DA Says He Can’t Prosecute Abuse Claims

By Roger Rubin (NY Daily News)
December 7 2011

SYRACUSE, N.Y. - Onondaga County District Attorney William J. Fitzpatrick said Wednesday that after reviewing allegations of child sexual abuse by former Syracuse basketball associate head coach Bernie Fine, his office cannot bring any charges because the statute of limitations has passed.

He added that he believed two of the accusers, former ball boys Bobby Davis and Mike Lang, to be "credible."

"On almost every single criterion, Bobby Davis came out as a credible person," Fitzpatrick said at the criminal courthouse building in Syracuse. "Mike Lang also comes across as a credible person."

Fitzpatrick did not say the same about two other alleged victims who have come forward, Zach Tomaselli of Maine who said Fine abused him during a 2002 Orange road trip for a game in Pittsburgh, or a man reported by the Daily News to have told family members he was assaulted by Fine.

Fitzpatrick said his office investigated Tomaselli's allegation that he was abused Jan 21 or 22, 2002, in Pittsburgh, which is now being probed by the United States Attorney's office.

As a result of that investigation he said he is now required to turn over to both U.S. Attorney Cy Vance and Fine's lawyers "exculpatory evidence" that includes details and records of team travel arrangements as well as "school records from Copenhagen School District relating to (Tomaselli's) attendance on the days in question."

"It appears now that there is proof that Tomaselli fabricated this allegation," Fine’s lawyers, Donald Martin and Karl Sleight said in a statement Wednesday. "The incredible damage that Tomaselli has inflicted on Mr. Fine cannot be overstated."

He said victim No. 4 is currently serving a life sentence as "a persistent felony offender" and that his office was aware of multiple correspondence between him and law enforcement "which would - to say it charitably - belie his claims of sexual abuse at the hands of Bernie Fine." That correspondence, too, was turned over to Fine's attorneys, Fitzpatrick said, adding, "There is no victim No. 4."

Robert Hoatson of Road to Recovery, a New Jersey organization that counsels sexual abuse victims, told the Daily News and other media outlets that a Syracuse-area woman who claimed her nephew had been molested by Fine had contacted him last week. Hoatson has said he did not speak with the alleged abuse victim. He said he is planning on meeting with the family next week.

He noted that Lang did not come forward until years after Davis first accused Fine of sexual abuse, and he said it is not uncommon for victims to be in denial because they feel ashamed and humiliated.

Hoatson called on New York lawmakers to reform laws that bar civil suits and criminal prosecution in sexual abuse cases because of statute of limitations issues.

"People in New York state can't seek justice because of antiquated laws," he said. "People don't speak out because they fell they have Fine has denied any wrongdoing.”

Syracuse fired Fine Nov. 27 after the tape of a surreptitiously-recorded phone conversation between Davis and Fine's wife, Laurie, was aired by ESPN. In the conversation, she appears to admit knowledge of her husband's crimes and confirm Davis' abuse allegations.

In judging Davis and Lang to be credible, Fitzpatrick first pointed to Davis’ efforts to report the abuse to Syracuse Police in 2002 and to the Post-Standard and ESPN shortly after, as well as to Syracuse University in 2005. Fitzpatrick added that the consistency of Davis' story, the fact that Lang came forward with corroboration, the recorded conversation with Fine's wife, and an additional interview made for a case in which "allegations could ethically be presented in a court of law."

On Nov. 20 Fitzpatrick's office interviewed an unnamed person who he described as having "significant inside information about the Fine household that 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."

Of the Laurie Fine-Davis tape, Fitzpatrick said, "The significance of this tape cannot be overstated. Anyone listening to that tape, which will be authenticated by federal authorities, cannot fail to understand that Bobby Davis is being truthful."

