Rumors about Chase Scanlan, wearer of the fabled #22 on the Syracuse Men's Lacrosse Team, have been swirling around social media in the last few weeks. We now have a pretty good handle on the allegations, and why the school suspended, then unsuspended, and now resuspended Scanlan. An investigation by the Syracuse Police Department and Onondaga County District Attorney culminated yesterday in the charging and arrest of Scanlan, as well as a release of the specific allegations which have landed the lacrosse player in legal jeopardy. Orange::44 used to do a lot of legal posts back in the day, when the major sports programs within Syracuse Athletics used to have regular legal drama. Thankfully, it's been a while. A long while. But here we are. As recounted in great detail in a very comprehensive article by Douglass Dowty on Syracuse.com, Scanlan is charged with Criminal Mischief in the Fourth Degree (a Class A misdemeanor) and Harassment in the Second Degree (a violation). On Friday, May 7, 2021, Scanlan was arrested, brought through the booking process, held for several hours in jail at the Onondaga Justice Center, arraigned by a judge, and released pending further proceedings. There's a lot there, so let's break it down. Scanlan was arrested because relevant witnesses came forward to give sworn statements to the police, which gave the police/DA the factual basis necessary to determine which charges were appropriate. Once those charges were filed, the police had a legal basis to arrest him. When someone is arrested, they are brought through the booking process -- the police gather pedigree information about the defendant, obtain fingerprints and a photograph, and all of that information is entered into a database along with information about the pending charges. For charges like this where the law does not allow for bail to be set, a defendant would typically be given an appearance ticket and simply sent home with direction to appear in court at a later date. However, given this was a domestic violence case, he needed to be held pending arraignment before a judge, so that the court could issue a temporary order of protection in favor of the complainant. Down here in Chemung County where I work, a judge would have been immediately available for an arraignment, but I guess Onondaga County does things a little differently, and Scanlan was held in custody for several hours before appearing before a judge for arraignment. At the arraignment, Scanlan would have been provided a copy of the charges against him, advised of his rights, served with that temporary order of protection, and then released on his own recognizance with a promise to appear at a later date. The two charges are Criminal Mischief and Harassment. Criminal Mischief is intentionally damaging property belonging to someone else with no permission to do so. Here, Scanlan is alleged to have damaged the complainant's iPhone by dropping it in a toilet, and later throwing it to the ground, breaking the glass face of the phone. Misdemeanor level Criminal Mischief is charged when the damages to the property are not specified in an amount; when damages exceed $250, then the charge could be bumped up to a felony. Most of us have experienced broken phones, so Scanlan got lucky that he wasn't charged with a felony. If convicted, this misdemeanor charge carries a jail term of up to 364 days, or probation up to three years, or simply a one-year conditional discharge. The Harassment charge is a violation (a non-criminal offense), where, with intent to harass, annoy, or alarm, a person strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same. The Syracuse.com article explains that the allegations involve Scanlan pushing a woman and, later, holding her down on his bed with a forceful squeeze which ultimately led to bruising her ribs. The police and District Attorney decided they did not have enough evidence to charge misdemeanor assault -- which would require proof of physical injury -- surmising that lingering pain and bruised ribs doesn't meet that legal standard (when, actually, I think probably does). It's not a slam dunk on physical injury, particularly if the victim didn't describe the pain as "substantial," so I guess the close call here went in favor of the accused -- and there's certainly ample evidence to charge Harassment. Harassment carries up to 15 days in jail, or a conditional discharge. Both charges here also carry mandatory surcharges and possible fines. A Criminal Mischief conviction will also result in Scanlan being required to submit his DNA for inclusion into the New York State DNA Databank, so it will be on file forever. When this incident was initially investigated by Syracuse Public Safety (essentially the university police), Scanlan was suspended by the school. However, when criminal charges were not immediately forthcoming, he was reinstated. We've seen much surmising by people that the reinstatement was due to potential liability the school had under Title IX -- essentially that Scanlan might be able to sue the school for lack of due process in his suspension. We won't know for sure because of the privacy protections under federal law, but this seems likely given what we know now -- and the fact that now that criminal charges are pending, Scanlan has been removed from athletic participation. It's frustrating as fans that we didn't quite know what was going on between the initial suspension and the reinstatement. To a large degree, the school's hands were tied, but the messaging probably could have been better. Nobody likes that head coach John Desko said the reinstatement was his call (it no doubt wasn't) but I think the school couldn't really say why there was a suspension in the first place, or why it had to reinstate him (Editor's Note: I believe the Syracuse Unviersity General Counsel was directing much of the advise during this part of the process to the Athletic Department and likely dictated what information to release and at what time to attempt to avoid any liability on the part of the school. Title IX protection is serious and due to the domestic nature of this incident, certain protections are built in for the accused.). But we know for sure now that he can't participate in athletics now that he's been charged. Over the next several weeks, the DA will have to turn over what's called discovery to Scanlan's defense attorney -- things like police reports, witness statements, pictures, video, medical records, basically anything of relevant evidentiary value. His attorney could file certain motions to challenge evidence or even the legal sufficiency of the charges themselves. No doubt there will also be discussions between the ADA and defense attorney about a resolution to the case -- either a plea bargain or possibly a deferred disposition through a diversion program which could ultimately lead to a dismissal. That could require something like community service, alcohol counseling, and/or domestic violence counseling. That's what I would push for if I was Scanlan's attorney, particularly if he has no criminal record and we want to preserve that. However, the ADA on the case will have to weigh that against the interests of the victim in protecting her and making it known to the community that domestic violence is serious and will be dealt with accordingly. Each case is different, and those involved will have to determine what meets the ends of justice. Scanlan is presumed innocent. There may appear to be a great deal of evidence against him, but that presumption of innocence exists unless and until either Scanlan pleads guilty, or a jury unanimously finds him guilty beyond a reasonable doubt. We should never lose sight of that cornerstone of our legal system. However, Syracuse University and the Athetics Department can and has taken action solely based upon the criminal charges pending, and my guess is that we'll never see Scanlan wearing #22 at Syracuse again.

