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.
Labels: Bernie Fine, Orange44 Lawdogs, Syracuse Basketball
"An appeal gets us more publicity."
Today in a 30-page decision by New York State Supreme Court Justice Brian DeJoseph, the defamation lawsuit filed by Bobby Davis and Mike Lang against Jim Boeheim and Syracuse University was dismissed. The decision followed oral arguments two weeks ago, as well as written submissions by each side citing to relevant case law and how it applies to the facts of this case. I took the time out of my busy Friday afternoon schedule to read through the entire ruling, and so here are my thoughts.
DeJoseph got it right. We've made no secret here at Orange::44 that we believed the suit would be dismissed. We believed that the defense motion hit the nail on the head, cited to some very compelling case law, and would stop this case in its tracks. Good thing we were right; I didn't feel like printing a retraction.
For those of you brave enough to sift through the 30-pages of legalese, let me try to give you the Cliff's Notes, everyday version (though, to be honest, I think it's a pretty easy, common sense read). DeJoseph begins by recounting the background of the case: the November 17 breaking news of the allegations, the reactions by the University and Boeheim, the filing of the lawsuit, and the specific statements alleged to be defamatory. The decision then launches into a lengthy discussion of the law and how it applies to these facts.
The discussion is the meat and potatoes of this decision. DeJoseph begins by describing the standard he must apply: "On a motion to dismiss for failure to state a cause of action, the Court is obligated to accept the material allegations as true and the Complaint is deemed to allege whatever can be fairly and reasonably implied. If upon reasonable view of the stated facts, Plaintiff would be entitled to recover for defamation, the cause of action must be upheld." In other words, for purposes of the motion, the Court assumes the allegations are true and, under that assumption, must apply those allegations to relevant law to determine if the facts meet the elements of the defamation cause of action. Or, more succinctly, "is this defamation?" After a review of the evolution of the law of defamation, DeJoseph then gets a little more specific: "In making this determination the Court must determine whether the reasonable reader could have believed that the challenged statements were conveying facts about the plaintiff," and that "New York's approach requires an analysis of the full context of the challenged speech whereas the federal approach requires a determination as to whether the precise words express or imply a provably false fact."
This New York approach provides more protection to the speech, recognizing the context in which words are spoken/printed give those words their intended meaning. Therefore, DeJoseph determined that "the threshold issue...is whether the alleged defamatory statements constitute expressions of opinion which are not actionable or assertions of fact which may form the basis of a viable claim." Further, "the dispositive inquiry...is whether a reasonable [reader] could have concluded that [the statements were] conveying facts about the plaintiff." To that end, the factors the Court must use are: (1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to signal readers or listeners that what is being read or heard is likely to be opinion and not fact.
Much attention is then given to the context of Boeheim's statements. First, DeJoseph writes, "the broader context of the Penn State scandal is highly relevant here as Defendant Boeheim was naturally placed in a defensive posture, attempting to defend himself and co-defendant Syracuse University from being compared to the allegations waged against Penn State, then Penn State head coach Joe Paterno, and former Penn State assistant football coach Jerry Sandusky." Boeheim is not a "disinterested observer," as the Plaintiffs argue, but rather was defending himself on an accusation that he personally witnessed Davis in Bernie Fine's hotel room; and also personally vouching for someone he has known personally and professionally for over 45 years. "Boeheim's statements appear to be a 'product of passionate advocacy' as opposed to 'careful, logically developed reason'" (i.e. Boeheim spouting out at the mouth). "The reasonable reader," DeJoseph writes, "would conclude that Boeheim was providing a biased and personal opinion on the accusations against Bernie Fine, not fact."
Second, on the context argument, DeJoseph reasons that the reading of the full text of the statements (the entire interview or the entire newspaper article) "clearly puts the reasonable reader on notice that Boeheim is boldly asserting his loyalty to a longtime colleague, and is frustrated by what he believes to be yet another opportunity for the Plaintiffs to accuse Bernie Fine of sexual abuse." It would not be sufficient, for purposes of determining whether the statements are defamatory, to simply parse the words you want out of a larger context and give them the meaning you want; rather, the words must be given the meaning within the context published.
