The Reverend John Lo Schiavo, S.J., the 57-year-old president of the University of San Francisco, was grim and purposeful as he stepped to the microphones in University Center last Thursday morning. Because of preliminary news reports, everyone knew what Lo Schiavo was about to say—that the school was dropping basketball—but there was a certain drama in waiting for him to say it. The University of San Francisco, the Dons: the school that won two consecutive NCAA championships and 60 consecutive games from 1954 to 1956 and 15 West Coast Athletic Conference championships overall, including five in the last six years. The alma mater of Bill Russell, K.C. Jones, Bill Cartwright—and Quintin Dailey. By pleading guilty last June to aggravated assault of a USF coed the previous December, the All-America guard precipitated a chain of events that led to an unrelated university investigation that was now about to bring nearly 60 years of victory crashing down.
From start to finish, the Dailey case has revealed shocking conditions at the university: a kid-glove attitude toward basketball players, a sloppy Public Safety (campus police) operation and an administration that's slow to react or inexcusably ignorant. Lo Schiavo didn't even know that Dailey, the star of the team, was suspected of assault with intent to commit rape until a month after the incident occurred in a dormitory across a walk from his office.
At the press conference Father Lo Schiavo began by saying, "The Board of Trustees of the University of San Francisco decided yesterday that the men's intercollegiate Division I basketball program at USF should and will be discontinued. Anyone who is familiar with this institution and its proud history will understand what a painful decision this is. In all the circumstances, however, the Board had no other responsible choice. The circumstances centrally involve problems with the basketball program which have been plaguing us and which the university has been unsuccessfully trying to solve for many years. Those problems have put us in the position of defending ourselves before the NCAA Committee on Infractions twice in the past few years. The price the university has had to pay for those problems has been much greater than the heavy financial price. There is no way of measuring the damage that has been done to the university's most priceless assets, its integrity and its reputation."
Standing next to Lo Schiavo and looking downcast was Frank D. (Sandy) Tatum Jr., a senior partner of Cooley, Godward, Castro, Huddleson and Tatum, which, as general counsel to the university, conducted the in-house investigation that brought about the unprecedented decision to discontinue basketball. The investigation resulted from Dailey's surprising revelation in a probation officer's report, made public on June 26, that he had received $1,000 a month last summer for a no-show job with Electric Supply of Salinas, Calif. The owner is J. Luis Zabala, a former president of the Century Club, a booster organization for USF basketball, and brother of Father Albert Zabala, S.J., associate professor of theology at USF. The Zabala family has been a major non-sports donor to the school for years.
There had also been charges that USF had acted illegally in recruiting two high school players. Dailey himself added fuel to the fire when he said that he had received about $5,000 in checks from Zabala's company, beginning just before Christmas 1980 and ending last Christmas (SCORECARD, July 26). At that time Dailey implicated USF Coach Peter Barry in one of the payments and said that on another occasion Barry had given him $200 in an envelope to pay a car-rental bill.
Lo Schiavo mentioned no names or specific sums in his announcement. Of the Zabala-Dailey connection he simply said, "An alumnus, for whose actions the NCAA holds the university responsible, has paid money on numerous occasions to an enrolled student athlete who did no work for it." Later, when asked privately how much Zabala had given Dailey, Lo Schiavo said, "We're not sure, different figures have been given." Why did Zabala give Dailey the money? "I can't get inside Mr. Zabala's head," Lo Schiavo said. "I'm convinced that Mr. Zabala is only one of a lot of people out there who simply believe that you can't compete effectively without cheating. So they look at a university that wants to abide by the rules as naive, and they just want to go on doing what they want to do." Did Coach Barry give Dailey any money? Barry denied Dailey's charge to SI and told the school's investigators that he had never given or arranged payments to any players while he was the coach. But the investigators never asked either Barry or Dailey about Dailey's specific charge.
On another matter, Father Lo Schiavo announced, "Arrangements were made for another alumnus to pay high school tuition for a high school student being recruited. It should be emphasized that the high school student was and is totally innocent; he knew nothing about the matter." The high school student, who recently graduated, is Paul Fortier, a 6'9" center-forward from St. Ignatius, a Jesuit high school in San Francisco, who will now play at Washington. The alumnus who paid the tuition was a USF booster. No other examples of illegality were cited in the report.
