Tag: evidence

Just a few convenient days after his election as Supreme Court Justice, outgoing DIstrict Attorney Frank Sedita issued an unusual statement explaining that his office was not going to prosecute Patrick Kane for allegedly raping a young woman in August. The case has been plagued from the very beginning by strategic leaks of information seemingly from people with something to promote or defend. The vast majority of these leaks seemed to assail the alleged victim, accusing her of being a liar or a gold-digger or that there was a lack of forensic evidence to corroborate the allegation. The best that the alleged victim’s friends could do was leak to the News that she’s a really good person.

To recap: the first article I published explained why club owner Mark Croce engaged in blatant slut-shaming to the Buffalo News. I followed that up with a Kane case FAQ, and a further analysis of the victim blaming that was taking place in the press from literally the moment this news hit. Kane had an off-duty cop on his payroll, and he also told the News tales about the alleged victim and Kane supporters took that all at face value. Paul Cambria argued with me about the case on Facebook, and that made a bit of news, the leak about a lack of DNA evidence happened, and then the alleged victim’s mother attempted to perpetrate a fraud on her daughter’s lawyer, the public, and the system with an evidence bag. District Attorney Sedita held a dramatic press conference where he quite clearly expressed his personal prejudices about the case, indicating that a prosecution was going to be unlikely and explaining that he had exchanged exculpatory Brady material with the popular and wealthy alleged perpetrator’s legal team during the investigatory stage – something unprecedented, according to criminal lawyers with whom I spoke.

Over the course of this past week, we learned that the alleged victim was no longer going to cooperate with this District Attorney’s office, citing the “stress” of this investigation, and the case was ended two days after election day.

Here are some points to consider:

1. Kane isn’t “innocent”: Nothing’s Changed

He’s not even “not guilty”. Despite Mr. Sedita going miles out of his way to cast aspersions on the alleged victim and protecting the alleged perpetrator, no one knows what, if anything, happened between Kane and the alleged victim that night in August. One thing is for sure, because the alleged victim won’t cooperate, we’re unlikely to find out in a court of law what happened. I heard several male commentators take to the air over the last few days, including half of “Cellino & Barnes”, explaining that even a civil lawsuit was unlikely.

There was no trial—no jury, no nothing—to determine Kane’s guilt of lack of guilt. I haven’t seen anywhere that the alleged victim had recanted.

Sedita’s statement about what he characterized as, “this so-called ‘case’” added that it was, “rife with reasonable doubt.” But that’s not the standard at this stage – the D.A. was assembling evidence to present to a grand jury, which would be tasked with determining whether there exists probable cause that a crime occurred. Reasonable doubt is a job not even for the grand jury, but the trial jury. Sedita seems to have skipped all of those steps for one of two reasons; 1. he doesn’t believe the alleged victim and doesn’t want to trouble Kane with this anymore; and/or, 2. His office is notorious for being selective about prosecuting high-profile cases only where there exists a strong likelihood of success.

As a disinterested observer of this entire case, my impression was that the D.A.’s office was more interested in protecting the alleged perpetrator than the alleged victim; more worried about the hockey star’s reputation than whether something wrong may have happened one August night. I’m not saying that’s what happened—only that it is the impression that they left. 

2. Sedita’s Statement Raises More Questions than it Answers

I can’t recall another case of any sort where the D.A. so openly vocalized his sympathy with an accused, where law enforcement bent so far over backwards for an accused. Well, at least not since Antoine Garner allegedly murdered then stuffed Amanda Wienckowski in a garbage tote. Sedita told us that the, “physical and forensic evidence … tend to contradict the complainant’s claims.” Well, why have trials if we can just ask the District Attorney to find facts and assess credibility for us? You can see the entire statement and the News‘ reporting here. It sounds like a report of a trial that never took place; that took place only within the District Attorney’s office. The details that Sedita revealed raised more questions than they answered.

“The physical evidence and the forensic evidence, when viewed in tandem, tend to contradict the complainant’s claim that she was raped on Kane’s bed,” Sedita’s statement said.