Labels: Breaking The Law, Lacrosse, Orange44 Lawdogs, Syracuse Lacrosse

Assuming that the offense does not substitute, the officials will allow the offense to snap the ball when the officials are in position, and when the "box", i.e., the down indicator, is set. The officials do not wait for the chains to get set. Both the box and the chains move upon the direction of the officials.

Labels: ACC, Football, Know The Rules, Orange44 Lawdogs

I miss Joel McHale's "The Soup" with the "Gavel Bangin'" segment

It's been a while since we've posted a lawdog article here on Orange::44. Last February, to be exact. And that was regarding the self-imposed postseason ban for the basketball team. The last lawdog article about SU Athletes being involved in a crime was October 30, 2013, when Ryan Norton was arrested on Marshall Street during the football team's bye week. By and large, Syracuse student-athletes have kept it clean since then, which has been a welcomed relief for Brian and I so we can focus on writing about sports instead of crime. But, here we are.

The dot com is reporting that former Syracuse DB Naesean Howard was charged Saturday with Assault in the Second Degree and Criminal Possession of a Weapon in the Fourth Degree stemming from a stabbing incident on campus. Today, we learned that not only were the victims SU students, but they are members of the football team -- defensive backs Chauncey Scissum and Corey Winfield. Neither are reported to have life-threatening injuries, which is the good news. However, their exact status and how that will factor into their ability to play this fall remains to be seen, so please keep Chauncey and Corey in your thoughts and prayers for a speedy recovery.

As for the suspect, Naesean Howard, he had been making a pitch to be able to walk on to the football team this fall, after having been dismissed from the team in 2014 by former head coach Scott Shafer, leaving school, and then reenrolling at Syracuse this year. The school has indefinitely suspended Howard, so I think it's safe to assume -- especially given that the victims are members of the football team who figured to be starters this fall -- that new head coach Dino Babers won't be looking to allow Howard to walk on, even if he somehow remains in school once this case works itself through.

What can Howard expect, from the legal perspective? Well, as of this writing, he's in the Onondaga County Justice Center. If he hasn't been arraigned, I'm sure that will happen Monday morning, bail will be set, he'll have a lawyer, and a preliminary hearing will be scheduled. He's charged with a felony and a misdemeanor -- Assault being a Class D violent felony, and the weapons charge being a Class A misdemeanor. On the felony charge, Syracuse City Court has limited jurisdiction, so it only has the legal ability to set bail and to hold a preliminary hearing to determine whether there is sufficient evidence to continue Howard held on bail pending a presentation of his case to the Grand Jury.

With the assault charge being the more serious of the charges, what happens on that charge will likely control what ultimately happens in this case. If convicted, Howard could face up to seven years in prison. However, there is no mandatory state prison sentence, though because some incarceration is mandatory, he could receive a local jail sentence (and the time he's in right now would count towards that). He could also receive probation along with whatever jail sentence he receives (up to six months).

If I'm Howard's defense attorney, I'm investigating the circumstances in which this stabbing occurred. What other people were around during the incident? Was there an argument or fight that occurred? Did either of the players who were stabbed possess any type of a weapon? Did Howard act in self defense? As more details about this incident are released, we'll get a better sense of what direction the legal case will take.

In the meantime, let's hope Chauncey & Corey have a full and speedy recovery.

Labels: Breaking The Law, Orange44 Lawdogs, Syracuse Football

Places Syracuse won't be. See also: Greensboro, NC.

