GG89: NY Defense Attorney Calls the Tompkins County DA's Cornell Decision "Truly Stunning"

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:25 Thomas: Gavel in, Gavelinos. I'm Thomas. That over there is Lydia. How are doing?

0:00:29 Lydia: Oh, hi. Doing pretty well. Yeah, I mean, given the topic of today, again, you know, but pretty well.

0:00:36 Thomas: Yeah, I'm excited to welcome back to the show Liz Skeen. And in particular, Cornell thing has been talked about a lot. But what I love about this show is Liz Skeen is somebody who specifically works in specifically New York as a criminal defense attorney For people who get accused of stuff like now, it's going to be different because she doesn't represent very privileged ass people in elite universities, I think it makes it even more vital to hear Liz's point of view because she represents the kind of people who would give you a truer sense based on their experience of how the justice system actually works most of the time for the people you don't hear about. And while I know that you've probably heard a lot about Cornell at this point, everyone, I think this is a really important episode to really on the ground, realistic and fact based analysis of what went on here. Not what went on at that night at the frat and all that, not that, but legally speaking, in terms of the investigation or lack thereof and the charging decisions and all that.

0:00:54 Lydia: Mm-hmm. Right. Exactly.

0:01:48 Thomas: That's why I'm really excited to have Liz on for this because I just don't think there's a whole lot of that out there so I'm doing great because it's a great day anytime we get to talk to Liz but I'm also just excited to bring folks this recording I think it's really important to hear Is there anything else going on around the around the around the we got the website up so

0:01:57 Lydia: It makes sense. Yeah. Yeah, I agree. Yeah, website's up. Check it out, seriouspod.com.

0:02:11 Thomas: If yeah, if anyone's still in the year 2006 or so, it's fucking great. Yeah.

0:02:16 Lydia: I mean, there are, surprisingly, a lot of people out in the world who actually don't listen to podcasts and so they don't have podcast apps on their phones or anything like that.

0:02:25 Thomas: Call them dead.

0:02:25 Lydia: But we have heard from some people who have wanted to share the show with people that don't otherwise listen to podcasts and the website now offers that ability. It also has transcripts for every single show that we do.

0:02:36 Thomas: Yeah. Not every episode is done yet, but it has their crunch in the numbers Yeah, yeah, exactly. It's so funny, I part of the reason it took so long to get that done is like, we don't need it but we do need it. Like, it's in this day and age, it's like, who goes to a website? But also there's like very specific things that it is good for, especially sharing the show. We'd hear from a lot of people were like, how do I share it? And I'm, yeah, yeah, I guess we do need a web website for that.

0:02:42 Lydia: Process Yep. Yeah.

0:03:03 Thomas: Yeah. Which is just ugly.

0:03:01 Lydia: The Libsyn link like That's not very

0:03:04 Thomas: And you know, so that's cool. Uh, and that's serious pod.com, which has all the shows and everything. If you want to go there, check it out. All right. Well, announcements aside, why don't we take that first break? And then I can't wait to speak to Liz Skeen always, but especially now about this.

0:03:04 Lydia: Effective Yeah.

0:03:19 Lydia: Same.

0:03:29 Thomas: Liz Skeen, I'm so glad we have you for this, how are you doing?

0:03:32 Liz: I'm good. Ready to talk talk about this huge topic that is really terrible and that's been consuming the news, and try to break it all down with you guys. The best crew I know to do it with.

0:03:43 Lydia: Yeah, so thankful to have you here, because, yeah, it's a big one. It's a tough one.

0:03:45 Liz: Yeah.

0:03:48 Thomas: Legally, this is feeling a little weird. Like, when we read through the complaint, it felt odd in certain ways. I'm very curious about that. And know there's been another legal complaint that just happened somewhat recently that's related. And then, of course, there's the one we also reference. So right now, I think there's like maybe three, but I don't know how important the other two are yet. So we got obviously Jane Doe's complaint. Then there's the guy who had already tried to say like, oh, this decision was invalid because I the different things we can't.

0:03:53 Liz: Yeah. Yeah.

0:04:18 Lydia: Kretschmar, yeah.

0:04:19 Thomas: Yeah. Yeah. He was like, oh, this wasn't fair that I was not found responsible for something that I didn't wasn't like initially kind of accused of. And that didn't go anywhere. But there was some paperwork we got through that. That was interesting. And then I just saw somebody, I don't know which dude, but one of the dudes tried to get the special prosecutor take dismiss.

0:04:39 Lydia: Yeah, it's... Giulio Lopez, wants Letitia James pulled off of it because they're alleging bias, I think, you know, based off of her statements that have come out already.