Could she have been wrong? Whatever happened—could it have taken place in someone else’s bed? Room? On a couch? This was her first time in Kane’s house.

Sedita wrote that Kane “exercised his constitutional right to remain silent.” Sedita also wrote that Kane made “no known incriminating statements to any civilian.” Sedita also said Kane didn’t engage in “any conduct consistent with a consciousness of guilt.”

He was represented and advised by a competent and experienced criminal lawyer who, according to a radio interview this week, specifically advised him to conduct himself normally.

The DNA results “lend no corroboration whatsoever to the complainant’s claim of penetration.”

Perhaps there was no completion. Perhaps there was a condom. Perhaps it was a lesser included offense.  “Kane’s DNA was found under her fingernails and on her shoulders where there were bite marks.”

All of these factual inconsistencies exist in any case—large or small—and that’s why we have prosecutions and trials and arrests and presentments to grand juries.

3. A Big Win for Rape Culture

We’re already seeing articles explaining how Patrick Kane can rebuild his prior reputation of being a stumbling drunk who punches out cab drivers over pennies in change. Not satisfied with an end to the prosecution, Cambria made sure to mock the young accuser, “[s]tress and strain? Every week, my office would get pictures sent to us of this young woman at parties and social occasions, living it up…I do not believe she was suffering stress and strain.” Did Cambria produce these pictures to the News? Did the News follow up on that? Then why print it? Cambria is being paid to represent a client, he makes a statement accusing a young woman of having a social life, and the News prints it, verbatim, without even checking to see if it’s true. James Brown was right: This is a man’s world.

As all the Kane fans take to social media and condemn Kane’s accuser for being a gold-digging whore who should be sued—or worse—I have no doubt that something happened on August 2nd at Kane’s house that deeply troubled the alleged victim to the point where she accused Kane of rape. It might not have risen to the level of rape—she’s not a lawyer—but there exists absolutely no evidence that she was just out for a big payday, or that she concocted this entire story out of whole cloth as part of a grand scheme to extort money. The young college graduate and former cheerleader probably doesn’t need the grief that’s ensued.

Kane wins, and gets to carry on with his life, at least until the next drunken escapade or assault. The criminal justice system is the real victim here—it’s exceedingly difficult to prove and prosecute rape cases, and this entire freakshow hasn’t made it any easier. It hasn’t given women any assurance that they’ll be treated with respect or fairness if they accuse a powerful and influential man of an assault. It certainly didn’t do any favors for the victims of rape and sexual assault, or the people who make their lives helping them. It hasn’t done a stitch of good in terms of battling back against the rape culture pervasive not just in the fraternity of sports, but in our society overall.

Powerful males in law, law enforcement, Buffalo’s bar scene, and media pulled out all the stops to protect Kane and make the accuser’s life a living hell. The odds were stacked against her from the moment she called the cops in August. The leaks to the media—almost all of which were antagonistic to the accuser—were well-coordinated and devastating. The reaction on social media that I’ve seen is troubling. Quite honestly, from what I can tell, the truth and justice never had a chance.

The dust is still settling from a shocking, raucous week for the Patrick Kane rape case. Let’s consider what’s left of it.

Last Sunday, the Buffalo News published information obtained through anonyms about the results of DNA testing done on the alleged victim. It was reportedly negative for Patrick Kane’s DNA, at least below the waist. This information is exculpatory for Kane, but not definitively so.

By Wednesday, the alleged victim’s attorney, Thomas Eoannou, held a blockbuster press conference to accuse someone of tampering with evidence, having left what Eoannou called the “rape kit bag” on the mother’s doorstep. But within minutes, all the relevant law enforcement agencies had denied that there was any irregularity in the chain of evidentiary custody. Something fishy was going on. Thursday morning, I wrote this:

Eoannou’s bag almost certainly at one point contained some piece of evidence that was obtained at ECMC on the morning the rape kit was administered. It’s feasible, for instance, that an item was stored in there but the police took it away in a different bag. What’s clear is that everyone with no stake in the outcome of the underlying rape case agrees that the rape kit hasn’t been tampered with.