Today was an unusually busy afternoon for me. I didn't have time in between cases to check out twitter's typical drivel. I stayed at the office later than usual, returning phone calls, writing emails, consulting with coworkers. So when I finally made it home around 6:25pm and put on the local news, they were just starting the sports segment. "Syracuse men's basketball has self-imposed a postseason ban, amid the ongoing NCAA investigation into the school's self-reported infractions," reported the sports director. I'm not even sure what my initial reaction was -- other than "Why didn't I already know this? I don't actually get my news from... the news."

A quick perusal of twitter got me up to speed pretty quickly. Then I noticed emails in my gmail inbox from Dr. Daryl Gross and Chancellor Kent Syverud. What struck me more than what those emails said, was what those emails didn't say.

The NCAA has a confidentiality clause (come on, a gag order) regarding what institutions under investigation can say about the investigation. The NCAA would argue it's to "protect the integrity of the investigation." Common sense would say it's so that the NCAA can control the message, the public perception, about its own policies and procedures.

From a competition standpoint, collegiate athletics needs a governing body; one to monitor uniformity of the rules for each sport, determine eligibility, administer tournaments, and award championships. And in today's media-heavy society, that governing body needs to market its products, ensure distribution of its profits, etc. So, don't take this article as anti-NCAA, because I believe it has a purpose and needs to exist to continue to make college sports that thing we all love. But the NCAA, as it currently exists, falls well short of my expectations of an effective governing body for collegiate athletics.

The issues, to me, are its investigatory and punishment functions. Being a public defender, I have a pretty intimate familiarity of investigatory and punishment functions of, you know, reality. Of things that really matter: people's lives. With the NCAA, we're talking about sports at the end of the day, not how long a convict spends in prison or how a victim will be compensated. But college sports effects a lot of people: the student-athletes, the coaching staffs, the athletic departments, the facilities staffs, the local economies of the schools' cities, Nike, Under Armour, etc. College sports is some people's realities. And for that reason, the investigation and infliction of punishments within the framework of college sports must have integrity, must have due process, must have fairness.

Not constitutional protections. Not statutory protections. These aren't penal law crimes we're talking about.

We're talking about infractions of rules, policies, and standards of the governing body of collegiate athletics.

I think we're basically at the point right now where the Penn State case has run its course. I won't recount all of that history here; you know it all, and if not, you're currently on the internet and can access it with a quick Google query. But what did the NCAA do to Penn State in light of the Jerry Sandusky tragedy?

When all was said and done, Penn State lost out on a bowl game and scholarships. They're now back in full standing -- full scholarships, full postseason eligibility, restoration of vacated wins. Why? Because the NCAA acted recklessly in determining the school's responsibility in the infractions, imposing its punishments, and Penn State sued the NCAA. And because the NCAA knows it messed up, they had to settle the case. What a precedent!

I'm not saying Penn State didn't deserve punishment, and I'm not saying the settlement is fair or unfair. It all is what it is.

What I'm saying is that the structure of the NCAA allows for circuses like that to happen. Where is the structure and transparency of NCAA investigations? What are the acceptable forms of punishment once an infraction has been proven?

More and more, the NCAA seems like a "make it up as we go along" type of organization. Roger Goodell and the NFL are receiving similar criticism for its unequal treatment of domestic violence and substance abuse violations.

I'm used to things like statutes of limitation, being advised of the specific charges against you, a speedy and public trial, and a clear set of possible sentences based upon the proven crimes. These are basic tenets of the criminal justice system. Why can't the NCAA have a similar system?

Take the case of Syracuse. What we know, for sure, are two things: Syracuse self-reported possible violations of NCAA rules as early as 2007, and Syracuse self-imposed punishment today through this postseason ban. Obviously, schools need to report potential or perceived violations -- and I don't equate this to criminals knocking on the door of the local precinct to turn themselves in and confess to their sins. This is sports. But once that infraction is reported -- by the school itself or through the NCAA initiating something -- the process needs structure and transparency.

The Syracuse investigation dates back to 2007. It has expanded in scope: backwards to the early 2000s in the football and basketball teams, and forward to the Fab Melo & James Southerland issues of 2012. All the while, what has the NCAA been doing? We thought things came to a head when hearings were held in Chicago in October 2014, where coaches, administrators, and other relevant witnesses appeared before the NCAA's Committee on Infractions. But we were given no indication of when the NCAA would issue its rulings -- on whether alleged infractions were substantiated and what, if any, punishments the school would received.

And now, with no answers more than three months later, Syracuse University decides to take matters into its own hands.

Now do I believe that's actually the case? No. I think it's the school's response to a threat from the NCAA that without a self-imposed punishment, the NCAA's hand would come down in ways the school would not want to consider. Longer postseason bans? Substantial scholarship losses? Significant reduction of practice time? Vacation of program wins? Including the 2003 National Championship? We've all heard various rumors, and who knows what the NCAA may have threatened. But I can't imagine the school imposes a postseason ban without any direction from the NCAA that such an action would be in the school's interests.