Father Lo Schiavo continued at his press conference, "The basketball program at the University of San Francisco was once a source of inspiration, respect and pride for this university and city; that tradition adds to the sadness engendered by what it has now become. Because of it, we have now been perceived as being hypocritical or naive or inept or duplicitous, or perhaps some combination of all those. We have even had to suffer the accusation that we attempted to obstruct justice in order to protect a basketball player and preserve him for the team. However unjust those perceptions are—and they are grossly unjust—everyone who cares about USF must recognize that those perceptions have developed as a product of the basketball program. We have no responsible choice but to rid the university of the burden of them. All the legitimate purposes of an athletic program in an educational institution are being distorted by the basketball program as it has developed."
To those familiar with the situation at USF and the man who made the decision, Lo Schiavo's action shouldn't have been so surprising. Twice during his tenure, the NCAA had put USF on probation. Coach Bob Gaillard resigned in 1978 while the first NCAA investigation was under way; his successor, Dan Belluomini, was fired in 1980 as the result of an in-house inquiry. In appointing Barry before the 1980-81 season, Lo Schiavo had once again insisted upon a clean program. So the disclosure involving Dailey and Zabala was all it took for Lo Schiavo to make his decision. According to attorney Dan Johnson, a partner in the firm that conducted the investigation for the university, "As a practical matter, everyone should have understood that if there were other violations, Father Lo Schiavo was going to terminate the program."
Thus, Lo Schiavo became the first university administrator ever to take such punitive action against a major sport because of NCAA violations. His decision was applauded by such noted college coaches as Bobby Knight, Dean Smith and Joe Paterno (see SCORECARD, page 9). Barry said the action "seemed unfair," and there was stronger criticism by the commissioner of the WCAC and by certain supporters of the program.
At the end of last week Zabala was making himself unavailable for comment and Dailey said only that the decision "hurt a little."
The president's announcement was particularly ironic, considering his background. "This decision was personally embarrassing to me," he said. "I played basketball and I coached, though not very successfully. I yell at basketball games as loud as anybody. But the decision had to be made in the best interest of the university."
A couple of weeks earlier, Tatum, a former president of the United States Golf Association, may have set the stage for Lo Schiavo's action while commenting on the conflicting forces that exist in a big-time athletic program. "There are a lot of perceived pluses—recognition for the university, positive identification, support from alumni and non-alumni that transcends athletics, a positive impact on the student body. And it's fair to say that it's a way for young men to get an education they wouldn't otherwise have access to and entry to a world that otherwise wouldn't be available to them." Then Tatum added, "The brutal fact, though, is that if you can't somehow manage to conduct the program within the rules, assuming the fact that you want to, then all the perceived pluses, every single one of them, turns into a painful minus. You can just kind of multiply all that for a religious institution."
When the 1981-82 season began, Dailey was a junior majoring in communications and the superstar of the basketball team. He was considered modest and personable. He had worked as a disc jockey on the campus radio station, was the boyfriend of Reggie Jackson's niece and would make everyone's All-America team. When speculation arose that he would declare himself a hardship case in order to become eligible for the NBA draft (which eventually he did), Barry said, "If he stays next year, he'll end up being the mayor of San Francisco."
Now, as the result of his pleading guilty to aggravated assault on a USF nursing student, Dailey is lucky he's not in jail. He could have gotten as much as seven years and four months in a state prison or a year in a county jail, the sentence recommended by his probation officer. Originally he was charged with "assault with intent to commit rape, assault with the intent to commit oral copulation, assault by means of force likely to produce great bodily injury [aggravated assault], and willfully and unlawfully violating the personal liberty of [——] with said violation being affected [sic] by violence, menace, fraud, and deceit." On June 4 he pleaded guilty to aggravated assault, and all the other charges were dropped.
