Kane might be in legal trouble in Buffalo Pt II (verifiable sources only, no hearsay)

[BroadwayJay*]

Can you think of any procedural reason why a DA might want to go to a grand jury before any arrest, broadway? With my limited legal knowledge, I can only really think of three circumstances:

1) Part of a larger criminal investigation, i.e. sorting out multiple potential indictees,
2) Crossing all the t's and dotting all the i's before formally arraigning a suspect, either as a fact-checking process or to avoid at least one stage of an obvious media circus, or
3) Wanting to pass the buck on not proceeding with a prosecution by saying that the grand jury determined there wasn't sufficient evidence while not arresting Kane and avoiding that whole media storm.

And to be clear, I am not an attorney. My main perspective on this has always been from the political sphere. My views tend to be more on how the prosecution would want to proceed with a case or not proceed in the best PR light.

I'm on my phone in bed here so forgive my brevity.

1) no. Has no impact on the other possible defendants.

2) maybe, but that's not really a question for a lawyer. Typically they don't leave people they think are felon rapists out on the street. If politically a DA thinks it is worth the risk, I suppose it can happen.

3) certainty makes sense right? It is highly uncommon to put a case on the grand jury prior to an arrest

 

[BroadwayJay*]

I'm curious if there's a reason they've subpoena'd the accuser's friend, per Levin? As I read the statute, there's no reason to use subpoena power but I'm unsure what the actual rule/practice is in New York state?

I've seen some speculation about the woman being unwilling to testify because she was subpoena'd. I don't think that's the case, but I thought others might know.

Sometimes people are subpoenaed out of the blue. Other times the cops reach out and the witness refuses to speak to them so the DA or grand jury uses its subpoena power.

Hard to speculate on this one and one of your fellow posters seems to be very offended by my speculations. Nevertheless, the fact that she told someone about the subpoena means she isn't entirely cooperative with the DA. There are countless reasons why that would be and I can't begin to speculate on that with any accuracy

 

[Illinihockey]

I think it's #3 as well. The DA covers their ass from political fall out either way by saying the grand jury did or didn't indict a beloved local hero

 

[BroadwayJay*]

It's past midnight here so I'm going to bed. I'll check in tomorrow to try and answer more questions.

If you're sitting at your desk thinking about arguing with me instead of asking questions, please push aside your keyboard go outside and carefully consider why you are doing that. Hopefully it will cause you to rethink that plan.

 

[No Fun Shogun]

Thanks again, broadway, especially for the feedback on my trio of scenarios.

 

[Fortyfives]

Please keep posting its highly informative.

 

[CoffeeKristin]

Sometimes people are subpoenaed out of the blue. Other times the cops reach out and the witness refuses to speak to them so the DA or grand jury uses its subpoena power.

Hard to speculate on this one and one of your fellow posters seems to be very offended by my speculations. Nevertheless, the fact that she told someone about the subpoena means she isn't entirely cooperative with the DA. There are countless reasons why that would be and I can't begin to speculate on that with any accuracy

Thanks, that's really helpful. A friend who worked in the federal system thought that NY might subpoena all their grand jury witnesses. Sound like that might not be the case.

 

[Kitty Hawk]

Thanks, that's really helpful. A friend who worked in the federal system thought that NY might subpoena all their grand jury witnesses. Sound like that might not be the case.

I just looked up the statute and it appears subpoenas are optional.

 

[CoffeeKristin]

I just looked up the statute and it appears subpoenas are optional.

Thanks for checking. That's how I read it, too, and I'm still unsure how the Buffalo DA handles things, but I'm going to assume she didn't have to be subpoena'd. If she was - this is a leak, and maybe Levin got the wording wrong.

Having said that, when you only hear of one witness being subpoena'd, it does make you wonder - are there no other witnesses, or have they all agreed to appear and she refused? Is this just the beginning of the hearing, or is wrapping up?

Like everything else in this case, the more I hear, the more questions it raises.

 

[Kitty Hawk]

Thanks for checking. That's how I read it, too, and I'm still unsure how the Buffalo DA handles things, but I'm going to assume she didn't have to be subpoena'd. If she was - this is a leak, and maybe Levin got the wording wrong.

Having said that, when you only hear of one witness being subpoena'd, it does make you wonder - are there no other witnesses, or have they all agreed to appear and she refused? Is this just the beginning of the hearing, or is wrapping up?

