The Buffalo DA And Other Notes

If you haven’t seen it, the Trib today ran a profile of the Erie County DA who will be handling this case, if it becomes a case, Frank Sedita III. I’m almost certainly in above my head when discussing the nuances here, and this post probably best serves as a launch point for the various lawyers who are friends of the site to explain it out better in the comments.

Obviously, to everyone certain things jump out. His “choosiness,” for lack of a better term, is one. But I’m guessing like most other big city District Attorney offices, Erie County’s would have limited time and resources and prosecuting every case that comes into it is an impossibility, especially if Buffalo’s court system is anywhere near as backed up as Chicago’s. I don’t know what the proper balance is here, and I hope someone or a few can hash it out in response to this.

Obviously, in a vacuum, it would be great if every alleged crime saw its day in court, but as said time and resources almost certainly prevent that.

That’s counterbalanced by his office’s passion in pursuing sex crime cases, so I don’t know if they cancel out or not but they do seem to be in a sort of push-and-pull dynamic, as tricky as these kinds of cases can be to prove and convict.

Some other notes from it is the consensus that he would go to the grand jury on this if he feels the need, as that somewhat removes the decision from his hands. We’ve seen how grand juries can go off the rails a bit if a prosecutor wants it to, and we also know that prosecutors can indict “a ham sandwich” in a grand jury if he/she wants to. Sedita doesn’t sound like the type to use a grand jury to get himself out of a court case, but of course I don’t have any idea at all.

Still, the one thing I think we can discuss is that this could take a while longer yet and a grand jury might even extend it. With training camp now a month away, it feels like it’s a possibility that the two might bump into each other. I have no idea what the Hawks would do in that situation. They nor the league can suspend him if he remains only under investigation. I suppose the Hawks could give him a leave of absence, or “give” him one where they basically tell him to stay home. It certainly isn’t the media circus they have ever shown the urge to engage in if this isn’t resolved by the time everyone decamps to South Bend. But even if Kane’s not there, it’s not like they’ll completely duck a media circus either. When Kane had his taxi driver run-in, that was all resolved by the time camp began, and other than that I can’t really think of anything close the Hawks’ brass have had to deal with. I suppose this is why you hire a John McDonough.

There’s also the nugget that Sedita is pointing toward an election soon to the state supreme court. I would like to think whether he tries an athlete merely from the area would have no effect on the election of a public official, but I’d like to think a lot of things like that.

Anyway, have at it, barristers!

  • 326 Bureau Chief

    For those of you paywalled-out of Tribune article: “state supreme court” is the county-level court system. The New York Court of Appeals is the state’s highest court.

    So this guy’s run to be a judge would be relatively managable, with or without this inquiry. Not a lot of upside to (um) DOING HIS JOB CORRECTLY, but tons of downside if he screws it up.

    • jordyhawk

      +1 for the avatar (kind of looks a bit like Anisimov to boot).

      • 326 Bureau Chief

        Was here back in pre-Disqus days for GDT pretty regular. Disqus sucking led me away to Twitter. But Sam asked for the lawyers’ caucus. So.

    • yinkadoubledare

      One would also be aware of the weird NY court nomenclature (Supreme -> Supreme, Appellate Division -> Court of Appeals) from watching shitloads of Law & Order.

      • 326 Bureau Chief

        Only a handful of cases [once a season at best] were (a) ripped from the headlines AND (b) kicked into appellate practice, though. But anyway.

  • Sopel the catfish

    Not entirely related to this post, but as the daily links comment section isn’t working I figured I could put these here. First, is Hossa eating Pirogi out of Stanley for the 3rd time in 6 years, followed up by a story about Krugs and Oduya being besties.

  • wreckinball

    You can’t suspend him if he’s not charged Even if he is its a stretch since he’s innocent until proven guilty

    • guest

      “Caesar’s wife must be above suspicion.” League can suspend if they think him playing harms the league’s image. Arguably, it would.

      The MO of sports leagues has become to suspend until the courts are done one way or the other. If he is convicted and you didn’t suspend, you’ve just let a convicted rapist continue playing in your league for months after he committed the crime–doesn’t look great.

      • Black JEM

        That tends to be in leagues with more money. Think the Hawks are going to chance being on the hook for $10,5M without a minute of ice time? Not a chance.