At that time, San Francisco Superior Court Judge Edward Stern indicated he would give Dailey three years' probation. On June 25, Stern did just that, and then noted that he had received "unsigned and unpleasant letters" because of the likelihood that he would put Dailey on probation instead of in jail. He also took the unusual step of commenting on his decision from the bench, saying he had first considered whether or not Dailey posed a danger to the community. In his opinion, Dailey did not. Second, Stern said he had spoken with the victim, and she agreed with the sentence. In sexual assault cases in California, it's customary to get the victim's opinion about the sentence, and the judge then read a letter from her that said, "In light of his conduct I have no sympathy for Quintin Dailey but I do feel that a jail sentence is not called for. He made threatening remarks about hurting me and using a weapon, but he did not seriously hurt me, use a weapon, or rape me. I feel lucky that I wasn't seriously harmed and I feel it is because it is not Quintin Dailey's character to behave violently. He certainly could have raped me, simply because of his strength and size. He has certainly not escaped this whole thing unpunished. He is now marked for life and it is bound to have some negative consequences in the future. I feel that jail is not the answer to Quintin's problem. Probation will serve as a constant reminder of his mistake and I highly doubt it will ever happen again."
Though Dailey has privately maintained that he is innocent and a victim of mistaken identity, his guilty plea cleared the way for his selection, four days later, on June 29, by the Chicago Bulls in the first round of the draft. Even before the Bulls drafted Dailey, sports columnist John Schulian of the Chicago Sun-Times, wrote that "if you really want to know how badly the values of sport have been distorted, examine the presence of Quintin Dailey on the NBA's doorstep.... I can't help believing that if Dailey weren't a basketball player, if he were just another creep off the street, he would still be learning what a chamber of horrors the halls of justice can be."
The reaction became even stronger in Chicago when Dailey appeared at a press conference held by the Bulls and failed to express remorse for the victim. "Basically, nobody heard my side of the story when it happened," he said. "And I really don't want to get into it now. I have forgotten about the episode. When you've got other, greater things ahead of you, I can put it behind me. Right now, it's forgotten."
The Chicago press denounced Dailey for his attitude, BULLS LOSE ALREADY read the headline on a Mike Royko piece in the Sun-Times. Royko quoted an anonymous woman who said she was going to organize a boycott of the team. On the same day in the same paper, Schulian wrote that "contrition didn't even seem to occur to" Dailey. "If he doesn't think it's necessary to ask forgiveness after that, he can rest assured he will get no forgiveness."
Back in San Francisco, general columnist Dick Nolan of the Examiner, a paper that had defended Dailey after the charges were brought, wrote, "This kid is a real credit to the social, moral and intellectual guidance purveyed at the University of San Francisco."
Dailey's agent, Boston attorney Bob Woolf, says the public reaction to his client's problems has been "just like a lynching. I've never seen such vicious attacks. Even if he was guilty of everything the lady said, it wasn't that bad."
It is true that Dailey seems an unlikely person to be involved in such a sordid mess. A 21-year-old from Baltimore, he is the youngest of four brothers. (The oldest, Anthony, is a West Point graduate.) His mother and father died within a month of one another when he was 16. At first he lived with an aunt, and then he went to live with Howard and Delores Burton of Randallstown, Md., the parents of his girl friend, Wanda. Mrs. Burton's younger brother is Reggie Jackson, and Jackson and Dailey soon developed a close relationship. In fact, Dailey was in Jackson's entourage at the Yankee playoff victory party in Oakland last October when Jackson and Graig Nettles got into a fight over Reggie's guests.
At Cardinal Gibbons High in Baltimore, Dailey was a good student and an even better basketball player. In three years he scored 2,844 points and led the team to two straight Catholic League championships. He was never in trouble. Ray Muliis, his coach at Cardinal Gibbons, recalled in a letter to Dailey's probation officer, "The worst thing that Quintin did during his three years on the varsity basketball team was to oversleep and be late for a team meeting during a Christmas tournament. As team captain, Quintin was very responsible and did an outstanding job. In fact, during a Christmas tournament his junior year, a couple of players decided to have a beer in their room. Before one beer was finished, Quintin was knocking on my door and saying, 'Coach, we have a problem.' "
Although sought after by 200 schools, the 6'4", 180-pound Dailey chose San Francisco, where he averaged 20.5 points a game and played on teams that won 71 of 91 games in three seasons. But it all began to fall apart—for him and ultimately the USF basketball program—in the early morning hours of last Dec. 21. The alleged events of that night and the days following are recounted here in considerable detail to delineate the terrible nature of Dailey's assault, a crime for which he might not have been punished.
