Sports In the Courts Blog : New York Attorneys & Lawyers Specializing in Sports Law & Legal Analysis

Floyd VanHooser, a prison inmate and one of four men who accused former Syracuse Associate Basketball Coach Bernie Fine of having sexual relationships with them when they were children, has admitted that he lied. VanHooser said he wanted to get back at Fine because Fine did not hire a lawyer to help VanHooser fight a criminal conviction. In December, VanHooser told The Associated Press that Fine began sexually abusing him when he was 14 years old, and the abuse continued as an adult, when the contact included sex acts for money.

In a prison interview on Friday, VanHooser said that he and Fine had a sexual relationship as adults for many years, and it continued until last summer. VanHooser said Fine first approached him for sex when he was in his 30s, and that he was usually high on heroin when they had sex. Additionally, on Thursday, The Post-Standard, a Syracuse newspaper, received copies of two letters dated Nov. 29 that VanHooser wrote and mailed to Fine. In the letter VanHooser stated, "In a statement I gave, I told a lot of lies about Bernie Fine. None of what I said was true. Bernie has been nothing but good to me over the years. He was the only thing I had close to a father. He never did anything wrong. He is a good man."

Onondaga County District Attorney William Fitzpatrick, without seeing the letters, said he was not surprised that VanHooser admitted he lied about Fine. In fact, last month Fitzpatrick, referred to an unnamed fourth accuser in the Fine case as someone serving a life sentence in prison and a persistent felon. He said that person's claims were not credible.

VanHooser is serving 16 years to life at Clinton state prison near the Canadian border for several burglaries of Syracuse-area homes. He was sentenced in October as a persistent felony burglar.

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Some scandals just seem to have no end.

Apparently, as disclosed by Penn State President Rodney Erickson, the Penn State Board of Trustees received a “briefing” on the Sandusky Grand Jury investigation three months before Sandusky was arrested. The briefing was allegedly conducted by former PSU President Graham Spanier before he resigned after much criticism of his handling of this incident.

Now, you can take a wild guess on how many non-law enforcement individuals should be “briefed” on secret grand jury proceedings? If you answered “zero”, you are right.

The result, in part, of this bizarre briefing of the PSU Trustees is that a “re-interviewing” process has now begun of Penn State “staffers” by the State Attorney General’s office. Once again, prosecutors will be asking who knew what about Sandusky’s alleged crimes and when did they really find out. In addition, prosecutors will be investigating to determine when Penn State officials “got their stories together” after an improper briefing about what might have been said in the grand jury.

Once again, not good. 

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As admitted by legendary basketball coach, Jim Boeheim, he should not have called Bobby Davis and Michael Lang “liars” and “out for the money and nothing else.” Boeheim has now recanted these statements and apologized.

Both Davis and Lang claim that they were sexually abused, as children years ago, by now fired Syracuse Assistant Coach Bernie Fine. These allegations cannot be locally prosecuted as the statute of limitations has run but they are the subject of an ongoing federal investigation.

In response to Boeheim’s comments, Davis and Lang, through celebrity attorney Gloria Allred, commenced a lawsuit against Syracuse University and Jim Boeheim for damages on a claim of defamation. Now, normally calling someone a liar can be construed as an attack on a person’s reputation. However, in the case, the plaintiffs’ are claiming that the words used by Boeheim are much worse because of the speaker is in the Syracuse community.

Davis and Lang argue that they were damaged by being verbally attacked by Boeheim who is more than prominent and powerful figure in Syracuse. They noted that Boeheim has “star status” in Syracuse and because he is “elite.”

In sum, Davis and Lang are alleging that not only the words uttered by Boeheim were damaging to their reputations but this offense has been compounded by the star-like status of a very powerful speaker. 

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Today, before the national media, Jerry Sandusky's defense attorney told the world that his client was innocent and he was going to "fight like hell." So why didn't they?

Instead of going through with a preliminary hearing on whether the prosecution had probable cause to charge Sandusky with the crimes in the indictment, the defense waived the hearing and decided to proceed directly to trial. In the news conference that Attorney Joseph Amadola appeared to be enjoying, he stated that the hearing was waived because the defense could not fully attack a witnesses credibility in this type of limited hearing. Amadola also said that the defense waived the hearing for public relations reasons of not having these horrible allegations repeated, on a national stage, against Sandusky.

Well, "public relations" concerns are not a very sound defense strategy. In cases that hinge on the credibility of witnesses (especially from years back), a defense attorney wants as much testimony as possible. The defense attorney wants the prosecution's witnesses to tell their stories, on the record, over and over again. Remember, no one tells a story the exact same way twice. If Sandusky has a chance for an acquittal, his defense team needs to exploit inconsistencies in critical witnesses' accounts. A good defense attorney will use these inconsistencies, however minor or benign, to create reasonable doubt in the minds of a juror.

Yet, today, the defense bypassed this golden opportunity to get more inconsistent statements on the record. Forget about "winning" the preliminary hearing, the object of the game is to build an arsenal for the defense at trial. Since the defense gave this up, is the real truth about the strategy something else?

We heard a relieved prosecutor state that he was pleased that the complainants were not "re-victimized" today. In my experience as a prosecutor, this suggests that the defense wants (or may want) something in return. The eventual trade off here may be a more favorable plea deal for Sandusky.
 