0:04:47 Thomas: Huh? Well, that's interesting.

0:04:49 Liz: That's interesting. Yeah.

0:04:49 Thomas: But today we're mainly looking at that Jane Doe complaint. And like we said on the first couple episodes, I felt it was a little weird. I've never seen so much boilerplate writing that went so long. It was crazy how it was 101 pages and then so much, what was it like 60 of it was just repeating the same things over and over, which seems like a lot, but I don't know. Maybe, maybe not. What'd you make of it?

0:04:50 Liz: I Like, the worst thing I'd ever seen. Like there is a lot of repetition in complaints, particularly where this one, there are so many different defendants. Right. So you have to just like literally be like, at all times, this person was this, at all times, this person was this, you know, this, Cornell University was subject to this law, that sort of thing. So I don't think the complaint seemed too odd to me on any procedural level. Like there is just a lot of repetition when you've got these multi-defendant ones, because you have to kind of repeat the allegations oftentimes as to each defendant in a way that is, I would say, jarring and annoying to the reader.

0:05:32 Thomas: Okay. I see. Yeah. Yeah, maybe it's just a little more than we've seen in the past, but OK, that makes sense. Wasn't it weird, though, to to do each defendant as negligent for not stopping themselves, but then also negligent for not stopping all the other ones for sexual assault? That felt I don't know. I felt weird to me.

0:06:00 Lydia: Mm-hmm.

0:06:03 Liz: There's definitely a strategy of civil litigation where you just put everything in. Know, Like, and again, I'm just like half counting here. I mean, there are like 15 defendants or something. Like that's a crazy number of defendants.

0:06:06 Thomas: Hmm. OK. Mm hmm. Yeah. OK. OK, so is it plausible to be negligent for your own behavior and not stopping your own sexual assault? And then so are you just putting in the bucket of like, yeah, this is civil litigation. You're going to you're throwing everything at the wall.

0:06:25 Lydia: Spaghetti on the wall, yeah. Yeah.

0:06:26 Liz: You're throwing spaghetti on the wall here. Yeah. That's, that's what I would say. You're throwing spaghetti on on the wall here. One thing that struck me that was a little unusual is, I was you kind of curious about the attorneys here. And I feel like I haven't seen discussion of this one point where there's two attorneys listed. There's Thomas Jeffra, who's this attorney who seems to do a lot of these types of cases, who's based in New York. And then there's a guy, Whitney Seals, who appears to be an insurance attorney in Birmingham, Alabama. Went upon Googling him, I really just didn't get a lot of information as as to why it is that he is, and he's listed, you know, as, um, pro hac vice, um, or pro hac vice as it would appear to a non-lawyer like, that means that he's getting like, he's trying to get like this sort of temporary admission from out

0:06:27 Thomas: OK. OK. Hmm. That's weird. Huh. Mm

0:07:04 Liz: Of state. But yeah, I was kind of curious about that.

0:07:04 Thomas: Hmm.

0:07:06 Lydia: Think that maybe that has something to, yeah. Yeah. I'm wondering if it just has to do with, cause I know that Jane Doe left Cornell. So maybe it was just like based off of proximity to finding a lawyer where she's based out of now, perhaps.

0:07:07 Thomas: Like a relative or something.

0:07:19 Liz: Think it was something probably like that. It is just kind of funny. Cause he really is doesn't, I mean, he doesn't even seem like he was the first person I would call if I were in Alabama. Again, I maybe I'm wrong about this, but I just thought that was kind of interesting also because I he mean, he could have just kind of referred the case. He doesn't necessarily need to be on the complaint.

0:07:26 Lydia: Yeah. It's

0:07:34 Thomas: Hmm.

0:07:34 Liz: He's not doing any media. He doesn't appear to be. So I was just kind of, yeah, maybe.

0:07:36 Thomas: Could it be a relative then? OK.

0:07:39 Liz: I have no idea. It was just a little odd. I'd be curious to know kind of what that about there. But I mean, it's a very long, very detailed well in some respects very detailed Uh.

0:07:40 Thomas: Hmm. I would say not very detailed. Yeah.

0:07:50 Liz: Yeah, yeah, very, it's a very long, not very detailed. Actually, the allegation section is quite short, um, but you know, very, I would say, comprehensive as to sort of arguing that, you all these people and individuals are, you know, had engaged in various forms of of negligence, um, and failed to engage in reasonable care and so on. Even suing sorority.

0:08:13 Thomas: Authentic. Lawyer paper, paper shuffling, we're getting there. I always love it with Liz.

