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As Expected, Bernie Fine Faces No Charges

Been a while since we had to #lawdog anything

At long last, the criminal investigation into sex abuse allegations against former Syracuse Associate Head Coach Bernie Fine is over.

United States Attorney Richard S. Hartunian, the lead Federal prosecutor for the Northern District of New York, announced today that his office has concluded its investigation into Fine, and will not be pursuing charges at the Federal level or referring the matter to the State courts due to insufficient evidence. The official Department of Justice press release can be found here, and I highly suggest you read it.

The announcement comes as no surprise to anyone who has paid attention to the ongoing Fine saga, except that an announcement was made at all. We all knew that the allegations of abuse concerning Bobby Davis and Mike Lang were beyond the statute of limitations, both for a state prosecution or a federal prosecution. The only allegations not already time-barred concerned Zach Tomaselli who, as we all know, was a troubled young man whose allegations contradicted themselves, had recanted then unrecanted (canted?), and now himself sits in a Maine prison for three years and three months convicted of a sex offense. So, you know, he was never going to come off as a credible source of evidence.

For the feds to pursue a case concerning Tomaselli, they would have had to find some independent evidence which corroborated his story. Not only that, but the evidence they found (if any) would have to leave them reasonably sure that pursuing a criminal prosecution would result in a conviction. Today's press release simply states that, although 130 witnesses were interviewed, over 100,000 pages of material reviewed, and evidence was seized from Fine's home, there was insufficient evidence to pursue a criminal prosecution to conviction.

The press release also notes that the end of the investigation and the decision to decline to prosecute does not amount to a finding one way or the other. As Hartunian correctly notes, these types of allegations describe "conduct typically committed in private with individuals who are reluctant to come forward." As a defense attorney, I can state that often in sex cases, the only evidence is the word of the alleged victim; unless there is physical evidence which can be recovered immediately after the alleged crime, the alleged victim's statement constitutes the evidence. Therefore, the credibility of that alleged victim is paramount in the investigation: whether to file charges, seek a Grand Jury indictment, and bring it to a jury trial.

So it's no surprise that with an incredible alleged victim in Zach Tomaselli, the US Attorney declined prosecution.

As has been the theme with all things Bernie Fine, we will never know the truth. Can we be reasonably sure that nothing ever happened between Fine and Tomaselli? Sure. I think the evidence showing nothing happened outweighs evidence showing something happened. Reasonable people can differ in their opinions on whether Fine ever abused Davis and/or Lang.

This all does call into question the wisdom of ESPN and Mark Schwarz in going forward with the original story, and more importantly, getting Zach Tomaselli involved. I won't rehash everything I've written on that in the past, but no doubt this will all play into Laurie Fine's defamation suit against ESPN, and could serve as a basis for Bernie filing his own suit.

Of course, if I'm Bernie, I think I stay out of the limelight. Nothing short of Tomaselli, Davis, and Lang coming forward to say it was all made up and nothing ever happened will restore his reputation. No amount of monetary damages will make him whole, even if he's actually innocent.

Any more legal questions on this topic? Post below in the comments and I'll see what I can do.

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