Fordham Law


Legal experts say Onondaga County District Attorney William Fitzpatrick overstepped his boundaries

James Cohen in Syracuse.com, December 09, 2011

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Syracuse, NY -- Onondaga County District Attorney William Fitzpatrick said his lengthy news conference Wednesday — carried live on ESPN — fulfilled a promise to inform the public about his office’s work on the Bernie Fine case. But several lawyers and legal scholars contacted by The Post-Standard say he may have informed the public a little too much — running the risk of interfering with the ongoing federal investigation of Fine.

In front of a bank of microphones and television cameras, Fitzpatrick spoke and answered questions for 51 minutes in a wide-ranging discussion of the case and his office’s part in it. He confirmed that his office will not be pursuing the case any further because the allegations of the first two men who accused Fine of sexual molestation — Bobby Davis and Mike Lang — are beyond the statute of limitations, and the third accuser — Zach Tomaselli — claims he was molested in Pittsburgh, outside of Fitzpatrick’s jurisdiction.

About a rumored fourth accuser, he said, “There is no fourth victim.”

Given the fact that the Syracuse police and federal Secret Service are still investigating allegations against Fine, Fitzpatrick’s comments raised eyebrows in a number of areas. Federal prosecutors refused to comment. But others were wondering what those prosecutors must have been thinking as the district attorney gave his take on their case.

Some local lawyers said they’d never seen a prosecutor publicly assess the credibility of accusers and the weight of evidence in a case that’s under investigation by another prosecutor’s office. “The problem that I see is that he’s putting the power of his office behind a particular viewpoint and he might be infringing on a matter over which he concedes he lacks jurisdiction,” local criminal defense lawyer James Hopkins said.

Defense lawyer Scott Porter agreed. “I was surprised to see the district attorney weighing in on new allegations because I thought they were under investigation by the feds,” he said.

Entire DA Fitzpatrick's news conference on Bernie Fine investigation
 
Onondaga County District Attorney William Fitzpatrick's news conference on the Bernie Fine investigation, in its entirety. NOTE: due to technical limitations of the camera that has a 20-minute buffer, there is a cut near the 20- and 40-minute marks where the camera had to stop and restart.
» Watch excerpts from the news conference here

Watch video
 

‘It’s not his case’

Perhaps most surprising was Fitzpatrick’s announcement that he had obtained evidence that cast doubt on the abuse allegations brought by Tomaselli. Tomaselli alleges he was abused by Fine in Pittsburgh in 2002, and his case is still within the federal statute of limitations.

Fitzpatrick strongly implied that attendance records from the Copenhagen school district and travel and hotel records from Syracuse University undercut Tomaselli’s allegations. He said he would turn over those records to Fine’s defense lawyer because he is required to by law.

Fordham Law School Professor James Cohen, a former defense attorney, said that alluding to the veracity of an accuser in an ongoing investigation — particularly one that is not being pursued by his office — is improper. “This is very unusual, to have this stuff going public,” he said. “There are ethics involved because it’s not his case.”

Bennett Gershman, a professor of criminal law at Pace Law School and a former prosecutor in Manhattan, agreed, saying such statements could prejudice any legal proceedings that might be brought against Fine. Cohen, Gershman and Jim Coleman, who teaches ethics at Duke Law School, said it is extremely unusual for a prosecutor to publicly hand over exculpatory material to the defense before any arrest has been made — particularly if another agency is pursuing the case.

“It’s more than unusual,” Gershman said. “It’s incomprehensible to me why he would do something like that.”

The law requires such materials to be turned over to the defense at some point before a trial. But Fitzpatrick had no obligation to provide it now, much less to announce publicly that he was doing so, the professors said. They said it should be turned over to the prosecutors pursuing the case — the U.S. Attorney’s Office — who would make the strategic decision about when to give it to the defense.

Fitzpatrick denied Thursday that he did or said anything improper. “Nothing I said could prejudice any case that might be brought in federal court six months from now,” he said.

He maintained he said nothing about Tomaselli’s credibility — just that he was turning over the exculpatory material to the defense. He directed further questions about the Tomaselli case to federal authorities.

Fitzpatrick said he is right in turning over the material to the defense now. It is “completely wrong” to say exculpatory material only needs to be turned over once there is a defendant facing criminal charges, he said. “I wouldn’t want any one of my assistant prosecutors being taught by a law professor who says otherwise,” Fitzpatrick said.

He said defense lawyers Donald Martin and Karl Sleight are making decisions regarding their representation of Fine and need to know what the prosecution has as soon as possible.

Hopkins, the local defense lawyer, said that in Onondaga County criminal cases, prosecutors often don’t turn over exculpatory evidence to the defense because there are disagreements about whether the material is actually favorable to the defense. “If this signals a change, I think that’s a great thing,” he said. “A little more openness between the DA’s office and the defense attorneys might lead to a quicker resolution of a lot of cases.”

Fitzpatrick said any assertion that defense lawyers typically have to fight to get exculpatory material from his office is “completely false.”

A message to send

During his news conference, Fitzpatrick said he was convinced of the credibility of the first two accusers, Bobby Davis and Mike Lang. While he said “it’s not proper for me to say that Bernie Fine is guilty,” he said that an interview by investigators in his office “left one with little doubt that an inappropriate relationship existed between Bobby Davis and Bernie Fine and that Laurie Fine was well aware of its existence.”

He said that if not for the statute of limitations, he would arrest Fine and charge him with third-degree sexual abuse.

Coleman, the Duke professor, said it is improper for a district attorney to publicly assess the credibility of accusers or the weight of evidence against the accused if he does not intend to pursue a case. “Prosecutors are ethically not supposed to do that,” he said. “Either you indict the person and you prosecute him or you just keep your mouth closed, because it’s unfair to Fine. There’s basically no way for him to challenge what the prosecutor says.”

“I think it’s improper,” said Gershman, of Pace. “I think it’s misconduct for a prosecutor to use the public forum and the power of his office to assert that the suspect is guilty, which he in effect did.”

Fitzpatrick defended his support of Davis and Lang. “These two young men had been completely vilified in the press by bloggers and letter writers and others,” he said. “If Bernie Fine had been facing any charges, I would not have commented.”

He said he very easily could have delivered a 30-second statement reporting that there were no charges prosecutable because of the statute of limitations in Davis’ and Lang’s cases, but that would have sent the wrong message to the next child abuse victim looking for help. “The day that I cannot speak out on behalf of a child abuse victim is the day I don’t want to be DA,” he said.

As for the possible fourth victim, Fitzpatrick said only that there are letters in his office files from previous prosecutions that contradict any accusations the victim is making against Fine. He declined to discuss that any further. Wednesday, he said he was sharing that information with the Manhattan District Attorney’s Office, although he offered no further explanation.

Fitzpatrick’s news conference came days after the full Syracuse police file on the Fine investigation was handed over to his office.

Two weeks ago, Fitzpatrick and police Chief Frank Fowler became mired in a public dispute over access to investigative reports. On Nov. 21, the district attorney’s office obtained a subpoena from state Supreme Court Justice James Murphy for all the police records from the past and current investigations of the Fine allegations.

The lawyers were back in court last week, which resulted in the police turning over to the district attorney the full file on the Fine investigation, Fitzpatrick said.