Justice DeJoseph then has a long discussion of the word "liar" and when he believes its use becomes actionable defamation. This is a distinction I believe was not really mentioned much before now, outside of the legal filings and the arguments in court. The main idea here is that to call someone a liar, in and of itself, is not actionable; rather, the assertion that someone is a liar must also be accompanied by specific allegations of criminal conduct of the Plaintiff. DeJoseph finds that Boeheim's statements "do not include any specific allegations of criminal conduct" by Davis or Lang; that "Boeheim never uttered the words 'extortion' or 'blackmail' or any specific criminal act" when he said this was all about money. To be sure, the context of Boeheim's statetments -- in the immediate aftermath of the Penn State scandal -- and the staleness of the allegations of Davis, clearly indicate that Boeheim was asserting his opinion. Boeheim never stated he knew of any plan or scheme for Davis or Lang to get money; it was rather just his conclusion based on the context of how the story was evolving: "A full and thorough review of the statetments made by Boeheim and the articles in which they were published clearly show that Boeheim never claimed knowledge of any demand for money, but, again, Boeheim simply surmised, with the use of generalized speculation and suspicion that Plaintiffs' claims were possibly financially motivated."
Dismissing one of the last arguments in Allred's bag of tricks, DeJoseph argues against the assertion that Boeheim's statements implied that he knew facts that his audience -- or the general public -- did not know. Here, the allegation was that Boeheim had "unique access" to SU's 2005 investigation and internal report. Initially, DeJoseph notes that Plaintiffs failed to even allege this in its complaint. But more importantly, DeJoseph debunks the argument that we didn't know of this investigation: ESPN reported it when the story broke on November 17. So, you know, thanks, Mark Schwarz. DeJoseph reasons that "The ESPN story is relevant on this issue because it shows that Boeheim was speaking on an even playing field with his audience," that "when Boeheim commented on those facts, and used those facts to form the basis for his opinion, he was not drawing from any unknowns or any secrets, unique only to him."
This is important.
DeJoseph seems to believe that this is a vital piece of information. That Boeheim did not have unique facts, unknown to the public, to serve as the basis for his opinion, makes his opinion unactionable in a defamation suit. This is a holding from the recent Fourth Department case of Gisel v. Clear Channel Communications, Inc. This was a defamation case dismissed, and decided by the appeals court that would hear any appeal of this Boeheim suit. So for DeJoseph to cite directly to this case is him telling the appeals court that this case is similar to that one, and that the appeals court should come to the same conclusion that he did: that this is not defamation.
DeJoseph also seems to take the Allred legal team to task for its exaggeration of the situation and its claim that Boeheim was withholding information he knew about SU's investigation. I enjoy this gem: "The Plaintiffs seem to ignore that Boeheim is the head coach of the Syracuse University basketball team. He is not the District Attorney, not a private investigator, and not a police officer."
Finally, on page 30, DeJoseph gives his conclusion: "The content, tone, and purpose of Boeheim's statements would clearly signal to the reasonable reader, that what was being read in the articles published in the days after the initial ESPN report were likely to be an opinion - a biased, passionate, and defensive point of view of a basketball coach - rather than objective fact. Thus, Plaintiffs' defamation claim against Boeheim fails as a matter of law." Since the claim against SU was based on the same statements, the suit against SU was also dismissed.
While Syracuse University declined comment other than to state it was pleased by the ruling, Gloria Allred went on her usual over-the-top tirade. In an email to the Post-Standard, Allred said the following: "When Bobby Davis came forward years ago and complained about sexual abuse, he was ignored. When the allegations were made public he was attacked. It is difficult enough for victims of childhood sexual abuse to come forward. This decision sends the message that you can attack the alleged victim and call him a liar with impunity. It makes it even harder for victims to come forward."
Allred just doesn't get it. She thinks that by this suit being dismissed, it makes it OK for an accuser to be called a liar. That some blanket policy was just announced that gives victims no recourse. She, of course, worries about the chilling effect that such language could have on a potential victim to come forward; but, of course, she ignores the context. For his part, Jim Boeheim apologized for what he said, and acknowledged that his intent was not to discourage victims to come forward; rather, he was commenting specifically on a case that hit home to him, a case that he thought was cold and unfounded.