Though I also don't think Syracuse was a longshot (or even out of the discussion) at making the NCAA Tournament -- IT'S FEBRUARY 4, PEOPLE! -- deciding to exclude itself from postseason play this season was a good move for the school. Even with the Penn State settlement as precedent, an NCAA-imposed postseason ban for this season -- or even longer -- would still take time to be settled or adjudicated in court. So by Syracuse taking this action now, in hopes of avoiding worse penalties when the NCAA finally decides to make public its decision, it allows for the possibility of more clarity on how the school moves on from these infractions.

A school -- which, let's remember, is a MEMBER INSTITUTION OF THE NCAA -- should not be left in the dark for nine years. It should not be subject to an investigation which continues to expand in scope without resolution of the initial allegations. It should not be held mute to discuss the process. It should not be denied the opportunity to defend itself to the public -- and to the students, parents, and fans who support the institution. Due process and constitutional protections exist in the criminal justice system because our founding fathers had an inherent distrust in the tyrannical government it separated from -- and the transparency and public nature of the criminal justice system was an attempt to create public confidence in the system that governs the people.

Because when you're playing by the book, when you're ensuring fairness, why would you keep that secret?

Labels: NCAA, Orange44 Lawdogs

The Boeheim defamation lawsuit has been resurrected

Editor's note: The following is a quick post about today's Court of Appeals decision while I'm on an extended lunch break during a jury trial. Yeah. That's how much I care about you people!

Today, New York's highest court -- the Court of Appeals -- issued a decision reversing the lower court's finding affirming the trial court's order of dismissal. In layman's terms: back on.

Procedurally, we know this case never went to trial. Boeheim's lawyers filed a notice of appeal very early in the process -- even before discovery. The trial judge dismissed the suit, ruling that the suit filed on behalf of Bobby Davis and Mike Lang did not allege facts sufficient to meet the legal threshold. That dismissal order was appealed to the mid-level appeals court in New York -- the Appellate Division -- which upheld the dismissal in a close 3-2 decision. The Court of Appeals took the case, and after oral arguments last month, considered arguments of both sides and determined, based on the law, that the lawsuit should be reinstated.

The gist of the Court of Appeals' decision is that Davis & Lang sufficiently alleged that the statements of Boeheim in the hours and days after the Bernie Fine allegations were made public, were of such a nature that they constituted "mixed fact and opinion," which makes it at least sufficient to survive a motion to dismiss. Boeheim making statements that "they had done this before" in regards of Davis & Lang making these sex abuse allegations, as well as Boeheim's reference to the investigation that found no proof of the abuse, are what did Boeheim in. Those facts were special facts that the public -- the reasonable listener/reader of Boeheim's statements -- had no knowledge of prior to Boeheim stating it. Because Boeheim's statements of opinion are based upon those special facts not previously disclosed, the Court found they were mixed fact & opinion, which are the proper basis of a defamation lawsuit.

But wait, this isn't the end of the road. The Court of Appeals is merely stating that the allegations in the lawsuit are sufficient for the case to move forward. That means, the case can proceed through the discovery process, depositions of witnesses, other legal wranglings, and ultimately a jury trial. A jury could still find that those statements were not defamatory. A jury could find that the statements of fact upon which Boeheim made his opinions were actually true -- and most of us know that the truth is a defense to defamation.

So, Boeheim could still walk away from this unscathed. Or, a jury could rule against him and find that he did defame Davis & Lang. Or, maybe this doesn't even get that far -- maybe all the parties reach a settlement, the terms of which we'd probably never know. Stay tuned, we'll walk you through any future developments.

Labels: Defamation Lawsuit, Jim Boeheim, Orange44 Lawdogs

How will the Court of Appeals rule?

It's been a while since I wrote a #lawdog article, and an equally long while since we've talked about the Bobby Davis & Mike Lang lawsuit against Jim Boeheim and Syracuse University. The last update was when the Fourth Department of the Appellate Division affirmed the trial court's ruling dismissing the defamation suit we're all too familiar with at this point. However, as you may recall, that was not a unanimous decision. The dissent in that case left the door open for New York's highest court -- the Court of Appeals -- to hear the case. And it did just that on September 9, considering oral arguments between Davis/Lang's lawyer and Boeheim's lawyer.

If you don't know how this works, here's a quick primer: the lawyers from each side must submit what are called briefs to the Court. They're not underwear, nor are they short, so I really don't know why they're called briefs. Nevertheless, these briefs lay out the legal arguments supporting the argument(s) that side is putting forth, along with citations to the case record (filings, motions, evidence, testimony, etc. that was submitting in prior proceedings in the case). The appeals judges review the briefs from each side (OK, more likely their law clerks do that) and thus familiarize themselves with the facts of the case, and the legal issues being argued. This is all done in preparation for oral arguments.