Those events could not have begun more innocuously. At approximately 1 a.m. the resident adviser on the third floor of Phelan Hall, a girls' section of the dormitory, heard a noise outside in the hall. The R.A., a 5'4", 130-pound, blonde senior nursing major, went out to investigate and saw Dailey and teammate Eric Booker carrying a mattress from the adjacent men's annex toward the elevator. When she asked them what they were doing, Dailey said he was taking his mattress down to a room on the second floor for the Christmas break. She told him to make sure he returned it to his room before he left. Dailey and Booker said, "Cool," and got on the elevator while the young woman went back to her room. At around 3 a.m. she fell asleep, but at about 3:45 she was awakened in the darkened room. "I rolled over, opened my eyes and saw Quintin standing over me," she testified in a closed preliminary hearing on March 22. She said she asked, "Quintin, what are you doing in my room?" and he said, "Your door was open." According to the woman, the door wasn't open but had been left unlatched. She said to him, "It is awfully late."
Q. (by Assistant District Attorney William Fazio): And what did Mr. Dailey respond to that statement by you?
A. He sat down on the bed, and he, he said he had had his eyes on me for a long time.
Q. How far was he sitting from you at that time?
A. About six inches.
The woman said she smelled alcohol on Dailey's breath and recalled Dailey's saying he had been partying on the second floor of Phelan Hall with Ken McAlister, the captain of the basketball team, and Booker. She tried to engage him in small talk and told him that she would prefer to discuss things at a later date because she wanted to go to sleep. He then asked her to kiss him.
Q. Did you feel threatened or intimidated by him at that time?
Q. Why was that?
A. Because he hadn't left my room, and I had asked him already to leave....
Q. And when he asked you to kiss him, what did you say?
A. I said no.... He said, "Why?"
Q. What did you say?
A. And I just said, "I feel in the condition you are in right now, it might lead to something else."
According to the young woman, Dailey said to her, "Well, it just will be a little kiss." She said she didn't want to kiss him, and he replied, "I will leave if you kiss me." She asked if he would leave if she agreed to kiss him, and he said, "Yes, I promise." The young woman kissed him, but he still didn't leave. He wanted to kiss her again, and when she refused him, she said that he pushed her shoulders down on the bed and told her to kiss him. She was scared, and she said, "No, I already kissed you, and you told me you would leave. I would like you to leave."
She said she tried to engage him in small talk again, and they talked about the basketball team and his girl friend. He asked her if she had seen him play in a recent game on TV, and she said that she had and that he had played very well. He didn't want to talk about his girl friend. He seemed angry and said, "She is gone.... She is not coming back." The young woman said to him, "Well, I don't want you taking your anger out on me." Next, she testified, he pushed her head back with his hands and kissed her on the lips. She told him that wasn't a cool thing to do and asked him to leave. He pulled down the bedcovers. The young woman was wearing a medical scrub gown. She said he told her that he wanted her. She testified, "I took it that he wanted to have sex with me." She told him that she didn't want to do that, and he asked, "Why not?" She said she was against the idea. Frightened, she suddenly sat up and screamed for help. Then, she said, Dailey pushed her down, covered her mouth and told her to shut up. He told her that if she didn't shut up, "he would pull a weapon out and hurt me." She said he told her that he had a gun, but she never saw it or felt it.
Q. Were you concerned that he was going to rape you?
Q. What happened next?
A. He said he wasn't going to rape me.
Q. Did he leave at that time?
Q. What did he do?
A. He said, "I want you to want me."
A. He told me he loved me, he had his eyes on me, and he wanted me to submit to him.... I said I wouldn't do that.
She said the intruder tried to pull her legs apart. She reached down and twisted the bottom of the scrub gown between her legs. After a while he gave up and insisted for a long time that she kiss him and submit to him. She refused, and he said that he would finally leave if she kissed him again. Desperate, she kissed him, but he still refused to leave. Then, she said, Dailey asked to suck her breast and tried to pull her gown down. He kissed her on the neck and left a mark. By now she estimated about an hour had passed. The young woman tried to get up to reach her phone, but he put his hands on her throat and used his weight to push her down. She felt herself being choked. She felt as though she were about to pass out, and "I felt that if I acted like I was going to pass out sooner than I really would, he would get scared, which seemed to work. I started gagging, and he said, 'I don't want to kill her,' under his breath, and he pulled himself away." He warned her she had better not say anything to anyone because it would ruin his reputation on the team. He tried to pull her legs apart again, and then he fell asleep on top of the young woman. He slept for about 15 minutes but awoke when she tried to wriggle free.