Gloria Allred should give credit to Jim Boeheim for his apology, and for his work and contributions in protecting children and helping the victims of abuse. But that all seems to be lost on her. That doesn't keep her in the headlines. On that note, the caption to the picture above is not a quote from Allred. I am not saying that she said that; she certainly did not say that publicly. But, it's my opinion that she thought it!
An appeal is evidently on the way. By law, Davis and Lang have 30 days (well, probably 35 days) within which to file a Notice of Appeal with the Onondaga Supreme Court. The notice is simply a one-page statement stating they intend to appeal. The appeals court -- The Fourth Department of the Appellate Division, based in Rochester -- will then set the timetable for submission of briefs or other arguments, and set oral argument, if necessary. Appeals can take a year or two.
So, don't expect an end to this anytime soon. But it's my opinion that, just as the defense motion to dismiss was on solid legal ground, that Justice DeJoseph's decision is also on solid legal ground. Especially with its citation to the appeals court's recent defamation decision. Good luck, Allred. You should just give up and go home.
Labels: Bernie Fine, Defamation Lawsuit, Jim Boeheim, Orange44 Lawdogs
When Do We Close the Book on the 2011-12 Basketball Season?
0 Comments Published on 4.24.2012 by John Brennan
As I sit here composing this story on April 24, it has been exactly a month since the SU Men's Basketball season ended with a 77-70 loss to Ohio State in the Elite Eight. Brian did his usual postgame recap after that game. And we've sort of moved on to lacrosse (to the extent a Syracuse fan can care about this season...). But we've done no end-of-the-season recap. Nothing that looks back and says "This is what the season was, now let's move on to the next thing." It hasn't been apathy. Not being too busy to do it. And surely not that we didn't want to talk about it. I think because, in many ways, it's because it still doesn't feel like the season is over.
Yes, the playing of the games is done. Not just for Syracuse, but for all teams. Kentucky is your National Champion, and will return to the court next season a completely different team. Teams are busy figuring out next year's rosters: seniors graduating, underclassmen leaving for the NBA, transfers, and recruits coming in. This is the talk of college basketball right now.
But I'm not ready to close the book on the 2011-2012 basketball season. No, not for Syracuse, anyway. Because this season - one that began with an exciting Midnight Madness back in the Carrier Dome on a Friday night in October - was unlike any other Orange fans have ever seen. On the court, and off. And until both of those things have met their conclusions, this season carries on.
This season saw many great accomplishments for the basketball team: a school-best 20-0 start; undefeated at home; Big East Regular Season Champions; #1 seed in the NCAA Tournament; Elite Eight appearance; the emergence of Dion Waiters and Fab Melo as college basketball superstars; and I could go on. As a fan, what you saw on the court was almost always a pleasurable and exciting experience. These guys could play, and at times, it seemed as though they were unstoppable.
And yet, it was all against the backdrop of horrible allegations that we still don't fully comprehend. After three games -- and not even one week into the regular season -- news broke that Bobby Davis and his step-brother Mike Lang were accusing longtime assistant coach Bernie Fine of past sexual abuse. From that pivotal point forward, this season -- and every part of it -- was seen in the context of these allegations. It went from "How will the team react to these allegations?" to "How will the team react to Bernie Fine being fired?" to "How is the team able to continue performing at such a high level despite these allegations?" Through it all, the players were able not only to "talk the talk" ("When we put on the uniform and step out onto the court, it's all about basketball"), but also to "walk the walk" (it really was just all about basketball when the jersey was on and the ball was tipped). The players were unfazed.
Jim Boeheim, though, different story. He was different. He had to be different. He's the face of this program - has been for 36 seasons now. He's also the spokesman of the team, one who speaks his mind more bluntly than your old school grandfather who cares nothing about political correctness. But it's that bluntness, that candor, that has ultimately has served as the basis for keeping this season alive in my mind.