0:08:17 Liz: So exactly. That's what you hear there is real authentic lawyer paper shuffling.

0:08:20 Thomas: Does she do it? Yeah.

0:08:22 Liz: I think there's a lot to break down here, in of the stuff that I have a lot to say about in particular is talking about the decision, apparently, of of the Tompkins County District Attorney to not prosecute the case, where I think there's some really troubling things that happened there.

0:08:38 Thomas: Definitely, uh, take us through, wherever you it want to go. We kind of read through the complaint already, so, So, sure.

0:08:45 Liz: I mean, I would direct, and I would put a link, or you all can just Google this, but if you Google the Tompkins County District Attorney statement on, you know, Jane Doe, he the District Attorney for for the county put out an eight page statement as to why he made the decision or his office made the decision back in 2024, not to, you know, engage in a criminal prosecution of the case. And I, there's so much to say, say about the statement. There's so much to say about the process. But the first thing I just kind of want to note is, like, when we think about this is how crazy the sort of process is, in the sense that she, so Jane Doe initially, this incident, I'm just going to be, if you forgive me a defense, as I'm going to call this incident, it, this thing happens, this terrible, terrible thing happens.

0:09:32 Liz: And a couple of weeks later, she goes to the emergency room in Ithaca, she requests a rape kit. Okay. Um, which by the way, like oftentimes will trigger with the permission of the, of individual police action. And then right after that, the day after she reports the incident to the Cornell police. And what I think is a little funny is like kind of like this relationship of like, what what goes on with like campus police. Like, and I don't know if you all remember from your times in undergrad or people who are listening, like, like, are the police like real police? Are they fake police? You know what I mean? Are they like peace officers? You know, and I looked into this in the case of Cornell, because I think this is important. Because the question is like, like, who are they really working for?

0:10:04 Thomas: Yeah. Yeah.

0:10:14 Liz: If they're working for the university, they you know, they're like making decisions at the behest of the university potentially, right?

0:10:20 Lydia: Like HR for a company, Right? Like they're not for the employee, they're for the company. They

0:10:21 Thomas: Yeah, exactly.

0:10:25 Liz: 100%. And this is exactly kind of what I'm thinking as I'm going through this. And here, apparently at Cornell, I looked this up, the county sheriff appoints the Cornell officers. They're like special duty sheriffs and they take an oath and they have these peace officer powers, but they're like kind of hybrid. And importantly, thank you, Lydia, they are employees of the university under its supervision and control. So yeah, they have some powers that are authorized by the sheriff, but also their university employees. And they're peace officers. They're not police officers, right? I mean, we can call them that, but as a real... And so she reports it to them, and they engage in some sort of investigation over the course of basically a week or something, and they get her statement.

0:11:12 Liz: And they then reduce her her statement, or they have her reduce her statement to like four pages,

0:11:18 Thomas: Yeah, I think I saw six, but I don't know if that's, yeah.

0:11:20 Liz: Oh, six pages. Yeah, I think you're right, six pages. And the DA gets a copy of this. And he says in Jane Doe provided a single, this isn't from the DA's press release, a six-page single-spaced typewritten statement to Cornell University University Police Department. Jane Doe had made more than 20 handwritten notations to the six page document. The signature page contains the following language. I've read the statement and the facts that are incorrect, blah, blah, blah. Point being, so the DA's office gets a six page statement and based on the statement, they decide not, not that there's no criminal referral. There's no crime that happened here.

0:11:53 Lydia: Don't even want to ask questions like That's Crazy To me

0:11:54 Thomas: Yeah.

0:11:55 Liz: That's crazy to me. Me. It's crazy to me. And also, these are a bunch of, excuse my language, a bunch of effing police officers. They don't know the law. Do you know what I mean? I'm just like, they're not... And this is a really complicated case. Three different subsections of the New York rape statute. There's rape one, rape two, rape three. There's different things that go into each of them. Lawyer... There are also things that could... Okay, okay, she consented at this juncture, but then she said no. And at the juncture at which she said no, someone touched her breast. By the way, might that not be rape, but that's sex abuse crime. You know what I mean? There's so much stuff that happened here and it's so clear so much stuff happened here. There's so many people. And I'm like, how did you not want to question her.

0:11:56 Lydia: Yeah. Right

0:12:39 Thomas: Yeah.

0:12:39 Liz: Like, that's crazy.

0:12:41 Lydia: I The idea too that she added handwritten notations of things that she disagreed With the, you know, officers after they typed up her statement In quotes, because it was based off of their conversations with her, she didn't write it. And then she hand wrote corrections to things. To me, if I saw someone's like crossing something out and stuff, like, I would at least want to go talk to them and be like, like, I want to know the story from you specifically right now. Like, let's talk about this. But crazy.

