As Case Widens, So Do Concerns for Syracuse

By Lynn Zisner (NY Times)
November 28, 2011

Nearly everything about the investigation into child sexual abuse allegations against Bernie Fine, a former assistant men's basketball coach at Syracuse, took a more serious turn over the weekend. Fine was fired by the university after another accuser came forward and Coach Jim Boeheim quickly retracted his previous unconditional support of Fine.

But the legal issues involved also became more complex, with Syracuse possibly reacting because of a sense of potential legal exposure, and the expansion of the investigation into a federal as well as a local one. The United States attorney's office for the Northern District of New York and the Secret Service stepped into active roles, including searching Fine's house and removing filing cabinets and a computer. Fine has not been charged with any crime and has said he is not guilty of the accusations, but after initially placing Fine on administrative leave Nov. 17, the university fired him Sunday.

"Syracuse moved very quickly once someone else came out," said Michael Dowd, a New York lawyer who has represented many victims of child and sexual abuse. "Boeheim was doing everything he could to back Fine when it was just two, but now it's three."

The importance of the third accuser — 23-year-old Zach Tomaselli of Lewiston, Me. — Dowd said, is that he alleges abuse in 2002, which may fall within state and federal statutes of limitations, whereas the abuse alleged by the first two accusers, Bobby Davis and Mike Lang, would have happened too long ago to prosecute.

Syracuse's response to the initial accusations brought by Davis to the university in 2005 will also be under a spotlight, several legal experts said. Officials said no action was taken at the time because they could not corroborate Davis's claims.

"But why do you have to have corroboration for rape?" said Cynthia Bowman, a professor at the Cornell University School of Law. "One of the unusual things about the Penn State case was you actually had someone walking through the locker room who saw this. Usually, how would you get corroboration? I would think they would need to determine it just hadn't happened for some reason — like, they were in different places when the alleged crime took place — and not just a lack of corroboration."

Referring to Syracuse, she said, "They could be in a bad place because they did have notice."

Unlike Penn State, Syracuse is a private university and is not shielded by the sovereign immunity that could possibly keep Penn State from being liable as a state entity.

"I think the university could have enormous liability, including Boeheim, who was in a supervisory capacity," Dowd said. "It comes down to who knew what, or who should have known. And you have to ask, because Boeheim's defense of Fine was so complete after the initial allegations, would he have been at all open to look into anything suspicious?"

The involvement of the Secret Service indicates there is an element of the case dealing with computers. According to the Columbia University law professor Daniel C. Richman, a recent emphasis on prosecuting child pornography and exploitation has moved the Secret Service to offer help to local investigations that might involve those issues. It also has expertise in computer forensics, which could explain the removal of a computer from Fine's house after the search.

If such searches revealed crimes that happened more recently than the current allegations, the statute-of-limitations question could no longer be an issue. John Duncan, a spokesman for the United States attorney's office, said his office would not discuss which statutes were involved in the investigation, so he could not talk about what the statute of limitations on any of those would be.

Because the investigation is in such an early stage, the local and federal investigators are being vague about details.

In cases like this, there is the possibility of other accusers coming forward, as has happened in the case at Penn State against Jerry Sandusky, a former assistant football coach. Tomaselli came forward in the Syracuse case after seeing Davis and Lang make their accusations on ESPN.

"What we know about predators is, you might as well put them on an island and build a fence around it, because they are not going to stop," Dowd said. "The fear of being caught does not stop them.

"This could end up being a huge case."