We all know the story by now: when the allegations against Bernie Fine broke, Jim Boeheim made statements in the media to the effect that Davis & Lang were liars who were in it for the money. And while the attention eventually diverted away from Bernie Fine himself, mostly due to statute of limitations issues -- and, to his credit, his virtual disappearance from the face of the earth -- this entire story has turned into a focus on what Jim Boeheim said.
A defamation lawsuit filing and too many Gloria Allred press conferences later, the drama drags on. Brian and I have offered our legal insight to the defamation case -- both on this site and on twitter -- and we both think it's heading to a dismissal. A defense motion to dismiss is scheduled to be heard this coming Friday in Onondaga Supreme Court, so maybe that will get us closer to being able to close the book on this season.
Outside of the lawsuit, we were also dealing with the constant train-wreck that was known as Zach Tomaselli. Without getting into the very discussion-worthy story behind how Tomaselli even became a part of this drama, we know that the direction of the story -- and people's views of it -- were shaped by Tomaselli's involvement. At the end of the day, he was a character who did nothing but muddy the waters. His grasp of the ideas of truth and veracity are fumble-worthy. As if almost feeling the tempo of the country and knowing when he wasn't being talked about quite as often, he would inject himself back into the story -- with another allegation, or a change in his story, or a new accusation, or a recanting of his allegations, or a recanting of his recantation, or a recantation of the recanting of his recantation oh and now I've gone cross-eyed. This all, of course, leading up to his being imprisoned last week to serve a 3+ year sentence on sexual abuse charges for which he pleaded guilty.
This season had no chance of ending unless and until Zach Tomaselli was silenced. Quite frankly, knowing how obviously troubled he was, I didn't think he would make it to report for his imprisonment. But evidently he did, and now he won't have access to twitter, to telephones, or to anything else where he can interject himself into the Bernie Fine story at his every whim. Then again, I'll be the first to put money on Mark Schwarz being granted the first on-camera prison interview.
And so, we wait. We wait for the last few pages of the 2011-2012 Syracuse Basketball season to be written. The typical fan will get a sense of closure, once the lawsuit is concluded and a sufficient time has passed without hearing from Tomaselli. But we'll never know the whole story. Bernie Fine won't be writing the epilogue. He doesn't need to. We just need a basketball season where we're just talking about basketball.
Labels: Bernie Fine, Defamation Lawsuit, Jim Boeheim, Orange44 Lawdogs, Syracuse Basketball
Though I wasn't there personally, it appears the oral arguments made this morning were essentially rehashing the arguments the attorneys made in their written submissions. And we know the arguments on each side of the issue.
This morning, in between my own court cases, it occurred to me that there may be an even quicker way to get updates in this case than twitter -- shocking, I know! The New York State Court System has this online system called "eCourts," which gives the public a wealth of information on cases pending in many of the Courts in the state. Among its features is the ability to search by a case's Index Number and find out the parties, the attorneys of record, past court appearances, future court appearances, and the posting of judicial decisions. On top of all that, anybody can register for an eTrack account, which can send you an immediate email update anytime a case's information is changed in the state-wide computer system: when a new court date is scheduled, when a motion is filed, or when a decision is released. And so, I created my own eTrack account and registered for updates on this case.
For those of you looking to do the same thing, here's a quick tutorial:
- Point your favorite web browser (i.e. Chrome and nothing else) to http://iapps.courts.state.ny.us/webcivil/ecourtsMain
- Click on the link to WebCivil Supreme
- Enter the code displayed to confirm you're not a bot. If you're a bot, figure out how to mask your identity.
- On the left bar of the screen there should be a link to eTrack. Click on that.
- You're now on a page asking you to register for an account (unless you already have one). Do that.
- Once you've created an eTrack account, log in to eTrack with that information.
- Next, under the Civil Supreme Court Cases, click "Add an existing Civil Supreme Court Case"
- After probably typing in another "I'm not a bot" code, you'll then be brought to WebCivil Supreme and can search for a case a number of different ways. I suggest Index Search.
- Enter 000255/2012, select Onondaga County, and search away.
- You should now see the case you're looking for with some familiar names. Click on the linked Index Number, and you'll get a pop-up with more case information. At the bottom of the pop-up, click Add to eTrack. Boom!
