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

[Hawkscap]

Is it true that all felony cases in NY go before a Grand Jury first?

 

[BroadwayJay*]

Is it true that all felony cases in NY go before a Grand Jury first?

It is true, with an irrelevant exception.

The RIGHT to be prosecuted by grand jury is part of the NY constitution.

However that right can be waived (like many other rights, but not all). However that right is typically only waived in certain plea arrangements that are not worth discussing in this context.

For your purposes, yes all felony cases in NY go before a Grand Jury before appearing in Supreme Court. It is a jurisdictional requirement.

 

[BroadwayJay*]

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

I believe I mentioned that in an earlier post.

Why would a complaining witness need a criminal defense attorney? I won't speculate on the only obvious reason because it causes great angst in one of your fellow posters. I can think of only one reason.

I also think it is somewhat suspect that she acquired a "legal team" immediately.

 

[Hawkscap]

I believe I mentioned that in an earlier post.

Why would a complaining witness need a criminal defense attorney? I won't speculate on the only obvious reason because it causes great angst in one of your fellow posters. I can think of only one reason.

I also think it is somewhat suspect that she acquired a "legal team" immediately.

She is accusing a famous athlete of a heinous crime. I wouldn't go a step w/o my lawyer being present.

At least, we know what your angle is now.

 

[BroadwayJay*]

She is accusing a famous athlete of a heinous crime. I wouldn't go a step w/o my lawyer being present.

My goodness, I wholly agree. I think it is always good advice to meet with a lawyer before proceeding on any matter.

However, I do not know that a personal injury lawyer is the first person you should turn to. And for the second person to be someone like me, who DEFENDS people accused of crimes, speaks volumes about what we're dealing with.

At least, we know what your angle is now.

What precisely is my angle? I've made no secret of the fact that I REPRESENT CRIMINAL DEFENDANTS IN THE STATE AND CITY OF NEW YORK.

As I've repeatedly stated, take what I say with a grain of salt because I'm a dyed-in-the-wool defense attorney. My angle is that of a criminal defense attorney. Is that something that you're only now discovering?

 

[Hawkscap]

As I've repeatedly stated, take what I say with a grain of salt because I'm a dyed-in-the-wool defense attorney. My angle is that of a criminal defense attorney. Is that something that you're only now discovering?

Up until now, I think you have been pretty neutral about this whole situation.I completely forgot you were criminal defense attorney, which then explains what you were implying

 

[BroadwayJay*]

Up until now, I think you have been pretty neutral about this whole situation.I completely forgot you were criminal defense attorney, which then explains what you were implying

I am still entirely neutral. It makes no difference to me one way or another what happens.

In terms of the "horse race", I am always looking for the trial defense; which is precisely why you would want to hire me if you were jammed up.

It IS entirely suspect that she sought counsel for the personal injury case immediately. If you were a juror, wouldn't that pique your interest?

That isn't an "angle". It is just a fact.

 

[Hawkscap]

If you were a juror, wouldn't that pique your interest?

Nope.

 

[Periwinkle]

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.

Thank you for answering despite our disagreement. If you say it's uncommon that an arrest has not taken place, I believe you. Leaving that aside for the moment, I find the system and normal way to proceeed (as you described) somewhat perplexing, maybe because I'm not sure about the relationship between filing charges and indictment by a grand jury. If I understood correctly, the police, or the police and DA together investigate, DA files charges to present the case for a grand jury for an indictment. You also mention that the threshold for an arrest is very low, and typically charges are filed within 24 hours of an arrest. Feel free to correct my misunderstandings.

Leaving the lack of an arrest aside in this case, I'm trying to process this through a hypothetical. A rape accusation is made, alleged victim goes through a rape examination, names the perpetrator. The police has probable cause to arrest since her story seems believable, even though there is very little other physical evidence, but perhaps some, like a bruise. The police soon after arrest the alleged attacker.

