Frank Policelli, Esq.


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My View (12/14/12):  - More on the Syracuse Sex Scandal

The latest turn in the sexual scandal publicity surrounding Syracuse University now focuses on Coach Jim Boeheim.  Bernie Fine’s accusers (note how I avoid the word “victim” since that word only describes someone who was legally found to be the end result of a crime) are now suing the University and Boeheim for money damages for defamation based on Boeheim’s comments when this story just broke that these accusers were liars and were only looking for money. (Let me see if I have this straight: they’re suing for money to prove they were not seeking money?)

In order for the complainants to succeed they must prove that Boeheim’s comments were false and that as a result they have been damaged.  Truth is an absolute defense in a defamation allegation.

It seems to me that when Boeheim made these comments he must have been aware of the University investigation that found these allegations to be without merit.  (Keep in mind that whether the University’s findings were ultimately correct or not is completely irrelevant to Boeheim’s state of mind and his beliefs when he made those comments.)  It seems pretty reasonable to me that if the University found these accusers unworthy of belief years ago Boeheim is justified in calling them liars.  The fact that they have clamored for publicity by hiring a lawyer such as Gloria Allred (how many successful jury trials has she ever had?) proves the point that they’re looking for money.  She has already publicized the complainants as saying they have suffered damages solely as a result of Boeheim’s comments.  I seriously doubt any New York jury will buy that.  The complainants had the so-called damning tape years ago and never played that card, so how honest and sincere do you really think they are?  Bill Fitzpatrick’s bolstering comments about their credibility reek of bias and jealousy that the Syracuse police went to the Feds and not him, and certainly have no credence on the actual credibility of the complainants that can only be determined by a jury.

Any reasonable person in the shoes of Jim Boeheim who had the knowledge of the facts as they existed at the time his comments were made would be hard-pressed to believe that they were not made in a good faith belief on the part of Boeheim that the complainants were liars and were only looking for money.  What evidence is there that says otherwise? 

My View (12/1/12): Bernie Fine, Bobby Davis et al

 I believe I’m qualified to blog about the above cases due to my extensive experience as a lawyer for close to forty years. I have represented many sexually abused children civilly against the Catholic church and political officials and I have also represented dozens of persons accused of such crimes and related crimes (i.e., child porn) in both state court and Federal court, especially the Northern District of New York.  So, from a legal point of view I know these cases from both sides of the fence so to speak.  But I also have a third angle.  As a parent of 11-year-old triplets who have the potential to play Division I sports there is a need to be sure I can be confident in institutions of higher learning.

I think one of the worst things  that can be done to someone is to react emotionally to a situation such as this and condemn someone who has spent a lifetime building a reputation.  This is one of the main reasons I am proud to be a criminal defense lawyer.  These grandstand media plays by ESPN in the wake of the Penn State scandal is great business for ESPN but at the expense of the justice system.  The sideshow has truly taken over the circus when judgment is made through ESPN and  not the criminal justice system.

The presumption of innocence is not some charade but is critical to a person’s liberty and when judgment is made you can’t go back a la former Sec. Ray Donovan after his acquittal in the early eighties when he asked, “Now where do I go to get my reputation back?”  So, we don’t know if Bernie Fine committed any of the several allegations that have not even formally been made.  We are exposed to a taped conversation of Bernie’s wife to the accuser that raises more questions than it is probative of guilt.  What happens if she’s subpoenaed and given immunity?  Would the prosecutor risk that her testimony would be that she was lying on the tape because she wanted to have sex with the boy? So, what corroboration is there?

Before I sued ed Hanna the former Mayor of Utica or Fr. Quinn for their sexual abuse I had the evidence.  There was no bluffing and no shakedown.  I had Hanna on several tapes and I had Quinn through witnesses, photos, medical records, letters, etc.  In the Quinn case the Court of Appeals would not rule that the statute of limitations can be tolled in New York due to equitable estoppel.  Hanna and the City of Utica settled.  The point is I would want to be sure that the victim’s story could be corroborated because I would hate to convict an innocent man.  When I was representing victims in the Catholic Church sexual abuse cases I came across a lawyer who tried to get me to take a client who claimed to be abused by Quinn.  I interviewed h9im and found him to be a fraud and refused to take his case.  His lawyer wanted to pursue the claim even though I told him that I knew the guy was lying.  So, I know there are frauds out there and unethical lawyers.  That is why corroborative evidence is necessary.

The key to corroboration appears to be the taped conversations between Bernie’s wife and the alleged victim.  In order for that tape to be damaging the wife has to testify.  If she’s a lunatic and Bernie’s defense is “I’m married to a lunatic who is liable to say anything, anytime whether she means it or not” she will not be credited.  That leaves us with the uncorroborated word of the alleged victim.  His brother is no more corroboration than an accomplice would be.  Corroboration must be something that can connect Bernie to the act claimed by the accuser.  Self-serving statements do not suffice.

The wife should get a lawyer.  I think the approach that the victim concocted the tape isn’t going to fly unless you are 100% sure it has been doctored  -- and of course the chances of that are pretty slim.  But that tape standing alone without the wife’s testimony is hearsay to Bernie who would be denied his right of confrontation – so the tape would not be admissible.   

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