If Justice DeJoseph grants the motion to transfer venue, that means the case will be heard not in "New York, Concrete Jungle," but rather in Onondaga County, home of the bustling DestiNY USA. That's still a thing, right?
If the motion is denied, then venue stays where it's been asserted (Manhattan) and the judge there will rule on the Boeheim motion to dismiss next month.
Either way, the venue issues and the motion to dismiss will really dictate whether this case settles (or rather, how soon). Of course, if it's dismissed, there's nothing to settle. That would be best case scenario for the Boeheim camp. Allred & Co. certainly want the case to go forward in New York County with the motion to dismiss being denied. I think at that point, this case goes away real fast, via settlement. Even with this case and these facts, I don't think I chance it in NYC if I'm Boeheim. Too much financial exposure. Just my opinion.
Once the change of venue motion is decided tomorrow, check my twitter (@jbren) for immediate reaction. Since I'll be in Syracuse for the USF game, you'll want to check back here for more in-depth analysis of the decision at some point on Thursday.
Labels: Bernie Fine, Defamation Lawsuit, Jim Boeheim, Orange44 Lawdogs
I normally might recap the filing or explain what I think it means, but I would urge you to just read it yourself. Though there's some legalese in it, I do think the lay person can figure it out. It reads rather easy. It sets out in simple terms exactly what the defense position is and why they take that position. It's full of several citations to other court cases where courts (particularly appeals courts which have binding law decisions over trial courts).
It certainly seems to me that Boeheim and SU are sitting on some solid legal ground (which I have felt from the inception of this lawsuit). The next step in this process will be for the Plaintiffs to file a response to the motion to dismiss, no doubt arguing their own law as to why the suit should stand. It will be interesting to see what arguments Allred & Co. can come up with to counter the motion to dismiss. Once the response is filed, the Court will then consider all the filings and make a ruling (there could also be oral argument on the motion as well). If the judge grants the motion to dismiss, the lawsuit is concluded in favor of Boeheim and SU. If the motion is denied, then the suit will continue with discovery, resolution of other legal issues (including the change of venue application) and head toward trial or settlement. We'll keep you posted!
Labels: Bernie Fine, Jim Boeheim, Orange44 Lawdogs
Today, Bobby Davis and Mike Lang filed a civil lawsuit against Syracuse University and Jim Boeheim for defamation. It was one of those "Well we're really not surprised because anything can and will happen in this case" moments. And when this whole Bernie Fine thing broke -- still less than four weeks ago -- many were concerned about Jim Boeheim's comments and assertions to the press. The concerns haven't resulted in criminal liability for Boeheim or a firing by the University, but we've now seen Boeheim dragged into a courtroom. Him, before Fine, who may never see a courtroom in this case.First, the suit itself. It was filed in New York County's Supreme Court. If you've seen an episode of the original Law & Order, this is the same court Jack McCoy prosecuted his cases. While the Boeheim lawsuit will obviously be in the civil part, not the criminal part, let's not lose the bigger picture here; this is Manhattan. This is a state suit under state law, so any county in New York has jurisdiction over this case. The specific county in which the suit is filed is the issue of venue, and by choosing Manhattan over Onondaga County, Davis & Lang (i.e. their attorney) is making a deliberate choice. Let's face it: money in Manhattan is a lot different than it is in Syracuse. The jury pool is the county of the lawsuit; think about who lives in Onondaga County versus who lives in New York County. Certainly not an indictment on what type of person lives in Onondaga County; they're regular people who understand regular things. But the type of people living in New York County are not farmers, are not blue collar workers, are not teachers, are not social workers, are not bank tellers, are not ... well, you get the picture. They're CEOs, bankers, lawyers, socialites, actors. You might say the now-infamous 1% lives there. You're gonna get a bigger jury verdict from a Manhattan jury than an Onondaga jury. No doubt Jim Boeheim & Syracuse University will be moving for a change of venue in the near future.