Oral arguments is an opportunity for the attorneys to highlight the main points of their arguments to the justices, but more importantly, for the justices to poke and prod at the attorneys. The justices will often times interrupt the attorneys mid-sentence, or even the other justices, to either point out a flaw in an argument or to play devil's advocate. This is really when an attorney's ability to maintain poise and think quickly on his/her feet become vital. A bad performance during oral arguments likely won't torpedo one's case, but let's face it, it doesn't help.

So, on September 9, the attorneys in this case went to Albany and argued their case before the Court of Appeals. Led by Chief Judge Jonathan Lippman (pictured above), the Court tried determining whether Boeheim's statements were clearly opinion, or mixed fact and opinion. Another point of focus was what a reasonable reader/listener would believe based on all the context.

You can read the transcript of the entire proceeding here. If you would rather listen, you can download a video recording here. I suppose you can listen and follow along in the transcript, too. It's fun how the Chief Judge knows all about Jerry Sandusky, and has no trouble saying his name, but Jim Boeheim is somehow Bonheim.

Sometimes you can get a pretty good idea of which way the Court's leaning simply based on the targets of questioning during oral arguments. I'm no expert by any stretch of the imagination, but I couldn't get a good read on this Court either way. So, we'll just have to wait until they deliver their decision, which could come within a few weeks or a few months. Just remember, even if the David/Lang camp win this appeal, it doesn't mean they win the defamation suit. It just means that it was improper for the trial judge to dismiss the suit, and instead it would be reinstated and could ultimately go to trial before a jury. So, maybe we haven't heard the last of this case...

Labels: Defamation Lawsuit, Orange44 Lawdogs

Well, we made it until the end of October.

News surfaced today that Syracuse starting kicker Ryan Norton is suspended for the Wake Forest game this Saturday due to an arrest last weekend. Norton had been the starter since Ross Krautman was lost for the season due to injury/surgery.

Norton's arrest stems from allegations of underage possession of alcohol and resisting arrest. Evidently, Norton was outside of Acropolis on Marshall Street last Friday night (strike 1), possessing a 24-ounce can of Bud Light (strike 2). When approached by police, he initially complied but then tried to run away, and struggled when they apprehended him (strike 3).

Now, in my experience as a defense attorney, police do have a tendency to over-exaggerate allegations of resisting arrest. But my guess is Norton acted stupid enough to warrant these charges. I say stupid because if he's cooperative with police about the underage drinking, maybe he just walks away from this. Maybe they cops just say "Throw away the beer and go home." Or, at worst, he gets cited for underage drinking -- a simple violation -- which would send him to Syracuse Community Court, he'd have the option to perform community service, and have the charge be dismissed. Instead, he complicated things by resisting.

Complicated, because resisting arrest is a misdemeanor. A crime. If he's found guilty of resisting arrest, he gets a criminal record. It becomes more difficult to dispose of the case.

While a conviction of resisting arrest carries a maximum of one year in jail or three years probation, I certainly don't see either of those things happening here. In fact, I don't see him being convicted of resisting arrest. Assuming he has no criminal history, I think at worst he pleads down to disorderly conduct & pays a fine, or at best performs community service and gets everything dismissed.

We'll let the court process play itself out. In the meantime, Head Coach Scott Shafer has already decided that this is a violation of team rules, that Norton will be suspended for one game (Wake Forest this Saturday), and will rejoin the team for the game at Maryland next week.

So to recap, a few things from this: football players need to not be idiots when they're not playing football; and to his detriment he made his own situation worse by resisting. Not smart. None of this was smart. Especially the "hanging out in front of Acropolis on a Friday night" part.

Labels: Breaking The Law, Football, Orange44 Lawdogs

Gloria Allred Loses Again

This past Friday, the Appellate Division, Fourth Department, issued its Memorandum and Order deciding the appeal in the lawsuit filed by Bobby Davis & Mike Lang against Jim Boeheim & Syracuse University. As you will recall, the Supreme Court of Onondaga County granted a motion to dismiss -- pretty early on in the proceedings -- on that basis that the lawsuit did not allege a cause of action upon which the court could grant relief. Essentially, that dismissal stated that even if the allegations in the suit were assumed to be true, that they didn't amount to the level of proof required for defamation. The Davis & Lang legal team, led by publicity-hungry Gloria Allred, appealed that decision. Recently, lawyers filed their appellate briefs and appeared before the Court for oral arguments, and the Court recessed to deliberate and issue its ruling.

That ruling, which you can read on the Court's website here, upholds the Supreme Court's dismissal of the suit.