Q. What happened when he woke up?
A. He pushed me back down again...and he kissed me, this time forcibly.
Q. What happened next?
A. He told me that, to feel him.... I just said no, I just said no.... He pulled down his pants, grabbed my hand, put it down there and told me to feel him.
As Dailey became more insistent, she said, she decided to masturbate him because "Number one, it would pacify him and he wouldn't be so aggressive with me, and number two, if he was able to ejaculate, he would not be able to rape me." The student said that after she refused Dailey's demand for oral sex, he ejaculated on the bedsheets and then fell asleep on top of her. It was now about 5:30 or 6 in the morning. About a half hour later, she said, he rolled off her, and she realized that he was in a deeper sleep than he had been previously. At about 6:45, she slid down to the bottom of the bed and left through the door.
She went across the hall to go to the bathroom, and then headed downstairs to the second floor to see the dorm resident director, Ed Confino, "because I had in mind something that would get Quintin out of my room." She didn't tell Confino that there was anyone in her room or that she had been assaulted. Instead, she asked him to wait two or three minutes, phone her room and then hang up. If she didn't return to Confino's room in 10 minutes, he was to come up to find out what was going on. She went back upstairs to the bathroom across from her room, crouched down and looked out through ventilation slats in the door to see if Dailey came out of her room. She saw Charlie Reynes, another resident adviser, coming down the hall and called to him. She asked him to knock on the door to her room and call out her name, without explaining why. She could see Reynes's feet through the slats when he knocked on her door. After he knocked a second time, she saw someone leave her room and Reynes chase him, not toward the men's annex but to an exit. She went back down to Confino's room and explained, without naming anyone, what had happened in her room that night. Reynes then showed up in Confino's room to report that a color television set had been stolen from his room earlier that same evening and also that he had chased and confronted a man who had run from the young woman's room.
Cross examination of the young woman by Dailey's attorney, George Walker:
Q. Did Charlie indicate that he in any way recognized the individual?
Q .... Was it your intention that the individual who was in your room be caught?
Q. You didn't want him caught?
A. I did not want him caught.
Q. ...That is because you thought at the time it was Quintin Dailey.
A. That is true.
Q. And if he got away, you were going to let the whole matter drop, at least at that point?
A. That is true.
Reynes, who wasn't a witness at the hearing, says, "I saw [the young woman] on her way back to the bathroom where she was going to peer out from the slats. She was obviously panic-stricken. I didn't have my glasses on—my vision is 20/100—and things were blurry, but I did see a person walk down the hall. He was a black guy, 6'2", dark jacket, green pants. Dark complected, slender, strong. He went by where [the young woman] was peering through the slats. I said, 'Can I help you?' He started running, and I chased him down a fire escape. Then he started to swing something. It might have been a belt, I couldn't see. I kept up the pursuit. I just wanted to get a look at him. I thought he was some black guy out of the ghetto by USF. He was very fast. I went down Clayton Street for a block, then he turned left and went into a space between two buildings. I didn't see where he had gone, and I went past him. I came back, and then I saw him. At that point he looked me in the eye, and he said, 'You want to play hero? I'll show you a hero!' I was very scared, and he started chasing me. A lady was getting out of a car, an orange car, it might have been a Pinto, and I said, 'Call the police!' I got a look at him, but I couldn't make out his face. I wasn't even close enough to say it was Quintin Dailey or someone else. I couldn't recognize the person. Basically, I guess, I'm a worthless witness."
Confino advised the young woman to see Dr. Sue Shoff in the USF Counseling Center. Before she did, she returned upstairs, showered and dressed. At 8 she had to attend a meeting for desk clerks, and then at about 9:30 she went to see Confino again. She was very distraught and very tired. Confino again urged her to see Shoff, and this time he accompanied her to Shoff's office. The young woman told both of them what had happened that night, and for the first time she mentioned Quintin Dailey by name.
While with Shoff and Confino, the young woman phoned Paul Moraes, a friend who was also Dailey's resident adviser. She asked Moraes if Dailey had ever shown any interest in her, and explained that a man she believed was Dailey had entered her room that night and "made me do all kinds of crazy things." She asked if Dailey had a goatee. Moraes, who had seen Dailey the morning before, said Dailey was clean-shaven.