Like everything else in this case, the more I hear, the more questions it raises.

Pure speculation, but there must not sufficient "probable cause" at this point to arrest and charge him. Kane may have admitted to having "intimate relations" with the accuser, but the witness has been subpoena'd to testify that it was not consensual.

 

[ucanthanzalthetruth]

Well, it isn't always that black and white.

I don't mean to be critical and I hope you won't take this the wrong way, but I think you're viewing this from a perspective of fear. The fact that a grand jury is sitting, if it actually even is, is not good for Kane. However it doesn't foreclose the possibility of no true bill.
Defendants testify and blow out cases all the time.

Every felony has to have a grand jury indictment (unless you waive the right to prosecution by grand jury) so naturally they are almost entirely rubber stamps. But the odds change dramatically when you testify and have good reason to testify.

I wouldn't start burning your 88 sweater. He hasn't even been arrested yet.

How long does the grand jury process take (timeline for if he's indicted or they decide not to proceed)? I'm guessing if it goes to grand jury he isn't starting this season with the team, so if it's like you think, they're just passing the buck, how long will this take to reach a conclusion? You mentioned Eric Garner, that grand jury took from August to December to reach a decision, and the ferguson shooting took from September to November for a conclusion. So does 2-4 months sound about right for a sensational case like this?


Also, some earlier posts made it seem like it may not even reach the grand jury stage. Since a witness being subpoenaed to appear before grand jury means Kane's case is going before a grand jury, does that mean there was at least a little compelling evidence showing he might be guilty, or could the DA have absolutely nothing on him but is taking it to a grand jury instead of straight dropping the investigation to save face?

 

[Periwinkle]

The question was asking him as a captain how he handles distractions/incidents with teammates and the media. He answered the question perfectly. He was not in any way comparing it to the 'cheating spouses' garbage. You either need to read the question and answer again or are painting it with your bias.

It takes special mental gymnastics to think the question and answer were completely in abstract, with no relation to any particular incident. Especially since, you know, the question was prefaced with a reference to Kane.

Moving on, thank you to everyone explaining the grand jury procedure, interesting stuff.

 

[chicagoskycam]

So with a grand jury involved, does that take any deal option away with Kane and the accuser?

 

[BroadwayJay*]

How long does the grand jury process take (timeline for if he's indicted or they decide not to proceed)? I'm guessing if it goes to grand jury he isn't starting this season with the team, so if it's like you think, they're just passing the buck, how long will this take to reach a conclusion? You mentioned Eric Garner, that grand jury took from August to December to reach a decision, and the ferguson shooting took from September to November for a conclusion. So does 2-4 months sound about right for a sensational case like this?

It can take half a day or it can take a month or more. Depends on the number of witnesses mostly. Sometimes the grand jury sits at only certain times because the service is so long. Unsatisting answer, I know.

Also, some earlier posts made it seem like it may not even reach the grand jury stage. Since a witness being subpoenaed to appear before grand jury means Kane's case is going before a grand jury, does that mean there was at least a little compelling evidence showing he might be guilty, or could the DA have absolutely nothing on him but is taking it to a grand jury instead of straight dropping the investigation to save face?

I don't think there is any secret evidence coming or anything like that. As with most rapes it will be a "he said, she said" situation.

If she had tearing and bruising he would be arrested already, don't you think? If the kit returns his DNA inside her that is indicative only of them having sex. That doesn't mean a rape happened. What is this "smoking gun" that could possibly exist? And if it does exist and the DA has it why is Kane still out on the street?

The only evidence of any interest was always going to be her testimony. Whether that is compelling or not is another story. Sometimes they can seem compelling until the truth is revealed on cross examination. Can't say until she testifies at trial. There is no cross examination in the grand jury, although the grand jurors are allowed to ask questions.

 

[BroadwayJay*]

So with a grand jury involved, does that take any deal option away with Kane and the accuser?

The decision to "press charges" always rests with the People anyway. Any deal that might have been worked out wouldn't have guaranteed that the case would not proceed.

As a practical matter a deal can theoretically be worked out where the complainant just refuses to cooperate with the DA so that becomes dicey as well for the obvious "witness tampering" type reasons.