What it means
The lawsuit is dead. This could very well be the end of the road for these defamation claims. The appeals court, ruling 3-2, believed that Supreme Court justice Brian DeJoseph was legally correct when he granted the defense motion to dismiss the lawsuit. The appellate court cited to a number of cases mainly asserting that in determining whether the statements in question made by Boeheim were fact or opinion, the court must consider a number of factors, particularly the context in which the statements were made and what exactly was said. In concluding its decision, the Court writes:

The content of the statements, together with the surrounding circumstances, “ ‘are such as to signal . . . readers or listeners that what is being read or heard is likely to be opinion, not fact’ ” (Mann, 10 NY3d at 276). Based upon “the content of the communication[s] as a whole, as well as [their] tone and apparent purpose[, together with] the over-all context in which the assertions were made” (id.), we thus conclude that the court properly determined that defendant’s statements constitute opinion, not fact.

However, there was also a dissenting opinion. Two justices voted to reinstate the lawsuit, asserting that the statements were mixed fact and opinion, and as such, should at least survive a motion to dismiss at this stage of the proceedings and move forward with discovery and other pretrial matters. However, since a minority of the five-justice panel voted to reinstate the lawsuit, the dismissal was upheld.

What happens now
Like I said, at the moment this lawsuit is dead. The only thing that can resurrect it is a reversal by the Court of Appeals -- New York's highest court. But getting the case there usually isn't easy. The Court is much more selective in the cases it hears, and therefore its docket is controlled by the Court itself -- or by permission from justices from the lower appeals court. In this case, two appellate division justices dissented, which means that an appeal to the Court of Appeals can be taken "as of right" -- in other words, the law gives them that automatic right, and no permission is required to get the case to the Court of Appeals.

If (and when) the Allred team appeals as of right to the Court of Appeals, there will be another round of appellate briefs being filed, and oral arguments before that Court, before a decision is rendered. At that point, the Court will either affirm the rulings below to dismiss the lawsuit -- ending the case once and for all -- or reversing the dismissal and reinstating the lawsuit. That wouldn't mean Davis & Lang win, it would just send the case back to Onondaga Supreme Court for the lawsuit to pick up where it was ended.

And no, an appeal to the Supreme Court of the United States (or, one of my favorite acronyms, SCOTUS), would be unlikely, if not impossible. An appeal to SCOTUS would have to involve a question of federal law or a federal/constitutional right, and really the only one I can think of here would be the right to free speech, which would be asserted by Jim Boeheim himself. But he would only appeal if there was a judgment/verdict against him, which wouldn't be until further proceedings in Onondaga Supreme Court.

So my official prediction is that we likely haven't seen the end of this case, because of course. This case is like the fembot in Austin Powers: The Spy Who Shagged Me -- Robin Swallows -- who was stabbed, shot multiple times, bazookaed out a window, fell several stories to the ground, and still wouldn't die.

And with that, I think I'm all done here.

Labels: Defamation Lawsuit, Orange44 Lawdogs

Eventually, the gavel will bang one last time on this Davis/Lang/Boeheim/Fine case

The law prefers finality. Specifically, the finality of a court ruling. But, the law also prefers due process. So in that spirit, the law allows an aggrieved party to, in most cases, file an appeal of a trial court decision. Such is the case in Bobby Davis and Mike Lang against Jim Boeheim and Syracuse University. As none of us can forget, Davis and Lang filed a defamation lawsuit against Boeheim & SU for certain things the coach said in interviews and press conferences in the wake of the revelation of allegations against Bernie Fine.

That suit was originally filed in Manhattan. But a motion to change venue was filed by the defendants -- who won that motion -- and the case was moved to Onondaga County. This allowed a local court with a local judge to hear the case between local litigants. Prior to reaching trial, or even the discovery phase of the case, Onondaga County Supreme Court Justice Brian DeJoseph had an opportunity to rule on the defendants' motion to dismiss the case, arguing that the case should be ended right then and there because the lawsuit does not allege a cause of action upon which relief can be granted. In other words, "you ain't got no case."

On May 11, 2012, DeJoseph granted the motion to dismiss the suit. The Court wisely made reference to a recent appeal decided by the same court that would hear an appeal of this decision. And yet, Davis & Lang decided to appeal.

Today, oral arguments on that appeal were heard by the appeals court. The Appellate Division, Fourth Judicial Department, is based in Rochester, NY and is the mid-level appeals court for cases originating in an area of the state covering Corning and to the west, north to Buffalo, and east to Rochester, Syracuse, the Mohawk Valley, and the North Country.

Oral arguments are not the type of thing you see on TV or in the movies. There's a panel of appeals judges who sit at the bench at the front of the court room, and there is a podium where the attorneys stand to argue -- one at a time -- for 15 minutes each. Depending on the judges, the attorneys may get cut off to answer specific questions of the judges. Prior to oral arguments, the attorneys would file briefs, summarizing the procedural positions of the case in the lower court, and arguing, based on law, why the lower court messed up. So assuming the judges have read these briefs (or had their law clerks give them the condensed versions), the judges generally know what the case is about and what legal questions are at issue.

