My view... | Syracusefan.com

My view...

jsshap

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As one with a fair amount of experience conducting and advising companies re: internal investigations, here are my thoughts -

First, from a legal standpoint, the ultimate question of whether the accusations are accurate means very little in the context of Boeheim or SU. Its very possible we never know with certainty the answer to that question, but setting that aside...I've seen many comments that JB and Schwartz both went "all in" and one of them will lose their job at the end of this. I do not understand that and legally speaking that does not make sense, absent some additional information coming forward that Boeheim/SU knew or turned a blind eye, etc. I think PSU has caused the nation, and many on this Board, to take an inaccurate view of the extent to which a a staff member's culpability can indict a school or a head coach. So, if others come forward and it appears likely or certain that Fine is guilty, yet it still appears that Boheim had no idea, or reason to know, and was truthful in his opinions given in the last week, he will not have done anything wrong (save some poor judgment in not measuring his words more carefully) and there would be no legal reason to terminate him (perhaps a PR one, though I would not even understand that). Even then this would be nothing like Penn State. Not even close.

Second, with respect to SU, from what I can tell, the school did exactly what an employer should do when it receives a serious complaint like this -- thoroughly investigate. These investigations are often investigated w/o counsel, but for the more serious accusations retaining counsel is normally prudent. It is absolutely inconceivable to me that an investigation led by a reputable law firm would be anything less than thorough or that it would be conducted with a pre-determined conclusion. To the contrary, I expect the law firm has thorough notes of its interviews and its reasoning and conclusions are clearly set out and factually supported. These investigations often require that credibility determinations be made. In this context, it really does not matter if the ultimate conclusion -- that the accuser was not sufficiently credible -- proves incorrect. Employers are not required to reach the correct answer -- that is an impossible standard -- they are required to investigate sufficiently and then take whatever action is dictated by its findings. Two employers with identical facts may reach different conclusions -- and there is nothing wrong with that. So, as with JB, if the only new facts we learn is additional information proving, or at least suggesting, that Fine is guilty, that does not mean SU did not handle this properly. As an aside, I do not understand the questions of whether SU told the police in 2005 if, as I understand, the police told SU in 2003 that the SOL had run. What would be the point in that? Also, these investigations are often conducted with the intention of not asserting an a/c privilege over it -- SU may one day elect to produce this investigative report to show exactly what it did any why it concluded as it did.

Likewise, even if Fine is ultimately shown to be guilty, or likely guilty, that does not change how one should judge Schwartz. His handling of this has been unconscionable, unless he knows more than I understand him to know at this time. If 2 more accusers came out tomorrow, that would be irrelevant to an assessment of whether he handled this properly. Perhaps the fact that the police opened an investigation was enough to give him the green light to go with the story -- that is a question for the journalism experts -- but a common sense view of his actions and his unbelievable effort to persuade the viewers and indict Fine seem way beyond any definition of professionalism.

I do not mean to suggest from any of the above that Fine is likely guilty. I have no idea, and thereline lies the absolutely tragedy to Bernie if he is innocent. It is hard to believe that Bernie is guilty if no one else steps forward, so with each day I become more hopeful he is not, but its also hard to understand why the police are investigating in 2011 allegations they looked into in 2003 simply because a prior witness now says "me too." That does not make sense, but perhaps that is SOP when a victim's claims are corroborated, albeit by one who previously said otherwise.
 
Great post. Many thanks for clarifying many outstanding issues.

One more question. Given the SOL, are there any scenarios where Bernie could be served with a criminal and/or civil charge.
 
yes...if he was molested or claims molestation in a state that has a longer run SOL...such as Lousianna...30 years after age 18.
 
Great post. Many thanks for clarifying many outstanding issues.

One more question. Given the SOL, are there any scenarios where Bernie could be served with a criminal and/or civil charge.

Criminal - No. Many states do not have SOL for crimes, at least for felonies. I have not practiced criminal law in over 10 years, but was surpised NY's crimimal code has a SOL. But since it does, no.

Civil -- Anyone can a file a lawsuit, even an untimely one. But with something this clearly time barred, that seems highly unlikely, as it would be quickly dismissed and any party/lawyer who filed it could be sanctioned for doing so w/o a good faith belief it was supported by law and fact.
 
yes...if he was molested or claims molestation in a state that has a longer run SOL...such as Lousianna...30 years after age 18.

Good point. I had not thought of charges outside NY. Still seems highly unlikely for many reasons, but, yes, possible.
 