The lawsuit itself is for defamation. Defamation is a civil cause of action for damage caused by untrue statements being published. Slander and libel are two forms of defamation. The suit basically alleges Boeheim went to the press with false information about Davis & Lang -- by calling them liars and saying they came forward for money -- and that they have suffered damages as a result. The legal questions here will be: did Boeheim act intentionally or recklessly in making the assertions about the truthfulness & motivations of Davis & Lang? Did Davis & Lang actually suffer damage? Was that damage caused by Boeheim's assertions?
As I've mentioned on twitter, many times before today and again today, Boeheim said what he said when he said it because be believed it to be true based on the information he knew at the time. He knew these allegations about Bernie Fine had been brought several years ago about alleged acts in the 1980s & 1990s. He knew the police never brought charges against Fine. He knew the University investigated it. He knew that nobody brought to the attention of investigators could corroborate Davis' story. And he knew that the Jerry Sandusky story at Penn State had just recently broke. It was within that context of knowledge that Boeheim said what he said. When his context of knowledge changed -- i.e. with the Laurie Fine tape -- Boeheim backed off his earlier comments and, in an emotional press conference following the Florida game, offered an apology. If this case ever gets to a jury, that jury will have to examine Boeheim's words over the course of the past less than four weeks, and determine whether he knew or disregarded evidence in making his assertions about the accusers lying and being in this for money. They'll also have to weigh his First Amendment right to freedom of speech -- his right to express his opinion. Were his words assertions of truth, or expressions of opinion? That's a blurry, gray line.
Not to be lost on this development of a lawsuit is who the attorney at the forefront is: Gloria Allred. I'll be nice and not say anything about her, other than to say her reputation precedes her. Now, she was merely the speakinghead at today's press conference. At this point, she's not even the attorney of record on the case, because she's not licensed to practice in New York. According to the last page of the lawsuit, she will be filing for admission pro hac vice, which means that she will ask to be permitted to practice in NY for purposes of this case, with the assistance of NYS bar admitted counsel. I'm sure that will be approved, but Gloria Allred is not on this case for her courtroom prowess. She's on this case for things like today: the public face of the case.
In terms of where the case goes from here, we're at step #1. An index number has been purchased in the County Clerk's office in NY County. That allows the plaintiffs to file their suit with the Court. They then have to acquire jurisdiction over the defendants Syracuse University and Jim Boeheim by effectuating service of the complaint upon each of them. The attorneys will then file answers, demands for discovery, motions, depositions, etc. That can take months or even years. A settlement could happen at any time, but I honestly don't see a settlement coming anytime soon. The stakes are too high on both sides; I mean, it's Gloria Allred for Christ sakes! This whole thing really jumped up several levels with Allred's involvement.
What can ultimately happen if there's a finding of liability? The suit asks for special, compensatory, and punitive damages. Special & compensatory damages are designed to make the plaintiff whole, to put him back in his prior position and compensate him for the damage inflicted by the defendant. In a personal injury case this can be rather easy to figure out: medical bills, lost wages, loss of future earnings if unable to work again, etc. In a defamation suit, these damages are much more speculative. It'll be interesting to see exactly what is claimed by Davis & Lang outside of the "difficulty to now work in the Syracuse community and even to leave their homes." Punitive damages are those assessed to punish the defendant, severe enough to change their behavior. Most famously is the fight over punitive damages in the Exxon-Valdez case. 22 years later, that fight still rages.
We're obviously on day one of a civil suit that will go on for weeks, months, or even years. A lot can happen. If the last few weeks is any indication of what's to come, a lot WILL happen. What we can't deny is that the dynamic, the conversation has now changed. I know personally, I have gone from disbelief of the allegations against Bernie Fine, to recognition that Bobby Davis is probably a victim, to now having the belief that, yeah, this is all about the money, even if Bobby Davis is a victim. The sad thing is, I don't even get the impression from Bobby Davis that he wants it to be about the money. I truly think he just wants Bernie Fine to not abuse children. But he's gotten so caught up in bringing his story forward, so caught up with Mark Schwarz, and now so caught up with Gloria Allred, that he's just going along with what people are telling him to do. Which, unfortunately, may have been what got him wrapped up with Bernie Fine in the first place.
Labels: Bernie Fine, Jim Boeheim, Orange44 Lawdogs
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.