 

[Sarava]

The decision to "press charges" always rests with the People anyway. Any deal that might have been worked out wouldn't have guaranteed that the case would not proceed.

As a practical matter a deal can theoretically be worked out where the complainant just refuses to cooperate with the DA so that becomes dicey as well for the obvious "witness tampering" type reasons.

Thanks again for all your input and help, Jay!

So, assuming the grand jury report is true. That still doesn't tell us what exactly they are angling to potentially charge him with, correct? Whether it be a forcible rape or a lesser sexual assault charge? Does it have to be a potential felony case to be in the grand jury's hands?

 

[BroadwayJay*]

Thanks again for all your input and help, Jay!

So, assuming the grand jury report is true. That still doesn't tell us what exactly they are angling to potentially charge him with, correct? Whether it be a forcible rape or a lesser sexual assault charge? Does it have to be a potential felony case to be in the grand jury's hands?

As a practical matter the grand jury means it is a felony. Might be a lesser rape, they're pretty much all felonies.

Technically they can indict a misdemeanor but that isn't very common.

 

[yahhockey]

GRAND JURY PROCEEDING

The Grand Jury is made up of 23 jurors. It is a secret proceeding, meaning it is not open to the public. There is no judge and no defendant or defense attorney present. When testifying before the Grand Jury, only the A.D.A , the jurors and a court stenographer will be in the room. The purpose of the Grand Jury is to listen to information concerning felony crimes and to decide, by a vote that:

---The evidence presented is sufficient and the charges against the person arrested are correct and the case should be held for trial. The vote results in a "true bill" and an indictment is issued against the defendant.
---The evidence presented is not sufficient for felony charges, and the case will return to the City or Town court for prosecution as a misdemeanor.
---The evidence presented is not sufficient for any further court action and dismisses the charges. This vote is a "no bill."

You probably have to wait for a few days or a few weeks to learn of the decision. The Grand Jury is "seated" for a term of about a month, and reports out all the votes on all the cases heard. The A.D.A. will tell you when you may expect to hear the results.

After an indictment is filed against the defendant, he is arraigned again before a judge, this time in a Supreme or County Court.


While it's certainly possible that the grand jury's decision will have been made prior to training camp now that there is some movement in the case it's hard to imagine Kane being to training camp until a decision has been made. There's no need for the team to publicly discuss it until training camp starts however privately Kane would be aware ahead of time if a decision has not been made by the start of camp that he can stay home.

 

[Periwinkle]

What is this "smoking gun" that could possibly exist? And if it does exist and the DA has it why is Kane still out on the street?.

Based on your experience, if someone suspected of rape was arrested right off the bat, would he remain in jail throughout the investigation before charges were filed? I.e. the whole month to two months waiting for forensics results?

 

[BroadwayJay*]

I think you've been quite rude to me thus far and I've been chalking it up to a difficulty in your grasp of English. I hope that's the case. I'm sure you'll be equally critical of the fact that I'm answering this question as you have been of every effort I've made to guide you folks, but I will nevertheless answer your question.

A person will be offered "bail" as required by statute. The People can ask for a remand, or ask for an amount of bail so tremendous as to be a de facto remand. However the preference is to offer some sort of bail to assure the defendant's return to court.

If the person is one of means and can afford an amount of bail, or perhaps the smaller amount required to be paid to a bail bondsman to have that bondsman post the bail, they will be released on bail. If that person cannot afford the amount of money they will remain incarcerated.

Since I am a private lawyer, many of my clients are of means and can make bail.

In technical answer to your questions:

Based on your experience, if someone suspected of rape was arrested right off the bat

I've never seen an arrest take this long in a rape case.

would he remain in jail throughout the investigation before charges were filed?

If a person is arrested on a rape and not indicted within five days he has to be released pursuant to Criminal Procedure Law 180.80. Charges are filed on the same day the arrest is made, typically about 24 hours later. Or at least a criminal complaint is drafted, the defendant is arraigned on that complaint, and bail is set.

I.e. the whole month to two months waiting for forensics results?

The "forensic results" or DNA testing appear almost completely irrelevant to the prosecution decision since the alleged rapist is known to the complainant. The only possibility would be if the defense was that he didn't have sex with her. I sincerely doubt that's the defense, nor do we have any indication that the defense would be known to the prosecution; even if he proffered as has been reported at one point. What could the forensic results POSSIBLY reveal on the element of consent, the only issue that I suspect would be disputed. The length of time it takes to procure forensic results are not dispositive of the bail issue.