It seems to me that the involvement of a police and/or DA investigation at this point is largely for public relations reasons. Hence the mayor commenting, etc. Since her remarks referenced the investigation to the time period 2002-2011 it would appear they simply trying to verify that no ongoing crimes are occurring and that they are comfortable that they have an accurate picture of Pre-2002.
 
Here's a question. Now that SU has provided Fitzpatrick with a copy of its 2005 investigation, does that make that report obtainable through a FOIA request once the DA's investigation is finished?
 
Ps it is a federal charge if you cross state lines with a minor to commit such acts, is it not? Maybe another group can start investigating!
 
Here's a question. Now that SU has provided Fitzpatrick with a copy of its 2005 investigation, does that make that report obtainable through a FOIA request once the DA's investigation is finished?

I am not sure. SU cannot claim attorney-client privilege over the report once it gives it to a third-party such as the DA. There is a "work-product" privilege that may apply and which is often not waived by giving it to a third party (unless the third-party is adverse), so its possible that privilege could still be asserted (not that SU will be inclined to resist any efforts by the public to obtain it). I do not know whether and when the police can refuse to disclose information in a police file in response to a FOIA, obviously during the pendency of an investigation, but after that I'd guess its obtainable absent the assertion of a privilege by SU.
 
I am not sure. SU cannot claim attorney-client privilege over the report once it gives it to a third-party such as the DA. There is a "work-product" privilege that may apply and which is often not waived by giving it to a third party (unless the third-party is adverse), so its possible that privilege could still be asserted (not that SU will be inclined to resist any efforts by the public to obtain it). I do not know whether and when the police can refuse to disclose information in a police file in response to a FOIA, obviously during the pendency of an investigation, but after that I'd guess its obtainable absent the assertion of a privilege by SU.

Great answer. Thanks for the insight.
 
this will probably get deleted , but jake is the one who said boeheim gets fired if bernie proven to be guilty...hopefully jake wishes he never said that...jake is all in boeheim fired..im all in jake jumped the gun
 
From a story now up on Syracuse.com:

"Monday, Onondaga County District Attorney William Fitzpatrick went to court and obtained a subpoena requiring the police to turn over the records from 2002 to the present for presentation to a grand jury today, he said.
But when that subpoena was delivered to Deputy Chief Sean Broton, it was rejected, the district attorney said."

Um...how can you "reject" a subpoena?
 
but its also hard to understand why the police are investigating in 2011 allegations they looked into in 2003 simply because a prior witness now says "me too." That does not make sense, but perhaps that is SOP when a victim's claims are corroborated, albeit by one who previously said otherwise.

I think that they are investigating today because they quite possibly butchered the original "investigation" -- if they dealt with it by simply saying the SOL has passed - nothing we can do. I think the SPD owes it to the community to do something to determine that they haven't been tipped to the existence of a sexual predator that they chose not to follow up on. That and with all of the attention that the allegations have gotten due to PSU and the high visibility of the accused I'm sure the SPD, Mayor and DA all feel some level of pressure to do something even if it isn't likely to lead to anything, just so they can later say that they did in fact do something.
 
Ps it is a federal charge if you cross state lines with a minor to commit such acts, is it not? Maybe another group can start investigating!

Interesting that you mention that...

MichaelBenny Michael Benny

DA tells me US Attorney's office brought in to #BernieFine case - for possible jurisdiction on out of state allegations.
 
From a story now up on Syracuse.com:

"Monday, Onondaga County District Attorney William Fitzpatrick went to court and obtained a subpoena requiring the police to turn over the records from 2002 to the present for presentation to a grand jury today, he said.
But when that subpoena was delivered to Deputy Chief Sean Broton, it was rejected, the district attorney said."

Um...how can you "reject" a subpoena?

Better question is how can the SPD and DA not be working together??? Can't be a lot of crime in Syracuse being effectively prosecuted if they don't have a better working relationship than that.
 
JB's "poor judgement" on a very sensitive subject could be more than enough for the university to deem him an unsuitable representative, if the accusers are proven correct. I believe it would be.

As one with a fair amount of experience conducting and advising companies re: internal investigations, here are my thoughts -

First, from a legal standpoint, the ultimate question of whether the accusations are accurate means very little in the context of Boeheim or SU. Its very possible we never know with certainty the answer to that question, but setting that aside...I've seen many comments that JB and Schwartz both went "all in" and one of them will lose their job at the end of this. I do not understand that and legally speaking that does not make sense, absent some additional information coming forward that Boeheim/SU knew or turned a blind eye, etc. I think PSU has caused the nation, and many on this Board, to take an inaccurate view of the extent to which a a staff member's culpability can indict a school or a head coach. So, if others come forward and it appears likely or certain that Fine is guilty, yet it still appears that Boheim had no idea, or reason to know, and was truthful in his opinions given in the last week, he will not have done anything wrong (save some poor judgment in not measuring his words more carefully) and there would be no legal reason to terminate him (perhaps a PR one, though I would not even understand that). Even then this would be nothing like Penn State. Not even close.
 