Labels: Bernie Fine, Orange44 Lawdogs
Fine was fired on Sunday.
We here at Orange::44 have cultivated a reputation over the years. In going from the first Syracuse Blog on the internet under the direction of Matt Glaude, to my current tenure as the editor here, we have run the gambit from silly to critical. But, especially in the last few years, we (John Brennan and myself) have become known as a reliable source in informing readers when the arena of the law and sports intersect. There is also a reason our slogan here is “chronicling the daily disaster that is Syracuse University Athletics”. It is at this juncture that I, as editor, feel like we should contribute to the Bernie Fine discussion.Famed movie critic Gene Siskel was known for asking the following question, “what do we know?” So let’s start there. We know that allegations have been made of a disturbing nature against Bernie Fine, long time assistant to Jim Boeheim at Syracuse, and the Associate Head Coach of the program. We know that these allegations were made by Bobby Davis, a former Syracuse ball boy. It was investigated previously by the Syracuse Post-Standard, ESPN, and Syracuse University. Nothing could be corroborated at the times of those investigations. The allegations resurfaced a couple of weeks ago, which then got the Syracuse Police, Onondaga County District Attorney’s Office, ESPN, the Post-Standard, Syracuse University, the US Attorney, and the US Secret Service involved. We know that nothing was run in the papers or the media before 2011 because no corroboration was found to confirm Davis’ story at the time, including people he told them to ask. That also includes the now accuser #2 Mike Lang, Davis’ stepbrother. Jim Boeheim defended his friend at this point, calling the accusers liars. On Sunday a new accuser, Zach Tomaselli, charged with sexual assault himself, accused Fine of abusing him as well. Also on Sunday, ESPN released an audiotape of what they say is Laura Fine, Bernie’s wife, and Bobby Davis from 2002. In that tape, the woman admits that she suspected some of the things that Bernie Fine was accused of to Bobby Davis. Finally, on Sunday night, Nancy Cantor fired Bernie Fine. Jim Boeheim also issued a statement apologizing for his earlier statements in defending Fine and calling the alleged victims a liar. This is all that we know.
That is a skimming of the facts but rest is all speculation and guesses and assumptions. And that is where we are at the writing of this. Those are the only things we know for sure. That’s important to remember, because ESPN, sports radio callers, and national columnists all seem to think they know more than that. They do not. The rest is all opinion or assumption.
It is no secret that I, Brian Harrison, am a graduate of Syracuse University (’05). John Brennan is a two time graduate of Syracuse, earning his BA and law degree from Syracuse (’03, ’06). We are fans. We are both upset by the notion that this could have happened at Syracuse University, a place where we both have endless fond memories, both before and after our commencements. But do I think that the University had anything to do with any molestation? No. Nor do I think there is a grand conspiracy or cover up in any way on the part of the University or any employee of the university. Not even Bernie Fine covered anything up. He just denied it. Nor, at this juncture, is there anything or anyone saying that there is some sort of cover up. Rational people would say that means at this point there wasn’t one then.
The good news is that Syracuse University could not have handled anything from this latest investigation better. From the initial statement from the Chancellor, to this latest statement about the firing of Bernie Fine, they have been excellent in their smartly crafted statements, saying the right things, and hitting the right tones. Something Penn State never did.
This investigation has taken many twists. Each more unbelievable than the last. It started when the District Attorney basically accused the Chief of the Syracuse Police Department (and/or the Assistant Chief) of either clear obstruction or incompetence. In an awesome press conference (please watch it if you haven’t) he ripped up one side of the police and down the other, and got a little bit of the mayor as well. Then there is this phone call. I don’t know what else is going to come out, but at this point nothing is surprising.
In terms of the legal situation, William Fitzpatrick will present items as the District Attorney to the Grand Jury. No charges will come of it thanks to the New York Statute of Limitations. While they have been amended to allow prosecution for these heinous crimes against children indefinitely, they were not changed retroactively. With any new and more recent allegations charges could be brought, but as of right now Fine is essentially in no danger of a case being brought in court. And there is always the possibility of Federal Court as well.