By Thursday night, Eoannou had fired the complainant and her mother as his clients, and held an extraordinary press conference recanting practically everything he had said the day before. An embarrasing spectacle had been exponentially grown into a circus. Anyone’s best guess is that the mother concocted the hoax in an effort to cast doubt on the forensic evidence – an effort that would have been substantively pointless. After all, its exculpatory effect helps Kane’s defense, but so would any manufactured, phony doubt cast upon the reliability of that DNA data; the result is the same.

On Friday, District Attorney Frank Sedita held his own press conference. Clearly, Sedita was incensed by the complainant’s former legal advisor, Thomas Eoannou’s accusations about a brown paper bag; accusations that were quickly determined to be false. For a shocking period of just over 24 hours, Erie County’s law enforcement agencies were falsely made to look like bumbling incompetents. Sedita was there to set the record straight.

The press conference had all the hallmarks of a closing argument to a jury. There was a concise and persuasive PowerPoint presentation to go along with Sedita’s dramatic and emotional statements. I think that the press conference itself went on for about 30 minutes longer than necessary, and that perhaps Sedita took too many liberties in discussing the case during his Q and A. The DA now discloses exculpatory Brady material to the parties during the investigation stage – before criminal action is commenced? Sedita needed to disclose that the complainant had retained civil legal counsel? He needed to emphasize that it wasn’t a question of “when”  but “if” the case is presented to a grand jury? Too long, and too much information.

Nevertheless, it quickly became clear that Sedita’s office has acted with utmost professionalism, and has not contributed in any palpable way to the unfortunate circus atmosphere surrounding the underlying case. They have behaved ethically and responsibly. Also, his office now finds itself chasing an extra, unnecessary inquiry: what did the complaining victim know about her mother’s brown paper bag hoax, and when did she know it?

What did we learn from D.A. Sedita? There was never a bag for the rape kit; the rape kit is sealed in a box, and taken to an evidence locker at central police services. He explained that the Eoannou’s brown paper bag was given to the alleged victim’s mother by a nurse at ECMC to hold an article of clothing that the complainant was wearing at the time of the supposed attack. The mother never used the bag; police took the clothing and placed it in their own evidence bag, and the mom held onto the hospital’s bag and took it home.

“What do we do with this new information?” Sedita said at the news conference. “Obviously, there’s been an effort to create a hoax. Obviously, there’s been an effort to manufacture a perception that forensic evidence cannot be trusted. I’ve got to figure out who was in on that, why they would do that and what it means for all of the other evidence. I will be doing that. We will be doing that over the course of the next few days.”

While I’ve argued that there exists no evidence at this stage to conclude that the alleged victim had any inkling of what mom was up to, others have pointed out that this is naive and stretches credulity. I prefer sworn testimony to anonymous allegations or declarations to the press, and I prefer proof to speculative conclusions. I take every media report about the case with a grain of salt. If the alleged victim is discovered to be incredible or a liar, how this case has been handled would likely dissuade future victims of sexual assult from coming forward. If you’ve seen on social media some of the visceral, homicidal hatred being slung the complainant’s way, you’d be appalled. Chicago reporter Julie DiCaro, who has reported fairly on this matter, couldn’t go to work on Friday thanks to death threats. Because hockey; because bro/rape culture.

After Sedita’s press conference, Patrick Kane’s lawyer, Paul Cambria, invited the media over to chat. He reiterated his belief that the bag hoax establishes conclusively that the entire thing is a fabrication, and there should not be any prosecution. Specifically,

That the actual accuser knew what that bag contained. That was a very, very important fact. If you know what it contains, you witness someone claiming that it contains something else and you know it’s introduced into the legal process and you know what the consequences can be. You’re ok with that, you’re ok with a fraud being perpetrated. I think that’s a very significant fact.

He argued that the mother could be subpoenaed to testify, in which case the hoax becomes fodder for cross-examination on the issue of credibility. Cambria said that she could have committed the crime of obstruction of governmental administration, and stated that Kane was the real victim. Cambria correctly stated that Eoannou could have saved himself a ton of embarrassment by simply going to the authorities with his concerns about the brown paper bag, rather than the media.