        • Bob in EP

          According to the CBA, suspended players don’t get paid.

  • Bob in EP

    I decided to research the suspension issue yesterday after reading the SI article. What does the CBA say?

    I’m not a lawyer, but my reading of the CBA infers that it is up to the commissioner to determine whether a player is guilty “…of conduct (whether during or outside the playing season) that is detrimental to or against the welfare of the League or the game of hockey…” Sec.18-A.2

    Furthermore, in the event of a criminal investigation; “The League may suspend the Player pending the League’s formal review and disposition of the matter where the failure to suspend the Player during this period would create a substantial risk of material harm to the legitimate interests and/or reputation of the League.” Sec.18-A.5

    Here’s the link to the CBA in PDF format. The section on Off-Ice Conduct begins a page 124 (PDF page 144)

  • Skags

    “…as tricky as these kinds of cases can be to convict”

    I’m starting to understand why you’re sympathetic to the victim here. Rape is a horrible crime and Patrick Kane has a lot of powerful, influential people in his corner and if the son of a bitch actually raped this poor girl as she says, then God help her cause she’ll need it.

    But the possibility still exists that he didn’t and I don’t see why you can’t admit that. It’s like you guys are purposefully going extreme against him with this unquenchable yearning for him to burn. Waiting for facts has become a passive aggressive form of victim blaming. Nothing could be further than the truth.

    Among the many reasons why these cases can be tricky to prove is because if both people are drunk or under the influence neither one of them can legally consent to sex. That’s not victim blaming or kooky conspiracy theory. That’s a fact. Waiting to see what the toxicology report or rape kit reveals isnt the worst thing in the world. It’s prudent. A completely foreign concept to you.

    • SnakePlissken

      I didn’t get any of the “he’s probably guilty even if not charged/convicted” undertone here. Seemed like a much more level-headed post to me. I think you’re nitpicking on this one.

      • Black JEM

        I think he is referencing the history of posts here. In which case his post is accurate.

        The fact is we don’t know. By now all the toxicology and other forensics reports are back. I’d love to hear what they say. The cynic in me is beginning to question all of this. But just as I was loathe to see all the knuckleheads rush to condemn Kane, I am loathe to rush to now condemn her. I’d like to reserve judgement until we have something to evaluate.

        And the problem is we don’t know who to trust. As in the Duke case, the DA actually lied – eventually getting disbarred and jailed – in his prosecution of the case, officials are sometimes trying to make a name for themselves. I tend to doubt that here because Kane has enough of his own resources to fight.

        • SnakePlissken

          I agree with Skags that TCI has been one-sided in their coverage of this incident. That said, I’m hopeful it will become more fact-based and balanced going forward, and I thought this post was a major improvement over the “What Matters…” ramble.

          I’m not on Twitter and I don’t waste my time with Deadspin and whatever other sites Sam referenced, so when these guys go over the top attempting to balance out the coverage they wind up making statements that just leave me scratching my head. Recent examples are Sam somehow making it sound like a bad thing that Kane has an off-duty cop as driver/security and Julie DiCaro saying she’d take a payoff rather than pursue criminal charges against a rapist. These things sound just as silly to me as any “meatball” statements questioning the accuser’s ethics or motive.

          I’m with you here. I’m not naive enought to think we’ll ever get the full story but I’ll still wait to make my own judgements until the official details are released.

          I’d like to keep reading this blog because I really enjoy the hockey coverage. Just hoping the social commentary doesn’t drive me away before the season even starts…

          • 60MinutesBaby60

            At hearing the story’s release I was hopeful a
            cut & dried explanation – conclusion – would end it. And forgive my sports fan’s perspective but that the facts would clear Kane.

            I wanted Kane to speak – to come out and defend himself – his innocence. That didn’t happen and now with both sides “lawyered up” the legal system – and spin – will determine things I guess.

            I wanted a black & white world but of course its shadowy part darkens in (too) much of the picture. My naivete was willful but hardly realistic. It’s going to be tough to cheer on this team the same way now.

            Here’s hoping peace if not necessarily justice comes at the end of this real life interruption of a sports dream come true.