This third accuser to surface has major credibility issues, looking at it from a legal perspective. Facing charges of sexual assault in Maine, this seems like setting up a legal defense as an abused child himself. If true or not, there are credibility issues here that police and courts have to sort out. His father has said it is lies. It is another bizarre angle, but something that, if true, could provide a case for the district attorney or federal authorities to charge Fine with.
But on to the real reason for writing this essay. A few people are calling for the firing of Jim Boeheim. Nothing that he has done, or any information that has currently transpired, is grounds or reason for Syracuse University to fire Jim Boeheim. You have to remember at the start of this that this was the third time these allegations had surfaced. Jim Boeheim’s employer, Syracuse University, conducted their own investigation into the allegations in 2005 (which never heard the audio tape just released) over a four month period and nothing was found. Jim Boeheim thought that Fine was exonerated. On top of the fact that Boeheim had no reason to believe it was true from anything he saw, he defended his friend of 50 years. Now there is a preponderance that the first two victim’s stories are true. It appears his first statement of calling the accusations lies was in error. We still do not know the truth, but we know that Boeheim should not have said those things. However, Boeheim thought they were lies at the time. Just because he did that, does not mean he tolerates child abuse, nor does it mean he thought that if Fine did anything that it was acceptable. Boeheim has rightfully apologized. He will also probably face some sort of punishment from the University, most likely in a fine. Boeheim will also continue to take criticism which is fair in terms of his first statement. But did anything he say rise to the level of being fired from the University? Not at all. Nor is the argument of anything “happening on his watch” valid either. If he was notified by someone witnessing anything improper by Fine, then that would be valid. No one saw anything and then told Boeheim, nor did he see anything himself. Nor was it his responsibility to police coaches and players to the level that he would have seen anything happen. As Davis said himself, Boeheim wasn’t at the Fine home at 2am. Nor should he be expected to have been there. Davis knows that and most reasonable people do as well. If you are someone’s boss and they rob a bank after work, should you be fired? If you went on a business trip and he left the heist plan on a desk in their hotel room, were you supposed to search the room just because you’re their boss? I submit not. A reasonable person would submit not. Nor can anyone, not even CBS employees, extrapolate that Boeheim was saying that all abuse victims are lying. He was saying that these individuals were lying, convinced that if they were not something would have come up in 2005. Any sort of red flag. It didn’t. You can’t blame Boeheim for thinking what he thought at the time with the information he had. Again he did not have to make those statements and should be criticized, but clearly should not be fired. If everyone was fired for making dumb statements at some point even more people in this country would be unemployed. However, he is a public figure and a representative in name only to Syracuse, so he will need to face that, which he has in an apology that, written by him personally or not, still accurately relays his sentiment.
Supporting Boeheim also does not equal support for child abuse. To start, no one supports child abuse. Certainly John and I don’t. To say that saying Boeheim should keep his job is equal to supporting child abuse is not only wrong, but it is an argument that does not pass muster. Syracuse is not Penn State and any comparisons to the situation are made by people either ignorant of the facts or just plain incapable of reason.
The Syracuse Post-Standard so far has had excellent coverage of this, along with our friend Brent Axe on The Score 1260. ESPN has botched their own massive story already again, and other national columnists simply do not have the same context and sources that the people in Syracuse have. I remind you to consider that before forming opinions based on other’s opinions, including this notebook entry you currently are reading. Until the entire truth comes out, which I fear we may never know completely, things are not simple or cut and dry. But comparing Syracuse with any other school or any other situation is ridiculous. Unless there is a major new development this will probably be the only comment from the Lawdogs at Orange::44 until the investigation is complete. John and I still received top notch educations at Syracuse, and still enjoy everything about Syracuse. One employee does not represent a University with thousands of employees, nor does it their alumni, many of which are extremely distinguished. Syracuse University will continue to do what it does best; education. The sports programs will continue to succeed as well. This can happen to any school, any business, any employer. I’m sad it happened at Syracuse, and we will have to live with that knowledge. But am I worried about any tarnishing of the Syracuse name? From what I have seen from the university so far, not one bit.
We’ll return to our regular coverage of games and previews tomorrow as well all try to move on.
Labels: Basketball, Bernie Fine, Orange44 Lawdogs