 

[BobbyJet]

I think you've been quite rude to me thus far and I've been chalking it up to a difficulty in your grasp of English. I hope that's the case. I'm sure you'll be equally critical of the fact that I'm answering this question as you have been of every effort I've made to guide you folks, but I will nevertheless answer your question.

A person will be offered "bail" as required by statute. The People can ask for a remand, or ask for an amount of bail so tremendous as to be a de facto remand. However the preference is to offer some sort of bail to assure the defendant's return to court.

If the person is one of means and can afford an amount of bail, or perhaps the smaller amount required to be paid to a bail bondsman to have that bondsman post the bail, they will be released on bail. If that person cannot afford the amount of money they will remain incarcerated.

Since I am a private lawyer, many of my clients are of means and can make bail.

In technical answer to your questions:



I've never seen an arrest take this long in a rape case.



If a person is arrested on a rape and not indicted within five days he has to be released pursuant to Criminal Procedure Law 180.80. Charges are filed on the same day the arrest is made, typically about 24 hours later. Or at least a criminal complaint is drafted, the defendant is arraigned on that complaint, and bail is set.



The "forensic results" or DNA testing appear almost completely irrelevant to the prosecution decision since the alleged rapist is known to the complainant. The only possibility would be if the defense was that he didn't have sex with her. I sincerely doubt that's the defense, nor do we have any indication that the defense would be known to the prosecution; even if he proffered as has been reported at one point. What could the forensic results POSSIBLY reveal on the element of consent, the only issue that I suspect would be disputed. The length of time it takes to procure forensic results are not dispositive of the bail issue.

Your take on the DNA testing is contrary to most of the reports we are reading, claiming that any pending charges hinge on the forensic results (which could take months).

PS .... Good to see you take the high road on some of these conversations.

 

[BroadwayJay*]

Your take on the DNA testing is contrary to most of the reports we are reading, claiming that any pending charges hinge on the forensic results (which could take months).

I think that's law enforcement spin.

The only way that the forensics would be important is if there is doubt as to whether they had sex at all, right?

What else could the forensics possibly tell us?

Unless of course this is a situation where she says he held a knife to her throat and they're testing the knife or some situation like that. I've been dismissing that possibility because a guy accused of a knife-point rape is getting arrested immediately. Maybe I shouldn't dismiss it?

The "reports" all seem so incorrect to me that I'm often perplexed. I also thought the SI article was off on a lot of points. It looked like a transactional lawyer was just offering general guidance without any insight into New York's criminal procedure. That, of course, is neither here nor there.

 

[hisgirlfriday]

Sometimes people are subpoenaed out of the blue. Other times the cops reach out and the witness refuses to speak to them so the DA or grand jury uses its subpoena power.

Hard to speculate on this one and one of your fellow posters seems to be very offended by my speculations. Nevertheless, the fact that she told someone about the subpoena means she isn't entirely cooperative with the DA. There are countless reasons why that would be and I can't begin to speculate on that with any accuracy

an earlier report noted the friend had her own attorney which I found very strange. guess everything about this case is strange.

 

[x Tame Impala]

I have no idea what I'm talking about here, but I still find it very hard to believe that a very rich, very famous athlete will be convicted of anything like this with so much apparent gray area.

Kane doesn't miss a game in a Hawks sweater

 

[Illinihockey]

I think that's law enforcement spin.

The only way that the forensics would be important is if there is doubt as to whether they had sex at all, right?

What else could the forensics possibly tell us?

Unless of course this is a situation where she says he held a knife to her throat and they're testing the knife or some situation like that. I've been dismissing that possibility because a guy accused of a knife-point rape is getting arrested immediately. Maybe I shouldn't dismiss it?

The "reports" all seem so incorrect to me that I'm often perplexed. I also thought the SI article was off on a lot of points. It looked like a transactional lawyer was just offering general guidance without any insight into New York's criminal procedure. That, of course, is neither here nor there.

I don't know but would forensics of a rape kit show something like blood inside the vagina which would be evidence of a rape? I don't know the ins and outs of what is done during the administration of a rape kit