Saturday, November 26, 2011


Racing engines, flashing lights and a rain of spent brass ringing like tiny bells as they fall to the asphalt - those are the stuff of police dramas. Also...long legs, plunging necklines and double entendre. Is that the plural?

Largely forgotten, unless made compelling by a sad story line in search of a cause, is the arcane world of criminal law. Every officer operates under must/may/cannot statutory language which is often tortured and confusing. While we have repeatedly advocated laws of general application (Misdemeanor "Guilty of Something"; "Driving with Head Up Ass") we are compelled to apply the laws our legislatures (in their infinite wisdom) have written in a way our courts (in their infinite inventiveness) have interpreted. Mostly it works, but sometimes it doesn't and cops aren't the ones who suffer. The victims are.

Countless times a true victim has brought a case to police only to be told that they arrived too late. We could investigate up a storm and nothing would come of it. Are we lazy, stupid or unfeeling? Hardly.

We, and our victim, are shit out of luck. Welcome to the strange world of the statute of limitations.

Bear with me - this isn't what you think.

Blogs about legal technicalities are horrible to read (if read at all) and especially painful to write. Even law geeks like me shudder when facing blog titles such as "New Thoughts on the Statute of Frauds." Don't ask.

But, occasionally, these lesser known considerations intersect with law enforcement's duty to seek the truth and it's broader charge - justice for the victims, the accused, and society. This is apparently the case at beloved Syracuse University, where I studied law in the 80s. An assistant basketball coach was accused of having persistent, unlawful sexual contact with two young men associated with the program, but "nothing was done."

Newspaper accounts, interviews and statements by various officials agree, in large part, on the following: there were accusations of criminal conduct, the character of which is still a bit murky; at the time the accusations were made many years had passed since the criminal conduct; the Onondaga County DA had a meltdown when he was discussing the Syracuse Police Chief, and; whatever happened, the passing years don't help anyone find the truth.

Also - whatever happened in New York in the 80s, police are relatively powerless to act, because New York law makes prosecution unlikely. The statute of limitations says so.

For reasons that are becoming obvious, common law (the old stuff) and modern statutory law provide that, after designated periods of time, it's just been too long to subject someone to criminal prosecution. Why? Recollections change over time or disappear completely. Witnesses die or depart (ones for either side). Physical evidence is lost. While it seems crappy that a victim might never get justice, our system also thinks it's crappy to subject a person to criminal penalties if so much time has passed they can't defend themselves. Maybe it's strange for a police officer to write this - not everyone we arrest is guilty.

In New York, that period of time was five years past the 18th birthday of the victim (among other things). This affords the victim a chance to come forward well into their twenties. Once the statute has passed, SOL. Except....

Nothing prevents the police from opening up an investigation and looking into the accusation. Multiple victims are fairly common, people in positions of trust should lose them regardless of how a criminal prosecution plays out and, in some states, the SOL bar has to be plead by the defense. Even the chance to sit in front of a suspect, look them in the eye and gain a confession has virtues beyond handcuffs and mug shots, if only the truly cleansing moment when a victim feels vindicated.

Some SOL laws have tolling provisions that extend the time period. Most of these "exceptions" are technical, fact-sensitive and ought to be considered second - first being the truth. Indeed, only after consultation with real lawyers should a cop ever let the statute of limitations prevent them from at least "cutting paper" (a relic of the days when we actually put pen to paper). That's what the mouthpieces are for - arguing over points of law.

This moment, reading the Syracuse papers, the muddle of governmental finger-pointing and dashes for cover seem to be front and center, whereas the facts - what is known, suspected or rumored - is obscured. Some kind of result may yet inculpate (or exonerate) the cops, the DA, the University and the basketball coach now on administrative leave. Justice seems somewhere in the unspecified, uncertain future.

Colorado has (for the most part) abolished SOL in child sex cases. Other states have as well. New York did, although the US Constitution makes retroactive application problematic. Most of us with experience in this area of law enforcement have witnessed the horrible aftermath of protracted sex assaults, which often render the victim emotionally incapable of publicly admitting they were violated, sometimes for decades. The rights of the accused don't always trump experience - we all vividly remember major injuries we sustained, even those endured as children. At some point there needs to be the day in court, a reckoning.

Ultimately, someone in Syracuse may announce that the case cannot be brought there. The Feds are involved, now. Maybe US statutes have been violated and can be successfully taken before the Federal District court.

Maybe, if this young man's allegations are true, he's not yet SOL.

UPDATE: The day after this was posted, Fox News reported a third victim. ESPN reveals a taped phone conversation between Coach Fine's wife and the primary accuser. Toward the end of the story, it appears a relationship between the coach's wife and the accuser is...mentioned. The wife said Bernie wasn't all that upset by the revelation.

Just...ick. Ick.

UPDATE: Fine fired. University introspecting, everyone shocked - shocked!

Baloney. This whole thing stinks.

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