Neither JB nor Schwarz broke a law. However both will face serious PR flack that likely gets them fired if this is proven to be a hoax or if there is a smoking gun. Since neither will likely happen, both will be safe.
 
JB's "poor judgement" on a very sensitive subject could be more than enough for the university to deem him an unsuitable representative, if the accusers are proven correct. I believe it would be.

I disagree, but if that is the case, I dont understand why the judgment is made worse by the ultimate question of innocence or guilt -- assuming all other facts re: the same -- so if that is what you believe university would or should deem, it should do so regardless of results of investigation.
 
this will probably get deleted , but jake is the one who said boeheim gets fired if bernie proven to be guilty...hopefully jake wishes he never said that...jake is all in boeheim fired..im all in jake jumped the gun

JB said Davis is a liar, not just about the hotel room, but also generally "thousands" of lies. If Davis is proven correct, JB is gone.
 
JB said Davis is a liar, not just about the hotel room, but also generally "thousands" of lies. If Davis is proven correct, JB is gone.

I don't think JB was just talking out of his a$$...

JB knows these guys well enough to make an accurate judgement about their character. I have known a few people that look & act like these accusers, & they are generally cut from the same cloth...

Very strange behavior, indeed... I would not be surprised if they are drug abusers & liars, as well as thieves...

Maybe so, maybe not... But my discernment of these types is often accurate.
 
I disagree, but if that is the case, I dont understand why the judgment is made worse by the ultimate question of innocence or guilt -- assuming all other facts re: the same -- so if that is what you believe university would or should deem, it should do so regardless of results of investigation.

The question of whether JB stays or not extends beyond the Bernie incident, if Fine is guilty. I'd weigh in previous arrests/incidents in the basketball program. It seems like "incidents" involving the team -- some reported and some not, I'm guessing -- have occured on a regular basis under JB. Maybe that's just perception on my part and the reality is that the hoops team is no more guilty than other big-time teams. However, you still have to ask whether there exists a consistent pattern of "problems" coupled with the serious escalation in those "problems" that a Bernie conviction would represent. I mean, when is enough enough? Nancy should re-evaluate the whole basketball enterprise if this goes bad for us.

The other key question is, what's the best way to protect the brand? SU hoops is the school and the city's most valuable brand. A school with a limited endowment and a city with a bad economy needs it from a tangible bottom-line standpoint. People can get holier-than-thou about victims being the main issue here (and they are) but there is serious money on the line for the school and the city - no getting around it. If getting rid of JB is the best way to save the brand, then we need to remember that no one person is bigger than the school.
 
I think if Fine is found guilty.JB will be so hurt that he will simply walk away.
 
Publicly insulting someone who turns out to be a slimeball would be OK. Publicly insulting someone whose life was wrecked by the person you're defending is unconscionable and you should no longer be the public representative of anything.

I disagree, but if that is the case, I dont understand why the judgment is made worse by the ultimate question of innocence or guilt -- assuming all other facts re: the same -- so if that is what you believe university would or should deem, it should do so regardless of results of investigation.
 
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Publicly insulting someone who turns out to be a slimeball would be OK. Publicly insulting someone whose life was wrecked by the person you're defending is unconscionable and you should no longer be the public representative of anything.

I believe this will be the case IF Fine is proven to be guilty. Too many here are over simplifying JB's defense of Bernie as his unalienable right to strongly express his personal opinion, which would have been OK if he stopped there. He did not. He went much, much further. He defamed the accusers as liars and said their motives were about money. Perhaps they are, and JB will in fact be a HERO for the tenacity of his defense, his loyalty, and his willingness to put his reputation (among other things) on the line. But, IF Davis is in fact a victim (i.e., others come out and collaborate his story)...JB's defamation of Davis's character will be, at the very least, morally unconscionable and publically reprehensible. SU will have no choice but to distance themselves from him.
 
When I say OK, I mean survivable. If JB takes Nancy's calls, she should already have beat the hell out of him for what he said.

Publicly insulting someone who turns out to be a slimeball would be OK. Publicly insulting someone whose life was wrecked by the person you're defending is unconscionable and you should no longer be the public representative of anything.
 

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