          • SnakePlissken

            I don’t think anyone should apologize for hoping that she’s lying. Aside from the obvious benefit for us of being able to watch Kane play for the Hawks with a reasonably clear conscience, it would also mean she’s just a headcase instead of a rape victim. Seems better for her too.

    • denislemieux

      Let’s get back to the consent issue. Do both have to be legally impaired for that issue to be raised? What happens if she was impaired, consented and then had a change of heart when sober? And does a toxicology report provide enough information to determine when a person dropped below the legal impaired threshold? Even though,based on what we know, that seems unlikely here because of when she reported the attack.

  • TerryChicago

    You hit most of it right on the head. Only thing I would disagree with is the “choosiness” and the notion that in a vacuum, every alleged crime should see its day in court. The choosiness of our system is more than just available resources, and it really should be. Prosecutors need to appreciate the power that they possess, and realize that it simply is not appropriate to bring forth a case on which you do not believe you have met the burden of proof. Deciding to charge someone with a felony should not be taken lightly, so DAs are generally under an obligation to believe that they have enough evidence to realistically prove beyond a reasonable doubt. Once it meets this threshold, the choice of actually pursuing a case runs into a litany of other concerns, including resources.

    You raise a great point on the potential conflict of interest for the DA with judicial aspirations. One of the flaws of the current state-based system is that judges must be elected to their offices, meaning that they are subject to political bias to have cases result in a manor that places them in a favorable light with the electing population. For example, look to the current budget cases brought forth last month in which a Cook county judge sided with the Madigan-side, while the downstate judge sided with the Rauner side. In many ways, the federal system of lifetime appointments offer a less biased judge (as once they are appointed, they are free to judge based solely on the merits without chance of being voted out due to a less than popular outcome).

    • krome

      Essentially right (except I thought the downstate judge sided with the D side in the budget battle while the Chicago judge sided with the R side).
      One additional “choosiness” factor is the prosecutor acting as something of check on the police. Maybe every crime ought to get addressed, but the person the police brought forth to be charged with the crime might not be the one who ought to be charged for it. As we saw here in the Burge scandal, some police want to clear cases regardless of whether the person charged is the one who did it.
      A good prosecutor office will proceed on the sure winners, not proceed on the sure losers, and come to some reasonable set point as to how much less of a sure winner (where they think the person really did it) ought to be prosecuted to balance attaining justice against wisely using limited resources to prosecute.

    • 60MinutesBaby60

      Re The DA – State or “The Feds” – versus “You” …
      Paid almost zero point zero attention to it at the time, but am now reading Blagojevich’s brother’s account of that story. The guy was the smaller catch in a quintessential “bigger fish to fry” criminal case..

      According to him only 4 of 100 times the US Govt goes after someone does that person NOT do prison time. Now that can of course be just REALLY strong evidence but sometimes tho also government overreach & then heavy-handedness if/when it decides to drop its (sledge)hammer on you.

      When Rob – not Rod – finally got to present his side, older bro Blago’s testimony was so compelling the Feds dropped their case but not before defending himself cost upwards of $750k – which he points out is a BIG reason many plead out before triial, they realize they’ll run out of $$$ before the government will (which is never.)

      Point being government – state or fed – prosecutions once triggered become more about WINNING than finding true justice. Two cases in example – Duke Lacrosse and also the tragic Jeanine Nacarico story and the railroading of three innocent “losers.”

      Interesting read. FWIW I think the impeached governor got his due consequence. Sobering story tho, reading about being caught up in “the justice system.”

  • Say what again

    Still waiting for some facts.

  • B.I.G. Forever

    I have an honest to goodness question that I cannot google any real answer too…

    How long will it take to get the results of the forensic evidence?

    • Sparky_The_Bard-barian

      The simple answer is that it will take as long as it takes. I’ve heard anywhere from 3-6 weeks. After that, how long will it take the DA to analyse the results before deciding what , if any, charges to press. This is most likely still a long way from over.

      Even if no criminal charges are filed, a civil suit is almost a certainty.

      • B.I.G. Forever

        I saw 6-8 weeks on a website.

        Horrible tragedy aside for a moment, but I think its safe to say Kane doesn’t play this year? It would seem that if the evidence comes back in that timeframe (late Sept.) he will either be suspended by the team or league? I’m lost with the hockey aspect of all this. Which again I know is small potatoes compared to this crime.