I quick look around the internet didn't produce copies of the appellate briefs or the recordings from today's oral arguments, so I have no way of knowing for sure what was argued. The Davis/Lang team surely argued that DeJoseph should not have dismissed the case and the matter should be sent back to his court to proceed to trial; The Boeheim/SU team surely argued that DeJoseph decided correct, has a solid legal backing, and this should be the end of it.

While there's no specific indication of when the appeals court may announce its decision, the court's website last listed its next scheduled decision day to be September 27.

Once the appeal is decided, the losing party does have the option to ask for permission to appeal to the Court of Appeals -- the highest court in New York. But it's not an automatic right -- permission must be given by one of the judges hearing this appeal, or from the Court of Appeals itself. Relatively few cases make it to the Court of Appeals, so chances are the ruling of the Fourth Department will likely spell the end of this case unless it is remanded back to Onondaga Supreme Court to go to trial.

But this case will be over, eventually. I promise!

Labels: Defamation Lawsuit, Orange44 Lawdogs

Labels: Basketball, Football, Lacrosse, Legislation, Orange44 Lawdogs

Syracuse Athletics: It's always something, isn't it?

As has been widely reported in the Syracuse area, SU's former media director Roger Springfield appeared this morning in Onondaga County Court to be arraigned on an indictment charging him with felony unlawful surveillance. The indictment follows a month-long investigation by Syracuse Police and the Onondaga District Attorney's Office, in response to a disclosure directly from Syracuse University upon its discovery of some videotape evidence that seemed inappropriate. As is the tradition on this blog, we'll break down what the charge means, possible outcomes of the case, and the potential fallout for the Athletic Department.

Springfield, whose real name is evidently Roger Cahak, is charged with Unlawful Surveillance in the Second Degree, which in New York is a Class E felony. The crime is relatively new, becoming law in 2003 -- in response to evolving technology and the privacy concerns that follow. There are four potential theories upon which a person could be guilty of the crime, and based on reports I've seen at this point, it's unclear which of the four Springfield faces.

One theory is that when one acts for his own (or another's) amusement, entertainment, or profit, or to abuse or degrade a person, he intentionally uses an imaging device to secretly view, record, or broadcast a person dressing or undressing or shows his intimate parts at a time or place where the person has a reasonable expectation of privacy, without the person's consent.

The next theory is when one acts for his own (or another's) sexual gratification, he intentionally uses an imaging device to secretly view, record, or broadcast a person dressing or undressing or shows his intimate parts at a time or place where the person has a reasonable expectation of privacy, without the person's consent.

The third theory is when one acts with no legitimate purpose in using an imaging device to secretly view, record or broadcast a person in a bedroom, changing room, fitting room, restroom, toilet, bathroom, washroom, shower, or any room assigned to patrons or guests in a hotel, motel, or inn, without such person's knowledge or consent.

The final theory is when one acts to use an imaging device to secretly view, record, or broadcast, under the clothing being worn by the person, the sexual or other intimate parts of a person (i.e. "upskirting").

I could pretty certainly assume that theory number four doesn't apply here. So from there, the questions we will need to deal with include what Springfield's intent was, and whether there is a reasonable expectation of privacy in a college locker room. In the case of theory three, we know the "prohibited areas" or surveillance -- they're spelled out in the statute -- and the defendant charged under that theory would have to rebut the presuption that he acted with no legitimate purpose. In those instances, surveillance for crime or theft could be a legitimate purpose depending on the circumstances and the notice given to people entering those areas.

Whether there is a reasonable expectation of privacy in a college locker room seems to be an area of focus in this case, according to a statement made by Springfield's attorney. A quick search of NY cases doesn't turn up much concerning a reasonable expectation of privacy in locker rooms, so I'm not so sure why Springfield's attorney feels so confident. The way I see it, if I'm an athlete I have -- if nothing else -- an expectation that the only people who can see me change are my teammates, and maybe my coaches. A locker room is a large changing room -- with doors, no windows to the outside, and limited access. The people in the locker room are all in the same boat -- all exposed to each other, but only to each other. If that expectation did not exist, then the locker room itself would not exist -- the football players would take their pads and jock straps off right at the 50 yard line of Ernie Davis Legends Field, while the ESPN cameras are still rolling and the crowd is filing out the revolving doors.

And, of course, that's absurd.

And so, I have a feeling that Roger Springfield doesn't have much of a case. As an E felony, he faces a maximum of 4 years in state prison; however, he could get local jail time, or even probation. Possibly more damaging, however, is the possibility that a conviction for unlawful surveillance could require Springfield to register as a sex offender under New York's Sex Offender Registration Act.