At the urging of Shoff and Confino, the young woman next went to the campus Public Safety headquarters, where she began giving a statement to Officer Mary Bertka. After about 15 to 30 minutes, Bertka called in the Director of Public Safety, Sviatoslav (Yash) Yasinitsky, a bearded Russian émigré who had served 27 years as a San Francisco police officer and a man who looks upon himself as a "father to the students." Yasinitsky then interviewed the young woman while Bertka filled out an incident report in which Dailey was named as the suspect. At four that afternoon, Yasinitsky went to see Dailey. As Yasinitsky later wrote in his incident report, Dailey "appeared to know nothing about this incident which was not revealed to him, except in general terms. He appeared to have had a sober countenance, and otherwise showed no reasons to suspect him as the above intruder. Dailey explained that he had moved from the fifth floor Phelan to the second, with the help of Eric Booker, another player. And that he fell asleep in his new room at about 0230 hours. He awakened about 0900 hrs. and went to the Housing desk where he talked to two white females about his residence. He also agreed to take a polygraph test if it is necessary to clear himself in this case." Yasinitsky told SI that in his encounter with Dailey, "He behaved bewildered about my questioning. I said a woman had been molested. He sprung up and said, I don't need to rape anyone.' "
At about 5 p.m. Yasinitsky spoke to the young woman a second time. He explained that he had drawn a line through Dailey's name in Bertka's report because he doubted Dailey was involved. She told him she had "a five-percent doubt" that the assailant was Dailey—she later said she simply didn't want to believe it was Dailey—and Yasinitsky warned her that she could have a tough time prosecuting the case because it would be her word against Dailey's and there was no physical evidence. But there was a reason for that. Yasinitsky took no photographs of the bruises on her neck, arms and shoulders; he didn't dust the room for fingerprints ("The only surface conducive to fingerprints was the phone, and the suspect didn't touch it," Yasinitsky says); and he didn't take the bedsheets so that the ejaculate could be tested for blood type. The young woman didn't want to go to the city police, but Yasinitsky said she would have to report the incident herself because the police wouldn't accept a third-party report. The young woman said she would think about it during Christmas vacation.
At home, the victim agonized about what course of action she should take. She returned to USF on Dec. 28, and Yasinitsky again told her she had to file a report, but he urged her not to name Dailey. A few days later, when she saw Dailey in the USF Commons, she felt compelled to act at last. She saw Yasinitsky and told him that she was going to get in touch with the police and name Dailey. Yasinitsky told her he didn't believe Dailey was the assailant, and he urged her to think it over. According to Fazio, the young woman was very frustrated that Yasinitsky was trying to talk her out of naming Dailey, and on Jan. 1 she told the police about the incident.
There can be no doubt that basketball players have gotten special treatment at USF. Charles Reynes says that about six weeks after the incident, "Yash and some lawyer brought me down and showed me pictures of black guys and had me listen to voices. Yash told me it couldn't be Quintin Dailey. It seems like they had to handle the case with kid gloves, but their gloves were awful soft. I told Yash, 'Yeah, but what about what happened last year? You wouldn't do anything then.' I was attacked by a seven-two basketball player, a white guy, Rogue Harris. The guy made death threats. I reported this, but the school told me that if I wanted to press assault charges, they would put the burden on me. It seems to me that if I'm an R.A. and a university employee, the school should back me up, and it was a very scary incident. But they kind of brushed it off. Rogue came into my room, ripped a couple of buttons off my shirt, threw me on the bed, and said—there were two other people in the room—that if they moved they were dead, he'd kill them. Then he left.
"Some of the players they recruit are not outstanding. They are not interested in going to school. There is very little discipline at USF for basketball players. It's sick, and this is my alma mater. What started the whole thing with Rogue is that he had a university chair in his room, and the student head resident for the dorm [Gerald Brunn] found out about it. He was supposed to return it, he didn't, and I told the head resident this. Public-Safety went into his room, took the chair and four marijuana plants that Rogue was growing in his room. The guy went out of his mind that his marijuana plants had been taken, and that's when he threatened me with death. This guy was near crazy—and I'd rather you didn't quote me because he lives near me and might come after me again—but he tore towel dispensers off the bathroom walls, he broke the glass in the fire extinguishers, and nobody did anything. An attitude at USF that permeates down is that no one is supposed to do anything about basketball players. I'd write him up, but then I'd leave it up to the discretion of my superiors as to what should be done. It was like I was infected, too. It's like a disease at USF." Indeed, Brunn says he complained about the commotion in Reynes's room to Yasinitsky. Brunn says Yasinitsky didn't report the incident to the San Francisco police because, "He said that if the police were brought in there would be headlines the next day because Rogue's a basketball player."