0:12:45 Liz: Yeah. Yes.

0:13:07 Liz: Yeah. You're so good. Exactly. It's like, turn the page on that. Like he's trying to use that to be like, look, she really reviewed it. It's like, no, no, no. This means there were so many issues in it. And also again, let's go back. It's HR wrote up the statement. Like, and, and she's presented with it. And so she corrects some things, but maybe it doesn't contain some things that she thinks should be there. Like, do you know what I mean? It's like, maybe it doesn't.

0:13:13 Lydia: Mm-hmm. Yeah.

0:13:26 Thomas: Yeah, and she's not a lawyer, like, yeah, she knows the story, but she's not a lawyer enough to know, like, which things might be more important in terms of sequencing or anything like that.

0:13:28 Liz: Yeah, exactly. Any of that stuff.

0:13:37 Lydia: Not to mention just, like, working through the psychological toll of this having just happened, too.

0:13:43 Liz: 100%. And so I just find find that to be stunning. And then, you know what the DA proceeds to do in his eight-page press release? You even longer, well, I guess double space, but it's still the even, same length as Jane Doe's, by the way, apparently, like that he just dismissed. He then goes on and then says, oh, he's not going to provide the statement because

0:14:01 Lydia: No, he paraphrases it.

0:14:02 Thomas: The six-page one?

0:14:03 Lydia: Mm-hmm.

0:14:03 Liz: He paraphrases her own statement. I'm like, now we're just now going three levels deep. Let's just do turtles on turtles. How about I paraphrase his statement and we just keep paraphrasing statements? What are you doing? If you're going to say that based on this statement that you didn't think there was a need to prosecute, I don't know, why don't you you provide it or provide significant quotations. He says like, Oh, I, you know, he kind of comes up with the, Oh, protection of her, whatever, provide it. I just find that to be crazy or don't, or don't put out your defensive statement. I. And so he paraphrases it and, you know, his paraphrasing, yeah, is not the most sympathetic, although still raises lots of questions. Like even in the one that he has, he includes information about how one of the participants wanted to make it a foursome and she says, hell no. You know what I mean? Someone reach for the area near her vagina and she would swat his hand away.

Things like that are still even in his version of the paraphrase. So I just have some questions. I'm interview her? Also, apparently there was a full transcript that, I mean, they have a full transcript of what then gets reduced into her statement, which is like 100 pages or something. And some news outlets got this. But why don't you read the transcript? Oh, come on. You're literally a lawyer. Read 100 pages.

0:14:05 Lydia: Yeah.

0:14:13 Thomas: Yeah. Yeah. Yeah.

0:15:12 Liz: Unbelievable to me. Sorry, I'm getting really,

0:15:13 Thomas: Yeah. No, no, totally. I do sort of wonder, like, why didn't she include any of that in her lawsuit? I mean, I guess she didn't have to, but it seems weird.

0:15:23 Liz: Think she knew what happened on the, the, um, she, she didn't know what happened on the police end until they well

0:15:27 Thomas: Oh, even when she filed her lawsuit? All the way that far?

0:15:30 Liz: No I don't think she, no, no, I think she had no idea because this goes into another critique I have to the defensiveness of the the Tompkins County DA statement, so he says in this, and I'll just read this, this, at least partial paragraph. "Following our review, we We confirmed with C.U.P.D. that criminal charges were not appropriate based on Jane Doe's statement." So, first thing, we confirmed tells you what's going on here. Like C.U.P.D. is like, we don't think this is rape. Like doing an independent evaluation as attorneys, please. Thank you. Anyway, as is my longstanding policy in cases such as this, we also asked C.U.P.D. to inform Jane Doe at her option that we'd personally meet with her to explain our decision and answer any official questions. Her questions. If such a request is made, the police investigator facilitates a meeting with our office.

CUPD thereafter explained the results of our review to Jane Doe. As I mentioned, in the nearly two years since we were asked to review this case, neither Jane Doe nor her attorneys ever contacted the DA's office, not to seek answers, not to seek reconsideration of her case, and not to suggest her sworn statement was inaccurate.

0:15:34 Thomas: Really?

0:16:40 Liz: Rather, I reached out to Jane Doe's attorneys those to understand and resolve this discrepancy. F you.

0:16:47 Thomas: Wait, what discrepancy?

0:16:49 Liz: Yes. Thank you. The discrepancy, thank you. The discrepancy being that, Jane oh, Doe should have reached out to them first. I'm sorry. After they said, we're not going to prosecute your case.