To his credit, it appears Springfield fully cooperated with the investigation, and even provided additional evidence to the authorities. I'm still trying to get my head around that. So, assuming he has no criminal history, it seems likely that he'll escape having to serve any state prison or even local jail time. His attorney could even make a motion with the Court for this to not be treated as a sex offense, if the facts and circumstances of this case and of Springfield himself would make treatment as a sex offender unduly harsh to him.

While New York does its prosecution, it seems that other jurisdictions may not get involved. There are allegations that some of the surveillance could have occurred in Florida, but Florida seems content in letting New York deal with this. The possibility still exists that the Feds could get involved.

Today was merely the first step in the criminal process. Springfield was arraigned on the felony indictment handed up by the Grand Jury; he appeared in court, was apprised of the charges against him and had his rights explained to him, and the case now moves on to discovery and motions, as well as plea bargaining discussions between Springfield's attorney and the District Attorney's Office. Best case scenario, he gets probation with no sex offender registration. I guess time will tell.

I will say this: Syracuse University seems to have done everything right in this case. As evidenced in its official press release, SU discovered the problem, immediately reported it to authorities, and fully cooperated in the investigation. It also acted quickly in suspending, and then firing, Springfield. There was no cover-up, no referral to a law firm to investigate. So, you know, we've all learned a lot from the Bernie Fine thing.

Labels: Breaking The Law, Orange44 Lawdogs, Roger Springfield

Labels: Breaking The Law, Football, Orange44 Lawdogs

Labels: Bernie Fine, Orange44 Lawdogs, Syracuse Basketball

Labels: Bernie Fine, Defamation Lawsuit, Jim Boeheim, Orange44 Lawdogs

Labels: Bernie Fine, Defamation Lawsuit, Jim Boeheim, Orange44 Lawdogs, Syracuse Basketball

When I say "home cookin'," I don't mean that there was some undue influence in a Supreme Court Justice's decision to change venue of the Jim Boeheim defamation case from New York County to Onondaga County.  I simply mean that if the case goes to trial, Boeheim will get to stay around town and enjoy Juli's delicious home cookin'.  She has a great recipe for a cheesy ranch dip!

But seriously, Justice DeJoseph's ruling on Wednesday is a huge victory for the Boeheim/SU team.  All "home court advantage" references aside, you always want to try cases in a friendly court.  Now, by and large, this case involves a bunch of out of town lawyers, who probably have little or no experience in Onondaga Supreme Court.  So there is no advantage there, on either side.  But I think this ruling better meets the ends of justice, since a local court (with a local jury) can solve a local dispute.

The fact of the matter is, nobody outside the parties, lawyers, and some Syracuse fans care about this case.  If I'm on a Manhattan jury hearing this case, I'm thinking it's a waste of my time.  I'm thinking "Why am I hearing this case?  This has nothing to do with NYC."  And that, at its core, was the argument of the defense: venue was not proper in NYC.  No parties reside there.  The alleged tort (defamation) didn't occur there.  The law in New York states that venue is proper in the county in which at least one party resides.  If you're keeping score at home: Onondaga - Boeheim, SU, Davis; Oswego - Lang; New York County - zero.

So really, the burden was on the plaintiffs -- Davis and Lang -- to show that they could not get a fair trial in Onondaga County, where venue would otherwise be proper.  And this is exactly what the Court zeroed in on: could they prove they would not get a fair and impartial jury?  Not a probably.  Not a maybe.  Justice DeJoseph said in his decision that the arguments against venue in Onondaga County "equate to nothing more than mere beliefs, suspicions, and a feeling of possible bias.  This is insufficient to retain venue in New York County."

Though plaintiff's attorney Gloria Allred, when reached for comment, said that the change of venue doesn't change her resolve, and that they will continue to fight on, it's clearly a big blow to her case.  She wanted to try this case in the big lights of the Big City.  She wanted to be able to wake up at 8am, call an 11am press conference, and have a ton of cameras there.  Not quite so easy to do that when she's in Syracuse.  She wanted to take advantage of NYC juries, who typically award a much higher amount of damages than other counties.  That in large part is due, of course, to the different standard of living.

But really, let's not kid ourselves.  This case will never be in front of a jury.  The change of venue, while important, will ultimately have no bearing on this case.  Next up is the motion to dismiss, filed by the defense with the Court in NYC.  All papers filed there will be transferred to Onondaga, to be scheduled there.  If this case survives that motion to dismiss, which we've surmised it won't, then I would imagine the parties step up the efforts at discussing a settlement.  The terms of any settlement will never be made public -- whether or how much money exchanged hands, or anything else.  Or, at least, I assume that would be the term of any settlement reached.

But what do I know?  Sean Keeley and his commenters at NunesMagician.com have this all figured out!

Labels: Defamation Lawsuit, Orange44 Lawdogs