Anyway, to the nitty gritty here. Today, Zach Tomaselli -- the third accuser in the Bernie Fine saga -- admitted that he had doctored emails he provided to the Post-Standard, and that he lied about things in order to get people to believe him. You follow that logic? Good. This, of course, is a huge blow to his already shaky credibility. With the Tomaselli accusations being the only potentially prosecutable case against Fine, these latest credibility issues really throw a wrench into that.
For the Feds (or anyone else) to bring Fine to trial on these accusations, they need to have credible evidence. Prosecutors have a duty to do justice -- which often times means not prosecuting a case if they don't have enough evidence for a conviction. In a sex abuse case where there is little to no physical evidence, the lion share of the proof presented at court will be the testimony of the alleged victim. Therefore, that alleged victim's credibility is of the utmost importance; if the jury doesn't believe the alleged victim, they have nothing on which to base a guilty verdict.
So let's count the credibility issues of Zach Tomaselli:
- He first contacts ESPN, who puts accuser Bobby Davis in touch with him. Then he goes to the authorities.
- He evidently doesn't know the difference between UConn and Pittsburgh.
- His school says he was in school when he says he was in Pittsburgh.
- He doesn't know how he got to Pittsburgh or who else was with him.
- He admits that he doctored emails he showed to the Post-Standard in order to get them to take him seriously.
- And, oh yeah, he pleaded guilty to sexually molesting a young boy and is awaiting a lengthy prison sentence.
Now, I'm no expert -- no, wait, I am -- but no prosecutor is going to prosecute a case against Bernie Fine on the Tomaselli allegations. Of course, following his revelations to the Post-Standard today, he then texted the paper that he wants the police to drop its investigation, leave him alone, and that he'd also be dropping the civil suit against Fine. A non-cooperating complaining witness doesn't necessarily mean that the police wouldn't follow through with their investigation or that the prosecutor wouldn't prosecute -- that happens all the time -- but realistically I imagine Fine is fine here. I mean, with Tomaselli facing three years in prison, he'd be testifying in Fine's trial wearing prison garb. Strike One. And then lie after lie after lie. Strikes two and three. He's out.
I imagine, however, that the Feds will continue their investigation of Bernie Fine, with or without the cooperation of Tomaselli. They need to make sure there are no other potential victims. They need to make sure that they have conducted the most thorough investigation possible, so that nobody can ever say that this was swept under the rug.
Many have asked about the effect Tomaselli's lies will have on the search warrants. Initially, not much. The warrants were already issued and executed. To my knowledge, nothing damaging was recovered. If this case did actually go to a criminal trial, the defense would surely challenge the warrants, claiming that the applications upon which the warrants were based did not have probable cause and were unreliable. It's easy to say that in retrospect, knowing what we know now about Tomaselli. But at the time, the judge has sworn affidavits in front of him, claiming -- under penalty of perjury -- that everything contained in the affidavit is true. The judge has to take those affidavits for what they are and, to an extent, assess the reliability of the information. My thought here is that the judge probably acted within his discretion in finding there was enough probable cause for the issuance of the search warrants. If anything, the police will get some slack in not thoroughly investigating Tomaselli before vouching for his credibility in bringing his accusations before the judge for the warrants.
But, as Brian noted on twitter earlier today, this is all probably a moot point. If Fine isn't prosecuted, then the legality of the search warrants is immaterial. If there's no trial, then there's no need to suppress evidence. Simple as that.
And so, the saga continues. With Bill Fitzpatrick being right about there not actually being a Victim #4, and with Zach Tomaselli all but convicted of perjury, we're only left with our original two accusers -- Bobby Davis and Mike Lang. As has been reported here and pretty much everywhere else (maybe even on ESPN), the accusations of Davis & Lang are beyond the statute of limitations. So as it stands now, unless there is another accuser out there, Bernie Fine will not face criminal prosecution for any of these alleged acts. And also, with the civil suit by Tomaselli being withdrawn, Fine currently has no court case against him whatsoever.
Is this justice? Hard to say. Nobody knows what the truth is or whether any of these things actually did happen -- except Bernie Fine and the accusers. And -- debate on the statute of limitations issue aside -- how this case has developed and continues to run its course should give people some confidence in the criminal justice system. The rights of the accused are, and should be, at the forefront of every case, from initial accusation to disposition. Even more important than the victims. That might make me unpopular, but you rest assured that if you are the one being accused of something -- wrongly or rightly -- you want the process to treat you fair and you want all of your rights honored. You want the system to get it right, and protecting the rights of the accused is the best way to get the right result and protect the integrity of the system. And if that means that some guilty people "get away with it," then so be it. Guilty people going free is better than innocent people being convicted.
Now we wait for the next development in the life of Bernie Fine. And you know us lawdogs here at Orange::44 will be here to break it all down for you.
In full disclosure -- especially because I don't want Gloria Allred to sue me for defamation -- everything I wrote last night was a lie. http://www.syracuse.com/news/index.ssf/2012/01/zach_tomaselli_says_he_wont_as.html