The DA finds the alleged victim's story believable. The alleged attacker, either decices not to say anything, or alternatively, admits to sexual contact but says it was consensual. Within days, even within 24 hours the DA files charges and present the case to the grand jury for indictment, without waiting for the results from the rape kit.He decides to do this because the results would not likely offer any viable information - I guess my question is, why does he make this call? The defendant or his council is not present at the grand jury proceedings (another poster mentioned this), so the grand jury has no input from him if he denies sexual activity taking place, or if the alleged attacker has chosen not to talk. Why would the DA not wait for the results before proceeding? He has a considerably weaker case in his hands to present.

Or do you explicitly mean a situation where the alleged attacker has admitted to consensual sex? I guess my question is, why wouldn't the DA wait for the DNA results before proceeding if they want to build a strong case, to establish certain facts like that sexual activity indeed took place. If in a situation where a person admits to sexual activity there is no additional value in the rape kit results, why would they even be processed?

Or, is there a gap between filing charges and the grand jury hearing, i.e. the results will be available by the grand jury hearing?

For the record, I'm not trying to pick a fight with you, I'm trying to understand.

 

[BroadwayJay*]

If you say it's uncommon that an arrest has not taken place, I believe you. Leaving that aside for the moment, I find the system and normal way to proceeed (as you described) somewhat perplexing, maybe because I'm not sure about the relationship between filing charges and indictment by a grand jury. If I understood correctly, the police, or the police and DA together investigate, DA files charges to present the case for a grand jury for an indictment. You also mention that the threshold for an arrest is very low, and typically charges are filed within 24 hours of an arrest. Feel free to correct my misunderstandings.

Correct.

Leaving the lack of an arrest aside in this case, I'm trying to process this through a hypothetical. A rape accusation is made, alleged victim goes through a rape examination, names the perpetrator. The police has probable cause to arrest since her story seems believable, even though there is very little other physical evidence, but perhaps some, like a bruise. The police soon after arrest the alleged attacker.

The DA finds the alleged victim's story believable. The alleged attacker, either decices not to say anything, or alternatively, admits to sexual contact but says it was consensual.

The defendant is not required to say anything, first. And for a defendant to say something BEFORE he were arrested would be quite rare indeed. In fact, he'd be arrested first and then the cops would attempt to get him to waive his miranda rights and interrogate him at that time.

It would be highly unlikely that a statement would be taken before arrest.

Within days, even within 24 hours the DA files charges and present the case to the grand jury for indictment, without waiting for the results from the rape kit.He decides to do this because the results would not likely offer any viable information - I guess my question is, why does he make this call?

Because he has to present the case to the grand jury for it to proceed. This is required within five days or the defendant is released and the case has to proceed while the defendant is out. The DA cannot proceed on a felony without presenting to the grand jury and getting a true bill.

The defendant or his council is not present at the grand jury proceedings (another poster mentioned this)

I mentioned it several times. However the defendant does have the RIGHT to appear at the grand jury in his defense pursuant to Criminal Procedure Law 190.50. It is not entirely common to do that although this might be one time that it is worthwhile.

, so the grand jury has no input from him if he denies sexual activity taking place, or if the alleged attacker has chosen not to talk. Why would the DA not wait for the results before proceeding?

He doesn't need the results. He has the woman saying she was raped and that's ALL the grand jury has to decide if there is probable cause. That's all he needs and 99-100% of grand juries return on an indictment since the bar is so low.

He has a considerably weaker case in his hands to present.

No he doesn't.

Also, there is a speedy trial statute in New York as well. It is complicated and I won't be getting into it right now, but pre-trial delay is charged to the People.

Or do you explicitly mean a situation where the alleged attacker has admitted to consensual sex? I guess my question is, why wouldn't the DA wait for the DNA results before proceeding if they want to build a strong case, to establish certain facts like that sexual activity indeed took place. If in a situation where a person admits to sexual activity there is no additional value in the rape kit results, why would they even be processed?

Thousands of reasons. Most importantly it makes no sense to leave a person on the street who you think is a violent rapist. It looks very bad at trial and it looks very bad in the public and in the grand jury.

Or, is there a gap between filing charges and the grand jury hearing, i.e. the results will be available by the grand jury hearing?

