Appellate Division, 4th Department

We’re familiar with that court.

Greenfield takes them to task today, and rightly so.  But he also beats up on another lawyer, whose “screw up” led to the bad result on appeal.

Except that it didn’t, and everyone knows it.

The quibble is that the defendant’s lawyer didn’t object to an improper question by the prosecutor at the trial.  That left the issue “unpreserved” for appellate review, which was duly noted by the 4th department, which then declined to exercise its “discretion” to review the issue anyway.

But if the issue had been properly preserved, then the 4th department would have either:  a) simply misrepresented the record or not mentioned it at all, two of their favorite practices; or b) “reviewed” the issue but found any error “harmless” because the proof of the defendant’s guilt was “overwhelming”, a misnomer of a standard that is actually satisfied by the thinnest of proof.

Almost Ten Years

That’s how long both a major sports network – ESPN – and police had a smoking gun tape of a conversation between the wife of Syracuse University Assistant Basketball coach Bernie Fine and one of his sexual abuse victims.

And in all that time they did nothing.

Not until a similar scandal erupted at Penn State.  Now, apparently, it’s time to “do something”.

When the Penn State scandal took off there was much discussion about those who knew and did nothing, much of it focusing harshly on an assistant coach named McQueary, who was almost universally faulted for “not doing enough” when he allegedly observed assistant coach Jerry Sandusky raping a 10 year old boy in the campus showers.  Specifically, many said McQueary should have gone right to police and by-passed head coach Joe Paterno if necessary.

Yet McQueary didn’t have anything on tape.  He didn’t have a smoking gun.  What if not only Sandusky but his alleged victim denied the allegations?  No matter what McQueary saw, there’s no guarantee something like that wouldn’t have happened.

That would be the end of McQueary’s career, right?  And maybe worse.