On Jan. 1, two San Francisco police inspectors, J. Peter Otten and his partner, Kevin O'Connor, began investigating the Dailey case. Both, incidentally, had attended USF; Fazio, the assistant D.A. who prosecuted the case, is a graduate of the USF law school. Throughout, Dailey maintained his innocence, and said he hadn't been drinking on the night in question. Farley Gates, a freshman on the basketball team, later testified in the closed preliminary hearing that at about 12:30 or 1 a.m. on the night in question, Dailey came into his, Gates's, room wearing a red smoking jacket and smoking a pipe. Gates's parents, sisters and brother were there visiting from New Hampshire, and Gates's father put his arm around Quintin and teased him about the pipe, saying, "You devil, you." Mrs. Gates offered Dailey a drink, but he refused. To all present, he was absolutely sober. Dailey left the room before the Gates family did at 1:30. At around 3:30 a.m., Farley Gates had to go to the bathroom down the hall and left the door to his room open because he kept it on lock. As he was about to enter the bathroom, he heard his room door slam shut. Gates began banging on the door to wake up his little brother, who was spending the night with him, and Dailey came down the hall with his red smoking jacket on. He started making fun of Gates for being locked out of his room in his undershorts.
Q. (by George Walker, Dailey's attorney). Now, calling your attention to 3:30 in the morning, when you saw him out there, and you were in your shorts, did he appear to have been drinking?
A. Not at the time, no.
Q. Were you close enough to him that you could have smelled his breath?
Q. And did, by any stretch of the imagination, could he have been drinking at that particular time, or drinking——
Dailey also says he has another witness as to his whereabouts and state of sobriety on that night, Calvin Tom, a friend from Oakland. Dailey says that Tom "was with me that night until I went to sleep at 3:40." Tom wasn't called as a witness in the case.
On Jan. 27, Dailey went voluntarily—but without a lawyer—to police headquarters, where he had an appointment to take a polygraph test. Lie detector tests aren't admissible as evidence in California courts, but the test eventually led Dailey to make a statement that, although ambiguous, in part tilted the scales against him. "If he had gone there with a lawyer, there would have been no case against him," says George Walker, who wasn't retained until after the damage had been done. Inspector Howard Bailey, who administered the test, says, "Everything was done to accommodate him. I gave the test later than I usually do. The test was after practice." Bailey explained the procedures to Dailey, and then gave him the test, which took about 40 minutes. He asked Dailey if he wanted to wait while he evaluated the test, but Dailey chose not to. On Feb. 5, after Dailey returned from a road trip, he went back to police headquarters, where Bailey said he had evaluated the test and that Dailey had been deceptive.
Q. (by Fazio).... What, if anything, did Mr. Dailey ask you after you discussed the results of the polygraph with him?
A. He asked me if a person walking in his sleep could commit the acts alleged on the 21st of December at the University of San Francisco in [——'s] room.
Q. What did you tell him?
A. I answered that some people occasionally do walk in their sleep. He wanted to know if a person walking in their sleep could do that. I told him this particular type of prolonged conduct is out of the question.... Mr. Dailey next asked me what I would say if he were able to provide some of his friends as witnesses that would swear he was with them the entire night of December 21st, 1981, and never in [——'s] room.
Q. What was your response to that?
A. I told him that I knew what had occurred on December 21st, 1981, and that having his friends lie for him would only subject them to problems....
Q. What did he say then?
A. He asked me, should I confess to something I didn't do, which I emphatically responded, absolutely not...to just tell the truth about what he did do.
Q. What, if anything, did Mr. Dailey say?
A. Well, there was a pause, then he stated that, all right, I was there, but I didn't mean to harm her, I never did anything like that before.
