cause to move Smith’s complaint forward.

Aleo said Smith continues to deny the allegations.

“He was a coach for more than 30 years. He takes sexual abuse allegations seriously. There are few things that are worse,” said Aleo. “It’s been devastating for him. It’s been really, really difficult for him to survive this.”

Asked how Smith will move on from here, Aleo said: “I don’t think that’s clear. What I said to him when I wished him happy New Year was that 2015 would be better than 2014, and I don’t think he believed that would be true. He is just surviving.”


 


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