You fail to understand that the results of the rape kit are only really important when the alleged attacker is unknown to the complainant. No, the results would rarely be ready by the grand jury presentation and, even if they were, they would probably not even be presented because the DA typically presents the minimum amount possible to minimize Rosario material.

 

[BroadwayJay*]

Nope.

Hm, so you don't think that's a probative fact on the credibility of the witness?

What if Patrick Kane called a defense attorney the minute she left his house, and hired him, before she called the police? Would that pique your interest as a juror?

 

[hawksrule]

Hm, so you don't think that's a probative fact on the credibility of the witness?

What if Patrick Kane called a defense attorney the minute she left his house, and hired him, before she called the police? Would that pique your interest as a juror?

I would like to think a judge would instruct the jury not to let that affect their opinions towards either side.

 

[BroadwayJay*]

I would like to think a judge would instruct the jury not to let that affect their opinions towards either side.

That fact would not be elicited as to the defendant. A judge's instructions cannot cure that sort of prejudice to the defendant. It is fair game to the witness though, for whom prejudice is irrelevant.

I'm just illustrating the point that information such as that do, and should, impact your thought process. And if you say it doesn't, you are not being forthright.

 

[BroadwayJay*]

I'm no longer going to be participating in this thread.

If anyone has questions you can send me an email through the email system.

 

[Periwinkle]

We don't have a disagreement. You are just rude and disrespectful to me seemingly because you do not like the information I'm providing. That's not a disagreement. I think you lack a complete grasp on the language and it is causing you to perceive matters incorrectly.

I was trying to downplay the situation. While my written output of the language is not of course perfect, and even I frequently spot grammatical errors I've made due to typing fast&not being a native speaker, my understanding of the English language is at an excellent level (even though of course it can never the perfect). I still think exactly what I wrote. Just to clarify, since you insist on that being a language issue.

He doesn't need the results. He has the woman saying she was raped and that's ALL the grand jury has to decide if there is probable cause. That's all he needs and 99-100% of grand juries return on an indictment since the bar is so low.

Interesting. With this being a high profile case, and the DA being known to be very conservative ("Slam Dunk Frank" I believe was the nickname), and going on record in saying one must be careful with a case like this as a person's name gets easily tainted, I would be very, very surpised if the decided to present the case without potentially very valuable info available to him.

I respect your view as a lawyer practising in this area; nevertheless I don't find it convincing that under those circumstances (literally one of the biggest sports hero in the area) a DA would choose to merely present an accusation while filing charges, if additional evidence could be available (establishing sexual activity took place if Kane has not said a word). If he doesn't, wouldn't the court of public opinion slam him anyway for not taking the time to present potentially relevant information, should the grand jury not find probable cause? OJ case showed us jurors can be influenced by the defendant's celebrity, thus why risk it?

Thousands of reasons. Most importantly it makes no sense to leave a person on the street who you think is a violent rapist. It looks very bad at trial and it looks very bad in the public and in the grand jury.

This is why I asked about the arrest and time spent in jail. Even if Kane would have been arrested soon after the accusation was made, likelyhood is great that he would have been back on the streets a few days later anyway, as the police and the DA seem to take their time with the investigation/filing charges. No, I'm not trying to pass this as a reason not to arrest, rather than to point out that despite an arrest a potentially dangerous rapist would be back on the streets no matter what.

 

[EbonyRaptor]

I'm no longer going to be participating in this thread.

If anyone has questions you can send me an email through the email system.

Thanks for your time and helping to bring clarity. Much appreciated.

 

[kmwtrucks]

I'm no longer going to be participating in this thread.

If anyone has questions you can send me an email through the email system.

I really appreciated your posts, but like any message board a few people ruin it for the silent majority. People he was just giving us Midwest hockey fans a peak into what goes on in a NY courts and an occasionally opinion what things could or could not mean. Why do people need to attack and question other people's opinion and credibility. the worst part is they are usually only attacking the posters that actually bring useful info to the board.

 

[No Fun Shogun]

Part III:

http://hfboards.mandatory.com/showthread.php?p=106545271