Tom Bauerle spent two afternoons on WBEN parroting Cambria. After his presser, Cambria was caught on a hot mic saying, “Tom [Eoannou] is a good lawyer, I can’t believe he got sucked into this.” True, that.

I have no idea whether there will be any prosecution, at this point. It depends a great deal on how law enforcement assess the credibility of the complaining victim. If she knew or acquiesced in her mother’s hoax with the bag from ECMC, this case is finished. Cambria argues that she had to know, but look again at Sedita’s statement – the mother never used the bag, so the “actual accuser” feasibly wouldn’t know what, if anything, it “contained”. In any event, no one knows whether the alleged victim is culpable for the hoax any more than I know the opposite to be true; if you say she’s a cheat or a liar, you bear the burden of proof on that point.

If there is no case to be had, I will wait for the District Attorney to tell me that. Before that happens, I’m assuming that everyone involved is a rational, thinking person who would not behave completely unreasonably. So far, the complainant’s mother has proven herself to be neither rational nor thinking. As for the complainant herself, I want her guilt regarding the bag hoax – to the extent it exists – to be proven. Don’t let’s jump to conclusions about her, just like we shouldn’t jump to conclusions about Kane himself.

Anyone notice how many people directly involved or commenting publicly about this whole thing are male? Oh, it’s a tough case for the prosecution now, says former Attorney General Dennis Vacco. The alleged victim had to know what mom was up to, says Kane’s attorney, Paul Cambria. The mom perpetrated a fraud so embarrassing, Eoannou held a press conference to destroy her forever, and fire her daughter as his client. Hell, here I am asking people to stop leaking information and rushing to conclusions – and I get grief about it. The few females I’ve seen actively pursuing this case are the aforementioned Julie DiCaro, whose life was threatened for daring to report objectively, occasionally, we hear from representatives from crisis services, and local attorney Florina Altshiler, who also seems to be the only person in any piece in which she’s quoted to basically urge caution and rationality from people. We need a lot more female lawyers and commentators involved with this case.

This case has been polluted by victim-shaming since day one. I think we could all benefit from hearing more women’s voices discussing this case in the mainstream media. We’re already giving Kane the benefit of the doubt by acknowledging that he remains not only not guilty of anything, but not even charged. We sit here instead contemplating what legal recourse Kane might have if absolved of wrongdoing.

Now, we wait some more, so that law enforcement can investigate an ancillary issue about a brown paper bag that never should have happened. No, this is not how these things typically go. 

Thursday night, in a hastily called, unusually late-night press conference, attorney Thomas Eoannou publicly withdrew as attorney for the complaining victim in the Patrick Kane rape case. Eoannou’s move came just a day after he held a different press conference, where a brown paper bag with a hospital label on it took center stage, as Eoannou alleged that it was evidence of some sort of epic evidence tampering.

As it turns out, and as we reported on Thursday morning, the bag represented nothing at all. Eoannou was duped, overreacted, or both. To hear him tell it, his investigation into how that bag came into his possession led him to believe that the alleged victim’s mother’s story about it was false. Because he had so publicly used that bag to accuse someone unnamed of sabotaging this case and tampering with its evidence, Eoannou looked ridiculous coming before the media a second time doing his best Emily Litella impression: never mind.

Except here, Eoannou’s client’s mother’s misinformation was such that he felt he could no longer represent them, and he fired them. Eoannou made it crystal clear that he didn’t blame the alleged victim herself, and that she had nothing to do with this.

What do we know? 

To circle back to the underlying rape investigation, these things are true:

1. Eoannou’s bag had nothing to do with the rape kit and is not evidence of tampering;

2. The alleged victim did not lie or make up some story to Eoannou about the bag – her mother evidently did;

3. None of this means that Patrick Kane did – or didn’t – rape the alleged victim;

4. The actual evidence remains safely tucked away at Central Police Services, unmolested and untainted, and from a prosecutorial standpoint, nothing is different as we wake up on Friday morning; and

5. Thomas Eoannou – who was, is, and remains one of the area’s elite criminal defense attorneys – had no official role in this case. For the underlying rape case, his withdrawal substantively represents absolutely nothing.