Dailey's admission that he had been in the victim's room—damaging evidence—prompted Bailey to ask him to describe the incident on tape in his own words (see box below). Although his recollections were imprecise, the police and Fazio were elated. "The next thing you know we get a call from the USF attorneys," says Fazio. "They want to convince us that Dailey isn't the guy. We meet with Stu Kinder and Dan Johnson from the law firm, but they didn't have any information we didn't have and we told them that Dailey flunked the polygraph test. And then we played the tape to them."
On Feb. 16 Dailey retained Walker at the suggestion of Reggie Jackson, who said he would pay his fee. A week later Dailey was arrested, charged and released on $5,000 bail. USF officials said they believed Dailey was innocent. "We're going to support Quintin, and he's not going to be suspended until it has been proved that he has done something wrong," said Athletic Director Bill Fusco. Dailey sat out the first game following his arrest, but he came back the next night to play against Pepperdine at USF's Memorial Gymnasium and he received a standing ovation from the overflow crowd of 7,005. Because Dailey's head was shaved, some wondered if he was attempting to alter his appearance so his accuser couldn't identify him. But after the game he said he always got a haircut before a big game. He scored 42 points that night, the second-best performance ever by a Don player, and sports columnist Lowell Cohn wrote in the Chronicle, "Everyone, I'm sure, wished him well. I felt ashamed that I had secretly put him on trial during the game. There is no more pleasant guy than Dailey. He smiled bravely at us." Dailey had the support of many students. At the Pepperdine game someone hung a banner with the victim's name on it, saying——, YOU WISH.
Walker took Dailey's case at a difficult time. It soon became apparent to him that his client was locked in a box. First, there were his statements—recorded and unrecorded—made to Bailey, which Judge Stern ruled admissible, even though Walker argued they were an extension of the inadmissible polygraph test. Then there was the March 22 hearing in which the young woman, obviously the victim of an assault, insisted that Dailey was the assailant.
While Walker was preparing for the March 22 preliminary hearing, he says he was tipped off that a black street guy, who resembled Dailey and who lived near USF, had bragged to a friend that he had pretended to be Dailey and that he had been "fooling with the white girls" sometime before Jan. 1. As Walker told the court, the street guy, whom he named (and who he believed had a prior sex offense), "said he was going up there to get to the white girls." Unfortunately, Walker added, the street guy disappeared after the Dailey case became public, and neither Walker nor the police were able to question him.
After the March 22 hearing, Walker talked over the crucial elements of the case with Dailey. The young woman had identified Dailey as the assailant. The look-alike had vanished. The NBA draft was coming up on June 29. If Dailey wanted to fight the charges, he could, but Walker could offer no guarantee of victory. If Dailey fought the case, the trial would extend beyond the NBA draft, so he would be sure to miss out on this season even if he were acquitted later in a trial. If he were convicted in a trial, he might never play pro ball, because he could get seven years and four months in state prison. Moreover, after serving his time, Dailey, as a sex offender, would have to register with the police or sheriff in any county in California where he lived, even temporarily. If anyone flashed in a school yard or anyone was raped, Dailey could count on being hauled in for questioning, with all the attendant publicity.
Walker and Dailey then discussed the fact that if he pleaded guilty to the lesser charge of aggravated assault—the option he ultimately chose—the sex charges would be dropped and he would get three years' probation before the NBA draft. If he were drafted and his probation record was clean, at the end of his probation he could have the court reduce the offense to a misdemeanor and set aside the guilty plea on the felony conviction. He could then enter a plea of not guilty to the misdemeanor, and, Walker says, "the matter would be discharged, and he will not have any offense on his record. He can even say, 'I have not been convicted of any charge.' With that guarantee, Dailey could be sentenced four days before the draft—all teams would understand he would have no jail time—and after three years he would have an unblemished record. This situation in California law is called a 'wobbler.' The legislative intent behind it is that a man's life is looked at in totality rather than for one instance. He had no record for being aggressive and no sexual background. He's the only client I've ever had that I've been able to bring to the house, and my wife hates the work I do. She thinks I'm always defending crooks and getting them off, but I tell her I make the police honest, I make the prosecution honest, the judge honest. After all, I'm a sworn officer of the court. I had two cracks at the case [if it went to trial]. First, the ID. Second, 'So what if I were there? What did I do?' Difficult, but if I got a hung jury, the case is unlikely to be tried again."