Fitzpatrick lamented that no one in law enforcement heard or was even made aware of the tape prior to it being aired on ESPN on Nov. 20. He appeared to be disconcerted by the fact that the tape, which he said was made by Davis at the direction of a Post-Standard reporter, was only provided to the Post-Standard and ESPN.
"Incredible as it is, it seems the only person who was made aware of the tape was Laurie Fine, herself a possible target of criminal charges," Fitzpatrick said, "thus depriving law enforcement of an investigatory lead by trying to catch her in a inconsistency or a discrepancy."
He had other harsh criticisms of the different entities that conducted investigations of the claims, but refused to call their lack of co-operation at the time "an institutional breakdown. He said no one from the Syracuse Police was instructed to cover-up or downplay Davis' 2002 allegation despite the fact that then-police chief Dennis DuVal was a former Syracuse player. He said he could not understand why the police had to be subpoenaed to turn over the notes from that complaint to Fitzpatrick's office last month.
After Davis emailed Syracuse Chancellor Nancy Cantor in 2005 with allegations, he said she referred Davis' claims to human resources and that the Syracuse law firm of Bond, Shoeneck and King was hired to conduct the school's probe, which Fitzpatrick termed "inadequate" after reviewing it.
The law firm interviewed Davis, Bernie and Laurie Fine, an unidentified member of the Syracuse University athletic department, head coach Jim Boeheim, and an individual Davis thought might also have been a Fine victim. Fitzpatrick said the report revealed that all but Davis denied wrongdoing and said the member of the SU athletic department confirmed that Davis complained to him about sexual abuse but the "individual was unsure what he did with any of that information."
He said Cantor cannot be blamed for entrusting the law firm she hired; another law firm is now reviewing the original report. He said Boeheim's recent apology was sincere and that Boeheim can only be blamed for "trusting a friend of 40 years" for first vehemently defending Fine when the allegations surfaced.
Fitzpatrick called the pattern of Fine's alleged crimes "unusual" in his office's extensive experience prosecuting child sexual abuse. He said that in most cases there is an escalation between the perpetrator and victims to penetration or intercourse, but that Fine's alleged molestation of boys stopped at "manually" abusing them.
Unless another accuser comes forward - something Fitzpatrick encouraged - his office won't be able to file charges.
"But for the obvious problem of the statute of limitations, their allegations would have resulted in the arrest of Bernie Fine, at least for the misdemeanor charge of sexual abuse in the third degree," Fitzpatrick said. "I make no judgment as to what the outcome of a trial would have been, or whether Mike Lang and Bobby Davis could have withstood the rigors of cross-examination, and it is not my place to pronounce Bernie Fine guilty of anything."
Fitzpatrick lamented that no one in law enforcement heard or was even made aware of the tape prior to it being aired on ESPN on Nov. 20. He appeared to be disconcerted by the fact that the tape, which he said was made by Davis at the direction of a Post-Standard reporter, was only provided to the Post-Standard and ESPN.

"Incredible as it is, it seems the only person who was made aware of the tape was Laurie Fine, herself a possible target of criminal charges," Fitzpatrick said, "thus depriving law enforcement of an investigatory lead by trying to catch her in a inconsistency or a discrepancy."

He had other harsh criticisms of the different entities that conducted investigations of the claims, but refused to call their lack of co-operation at the time "an institutional breakdown. He said no one from the Syracuse Police was instructed to cover-up or downplay Davis' 2002 allegation despite the fact that then-police chief Dennis DuVal was a former Syracuse player. He said he could not understand why the police had to be subpoenaed to turn over the notes from that complaint to Fitzpatrick's office last month.

After Davis emailed Syracuse Chancellor Nancy Cantor in 2005 with allegations, he said she referred Davis' claims to human resources and that the Syracuse law firm of Bond, Shoeneck and King was hired to conduct the school's probe, which Fitzpatrick termed "inadequate" after reviewing it.

The law firm interviewed Davis, Bernie and Laurie Fine, an unidentified member of the Syracuse University athletic department, head coach Jim Boeheim, and an individual Davis thought might also have been a Fine victim. Fitzpatrick said the report revealed that all but Davis denied wrongdoing and said the member of the SU athletic department confirmed that Davis complained to him about sexual abuse but the "individual was unsure what he did with any of that information."

He said Cantor cannot be blamed for entrusting the law firm she hired; another law firm is now reviewing the original report. He said Boeheim's recent apology was sincere and that Boeheim can only be blamed for "trusting a friend of 40 years" for first vehemently defending Fine when the allegations surfaced.

Fitzpatrick called the pattern of Fine's alleged crimes "unusual" in his office's extensive experience prosecuting child sexual abuse. He said that in most cases there is an escalation between the perpetrator and victims to penetration or intercourse, but that Fine's alleged molestation of boys stopped at "manually" abusing them.

Unless another accuser comes forward - something Fitzpatrick encouraged - his office won't be able to file charges.

"But for the obvious problem of the statute of limitations, their allegations would have resulted in the arrest of Bernie Fine, at least for the misdemeanor charge of sexual abuse in the third degree," Fitzpatrick said. "I make no judgment as to what the outcome of a trial would have been, or whether Mike Lang and Bobby Davis could have withstood the rigors of cross-examination, and it is not my place to pronounce Bernie Fine guilty of anything."