After all, the prosecution may not need the mother’s testimony to present and try this case, and without her, this whole episode with the bag never gets in front of a jury; it’s totally irrelevant. Arguably, were mom to testify, it could be brought up to assail her credibility, but that’s it. It can’t be used to challenge the credibility of the alleged victim herself.

Cambria’s Bluster

It also bears mentioning that Paul Cambria is wrong – none of this establishes that the underlying rape allegation is a “fabrication”, and he’s blustering for his client. Cambria’s posturing is unseemly, and the leaks to the media about the results of the DNA tests likely came from someone in or close to Kane’s defense team and need to stop. Those leaks are poisoning the jury pool and thwarting justice. Unfortunately, we have Eoannou to blame, since his very public accusations regarding that evidence bag opened the door for Cambria to speak publicly, as well. All of this was horribly thought-out, and has exploded in the complainant’s team’s face.

If the complaining victim’s mother lied to Tom Eoannou; if a tangential witness lied to her own lawyer, who has no official role in the prosecution, how exactly does this reflect poorly on the complaining victim herself? It doesn’t. It’s just a sideshow. It’s a shitshow, to be sure, but full of sound and fury, signifying nothing. The prosecution – if it comes – will be brought by the District Attorney’s office. Eoannou’s only role was to help the accuser’s family navigate a complicated and nerve-wracking system for victims whose interests are not always directly protected by prosecutors.

At this point, the alleged victim’s mother may have bought herself a prosecution of her own.

Fraud and Eoannou’s Withdrawal

Whether a prosecution comes is up to the District Attorney’s office. Will this behavior by one ancillary witness cause a notoriously cautious office to beg off? In a statement to the press last night, the accuser’s family says that she has, “every intention of pursuing this case to a just conclusion.”

One troubling aspect of all of this is this: although Eoannou may have felt an ethical obligation to withdraw from this representation based on the alleged victim’s mother’s behavior, he had no duty to do it so publicly. Ethical Rule 1.16 is instructive on this matter: if Eoannou felt a duty to so quickly and publicly withdraw, he suspected the mother was committing some sort of fraud.

It bears repeating that ejaculation is not an element of the crime of rape, and the absence of Kane’s DNA alone should not – and does not – absolve him of rape in this case. Likewise, the reported presence of another person’s DNA does not absolve Kane of rape. If I were to speculate, I suspect that the alleged victim’s mom likely concocted the “I found a ripped-up bag” thing because she’s legally unsophisticated and thought she could manufacture some sort of doubt about the DNA evidence. When Eoannou found out the truth, he had to quit (a) because she tried to commit a fraud; and (b) he helped promote it; and (c) he came out looking stupid when it turned out to be false.

However, a lawyer can only withdraw if he can do so “without material adverse effect on the interests of the client”. Query whether the way in which he announced his withdrawal met that requirement. I don’t think it did, and I think the myriad Tweets I’m seeing demanding that the alleged victim – who even Eoannou says is innocent of this aborted fraud – be prosecuted for extortion, underscores my conclusion.

Transfer Venue

One thing is certain, in my mind: the venue for this case must be changed. Send it to Jefferson or Broome County and get it away from the Buffalo media market in order to find New Yorkers who don’t care about Patrick Kane to analyze and find the facts in this case. I don’t think that Kane – or the prosection – can get a fair trial in Erie County, and the whole thing should be moved pursuant to 230.2 of the Criminal Procedure Law. Under NY law, both sides can request transfer of venue.

Everyone Dummy Up

It is my hope that this matter goes before a grand jury sooner rather than later, and that somebody goes before a judge and asks for a gag order on all counsel and witnesses. All of this underscores what I’ve been saying since the day Mark Croce decided to tell the Buffalo News about what a classy joint he runs and how these girls were hanging all over Kaner – everyone should stop talking to the media.