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Today, the Pennsylvania Attorney General, Linda Kelly, announced that Jerry Sandusky would be facing additional charges in the continuing child sex abuse scandal. In the latest indictment, Sandusky has been charged with four counts of involuntary deviate sexual intercourse, a first degree felony, and two counts of unlawful contact with a minor. The new allegations pertain to two new alleged victims who were minors at the time of the alleged encounters. The two minors, known by their alias as Victims 9 and 10, both encountered Sandusky through his work at the Second Mile foundation, which he began. According to Ms. Kelly's statement, Victim 9 was between 11 and 12 years old when he met Sandusky around 2004. It is alleged that Sandusky provided Victim 9 with gifts and money and took him to Penn State football games. Also, according to the AG's statement, Sandusky allegedly met Victim 10 in 1997 after a counselor recommended that Victim 10 attend the charity "because of difficulties in his home life." In total, Sandusky is alleged to have victimized 10 boys over the course of 15 years. According to Kelly. the additional charges filed today "were recommended by a statewide investigating grand jury, based on evidence and testimony that was received following the initial arrest of Sandusky on November 5th." Sandusky, who continues to maintain his innocence and his taken to the public airwaves to share some of his story, most notably an interview on "Rock Center with Brian Williams" will have a preliminary hearing with respect to these charges on December 13, 2011.

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A burger joint with a creative marketing strategy now finds itself a defendant in a lawsuit filed by the Oakland Raiders in a California federal court. Nation's FoodService Inc., which does business as "Nation's Giant Hamburgers," purchased billboard space right outside of the Oracle Arena (where the Raiders play) to advertise its hamburgers.  The advertisement has a cheeseburger popping through a black and silver background (Raiders colors), and reads, 

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Gloria Allred, a Los Angeles attorney who fashions herself as the leading activist of women's rights, has sued Lawrence Taylor on behalf of her client, Cristina Fierro. Fierro was the underage girl who was brought to Lawrence Taylor's hotel room by Rasheed Davis, where Fierro and Taylor had sex.  Taylor was prosecuted and pled guilty to patronizing a prostitute and sexual misconduct, receiving a 6 month probation sentence. Fierro alleges she was beaten by Davis and forced to have sex with Taylor. When she arrived at Taylor's room, Fierro claims she had a black eye and was visibly upset, and told Taylor she did not want to have sex. Nevertheless, Taylor proceeded to have sex with her and paid $300.

The Trafficking Victims Protection Act, upon which Fierro's lawsuit is based, has been used primarily to prosecute those engaged in trafficking for financial benefit, through use of force or coercion. Here, there is no indication that Taylor forced or coerced Fierro, other than Fierro's allegations. Since this is a civil action, Fierro's past history is now fair game. If she was a prostitute, we will hear all about it. Taylor's attorney has already come out swinging, stating, "[n]ow, in defending himself, Mr. Taylor and other independent witnesses will have to reveal the rather disparaging truth about Ms. Fierro and the facts about the evening in question."

A copy of the Complaint can be seen here, courtesy of the New York Post. Davis was not named as a defendant despite the fact that his alleged conduct, if true, clearly falls within the scope of the Trafficking Victims Protection Act. 

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Let's face it, the last few weeks have not been very good for Penn State or its legendary football program. In fact, they have been so bad that Joe Paterno was fired and has now gone quiet. The allegations of serial child abuse by former assistant coach Jerry Sandusky and a possible institutional cover-up have turned into a nightmare for the school.

However, Penn State promised us a thorough "investigation" and a search for the truth into these charges, no matter how ugly the facts may be. Today, Penn State took a substantial step in keeping its promise. Penn State needed a major (and independant) law enforcement official to give any internal investigation some credibility. In naming former FBI Director Louis Freeh, Penn State has chosen wisely.

Since Freeh used to be the head of the one of the world's most elite criminal investigation agencies, he has the skills to do a true investigation into this scandal. But, even more importantly, he should have the connections necessary to coordinate his efforts with law enforcement (state and federal) to find out just how deep this scandal may go.

As this story broke, Penn State seemed stunned and slow to react. With choice of Freeh to head its investigation, Penn State has cured that problem, as least for now.

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We all know how this works. There is a horrific scandal involving PSU and defensiveless children, the school lied, covered it up and then fired its long term coach, Joe Paterno. So the ink on the avalanche of lawsuits against Penn State should be pretty close to dry right now, right? Penn State is going to pay countless millions, right?

Well, maybe not. None of the pundits are talking about it (because they haven't played it forward) but the State of Pennsylvania has a monetary cap of $250,000 of claims against the state and its agencies. As part of the its torts claim act ("TCA"), If a public entity is deemed to be a "agency of the commonwealth" then this limit of liability will apply.

My review of the TCA shows unsettled law of whether of Penn State will be able to gain this protection. But you can rest assured that Penn State's lawyers are going to seek all of the protections that may be avaiable under the TCA.

Also keep in mind that there could be significant statute of limitations problems for some of the victims from more than a decade ago. Either way, the point is to keep in mind that if the TCA applies, then the potential verdicts agaisnt Penn State will be greatly reduced.

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