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Bernie Fine: No NY Prosecution

Today, Onondaga County District Attorney William Fitzpatrick held a 50-minute press conference to announce basically what we all already knew: that Bernie Fine could not be prosecuted under New York State law for the alleged crimes committed against Bobby Davis and Mike Lang. If that's all that could be gleaned from that presser, then we clearly have a grandstanding DA who, not to be forgotten, is an elected official and therefore, a politician. But after watching the presser, I gained a lot more information, a lot more insight, and actually have some respect for how he handled things (today, at least).
First, I highly recommend that you visit your favorite news site to view the entire press conference, or at least the highlights, if you haven't already done so. Information is the key, and as we have found, people who comment or criticize without having enough information do more harm than good. To begin the presser, Fitzpatrick does a good job of describing the timeline of events concerning the allegations: who knew what, when they knew it, and what was done about it. He states the facts. He doesn't pass judgment or say anyone did the wrong thing. He simply says "this is how it all unfolded." He then goes into some greater detail about how the situation has been handled since ESPN went public with the story back on November 17. I assume we all have a pretty good idea of the story from there.
Some important things I've learned from Fitzpatrick's press conference:
  • He believes the accusations brought forth by Davis and Lang; he says that had the allegations came forth within the statute of limitations, he no doubt would have prosecuted Fine. He further explains that had he been made aware of the allegations (and the tape) in 2002, 2003, 2005, he would have initiated an investigations (certainly similar to what has transpired over the last few weeks) to attempt to uncover other potential victims.
  • The previously identified "Victim #4" is no victim at all; there is no credibility to his accusations.
  • There are potentially several issues with the allegations brought forth by the third accuser, Zach Tomaselli. The DA's office is in possession of travel records and school attendance records which he will be turning over to Fine's defense counsel as "Brady material." I'll explain that below.
  • The conduct alleged by Davis and Lang fall under "Sexual abuse in the third degree," which is a Class B misdemeanor in NY. More on that below.
  • While he thinks ESPN, the Post-Standard, the Syracuse Police, and Syracuse University all could have (and probably should have) acted differently when information was disclosed to them all those years ago, they did not act wrong or certainly not illegally. There was no evidence of any institutional failure or cover-up.
  • He certainly thinks the law firm investigation in 2005, at the request of SU, was wholly inadequate; but that the university and its employees (i.e. Nancy Cantor and Jim Boeheim) acted appropriately in relying upon that investigation's findings. Of course, now knowing that that investigation was "inadequate" and didn't have enough information, has caused those officials to reevaluate how they view the case and that those more recent revelations have resulted in an appropriate change in tone and message.
"Brady material" -- music to the ears of a defense attorney, and quite frankly, an important cornerstone of our criminal justice system. This is a term that emerged from a 1963 Supreme Court of the United States case, Brady v. Maryland, which held that the prosecution in a criminal action has an affirmative, constitutional duty to protect the due process rights of the accused by turning over to the defense any evidence which may be viewed as "exculpatory" -- that is to say, could be potentially helpful to the defense. To really simplify it, here's an extreme example: 18-year-old black man, 6'4" tall weighing 300lbs. is arrested and charged with armed robbery of a liquor store. Through its investigation, the police or prosecution come upon surveillance video showing that the person robbing the liquor store is actually a frail, 70-year-old white woman barely reaching 5'2" and 115lbs. The prosecution has a duty to turn that surveillance video over to the defense. Sure, an extreme example, but that should be quite illustrative of what is "Brady material."
The Brady material here seems to include travel records and attendance records. I'm assuming (though Fitzpatrick deferred any further comment on the issue to the US Attorney) that the travel records indicate Tomaselli didn't travel with the team and wasn't registered at the Pittsburgh hotel, and that he was in fact in school on the dates in question. Such evidence is obviously useful to the defense in essentially proving that these actions alleged by Tomaselli could not have happened; or at the very least, can serve as an attack on his credibility. Now, we know Tomaselli has been anything but shy in talking to the media (or posting on his facebook), and he has already responded to this Brady material. Believe him and his cover-up/manipulation of evidence claims or not, it is what it is; the US Attorney will make its own credibility determination and will decide whether he has enough credible evidence to proceed with a Federal prosecution.
But, the more appalling consequence (in my opinion) with these apparent holes in Tomaselli's story is that several search warrants were issued, evidently using Tomaselli's sworn statements. Now, I haven't seen the search warrant, and I haven't seen the search warrant application, so I don't know exactly what's in it and what basis the judge used to grant the search warrants. But if Tomaselli's credibility is at issue, this could cause serious issues with the validity of the search warrants. Should the dominoes continue to fall in that direction, there's a chance that the warrants could be ruled invalid, and any evidence seized as a result could be inadmissible in a prosecution. That's extreme and a lot of hypothesizing at this point, and it would only be as a result of a finding that there was not probable cause for the court to issue the warrant. So, I won't speculate any more on that until I see the warrant application.
"Sexual abuse in the third degree" - the crime that Fitzpatrick believes was committed by Fine against Davis & Lang. From the statute (Penal Law section 130.55): "A person is guilty of sexual abuse in the third degree when he or she subjects another person to sexual contact without the latter's consent." Sexual contact is "any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party." Obviously sex abuse 3rd is a catch-all charge for which anything from fondling to rape could fit; however, with conduct such as rape (which requires penetration) has its own separate charges, one can assume that fondling is the only thing being alleged here. That's consistent with what Bobby Davis and Mike Lang have publicly stated. Sex abuse 3rd, being a B misdemeanor, only carries a maximum 3-month sentence, 1-year probation, fines, and surcharges. More importantly, however, a conviction of this crime requires registration with the Sex Offender Registry -- so, if convicted, Fine would be a registered sex offender. Obviously here, with no state prosecution, there will be no state conviction and, no sex offender registration. We'll have to see what the Feds do.
So where does this leave us? Essentially in the same position we were in before Fitzpatrick's presser this morning. We're more knowledgeable, sure, but nothing about the situation has changed. The Feds still need to decide what, if anything, to charge Fine with, and take further action from there. Jim Boeheim, Nancy Cantor, and the SU community seem to be vindicated and given a vote of confidence by the DA. Maybe that will put to rest the National Media's push for more accountability by Boeheim, and calls for his resignation or firing to be silenced.
If Davis and Lang truly are victims of Fine, they don't get their day in court. They don't get "justice." The statute of limitations is what it is, and it exists for a reason. If the legislature of NY thinks that needs to be reexamined, then the legislature needs to act on that and change it. I can say from a defense standpoint, statutes of limitation are important because it prevents allegations of crimes from the distant past from ruining someone's life; evidence is old or non-existent, memories are faded or wrong, and it's much more difficult to get a fair trial based on old allegations. But, it's the province of the legislature to reexamine that and do what it sees fit so that justice, both to alleged victims and to the accused, is at the forefront of our criminal justice system.

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