0:16:59 Lydia: So then you're putting it on, like, a 19-year-old girl to insist upon a meeting.

0:17:01 Liz: You're putting on her again. Yeah. Insane. It's like bananas to me. Like I cannot get over that. Like, sorry, didn't, you told her that you would meet. I'm sorry that she did not want to meet with you after you reject it. Like, also she doesn't know the process. Like it's, it's also like, your lazy process that you only reviewed the the six page statement. I mean, I just, it I am gobs back. My mind is blown and that they blame her. Rather, I reached out to Jane's attorney, Doe's attorneys to understand and resolve this discrepancy. Are you kidding me?

0:17:18 Thomas: Yeah. Yeah.

0:17:19 Lydia: Right. Right. I

0:17:35 Thomas: Yeah, he's hero. We're lucky to have him. Thank you for your service.

0:17:39 Liz: It is unbelievable to me. I

0:17:42 Lydia: Feel like they know things did not go well for this. Otherwise, they would just say we're reopening the investigation and that would be it. This entire thing is CYA, right? Like I think they are very well aware.

0:17:51 Thomas: Yeah. Well. I mean just the fact that they are reopening it as a result of her lawsuit, which has very little in it, that should tell you, like, something's wrong, like something went wrong, somehow. I don't know what, but that if, anything they were saying was true, they should just be like, yeah, no, we don't care, we're not, we don't not yeah she can and pursue a civil thing, but yeah, we're, we're not doing anything, why the big change?

0:18:00 Lydia: Yeah. Right. We know the facts as they were presented to us and yeah. Yeah. The

0:18:20 Liz: The other thing that struck me and I, you know, consider this in in comparison to cases that I have handled, is I would say, and I don't want to overgeneralize, I think that there are many circumstances where rapes and sexual violence against women are under-considered and not. But I would say, in my experience with the Manhattan District Attorney's Office, they take of sexual violence very, very seriously. And I think post Me Too, two, that's absolutely the case. I think even pre me too, in many instances, uh, most in many places, that was the case because I just want to say like, if you're a prosecutor and you know, you go to law school and you want to prosecute things like you mostly, you go to school because you want to prosecute terrible rapes against women. Like that's what you want to do. Those are the cases you want.

0:19:05 Liz: You don't want to be like, let's give this guy another chance. Like that's not in general, like what most like, this is what you go to school for. This is what you you become a prosecutor for is like to, yes.

0:19:14 Lydia: Idea of protecting people. Yeah.

0:19:16 Liz: And so, you I will just tell you in terms of kind of how things proceed for my clients, and this is in contrast to the Cornell seven, um, who, as I say, were investigated by their HR department, uh, I've had a couple of rape cases where I represented individuals dismissed. And the way this worked was I had clients who basically were in the instances I'm talking about, and they're not not very many. Right. But these were cases where, um, were, I mean, from the prosecutor's perspective, there were, there was not enough evidence from my perspective, my clients were innocent. Um, but they were ones where, uh, the reporting happened very far down the line and there wasn't physical evidence and there, it was a single witness account. Um, no other forensic evidence or like text message evidence that was supporting. Wasn't. And It then we're there were were like, also in all, all these like other potential motivations for reporting the rape that were not, you know, and what I want to say about that is my clients were charged.

0:19:16 Lydia: Do

0:20:08 Liz: They were arrested. Okay. On the basis of a single witness account that had problems with it. And the prosecutor knew that, right. They were arrested. They were charged. The prosecutor then proceeded to investigate this. In certain instances, I provided supporting information. I had in one one instance, lot of information that was, uh, helpful to say that this was not what had happened. In at Um, least one or two instances, we, the prosecutor actually met with my client and a proffer style, uh, interview. And then they also conducted additional potentially reviewed client cell phone records, other cell phone records. Like they did an investigation, but I want to say, but I want to emphasize this is like these, my, my clients were on the basis of a single witness account that everyone knew had some problems, with it, uh, were charged and arrested.

0:20:51 Thomas: Yeah.

0:20:51 Liz: You know, and ultimately these cases were dismissed because the prosecutor did this investigation and I think rigorously and made the determination that rape charges were not warranted. Right. And I just find it sort of the process that happens over in Cornell where like HR department investigates, forces this woman, not forces, I shouldn't say that, but like writes up some statement that she she makes all these corrections to, gets her to sign it. And then like the DA's office reviews this time. Like, that's just crazy to me. Like, why wouldn't you interview anybody? Like again, if it were my clients, they all would have been charged. And then the investigation would have happened thereafter. Just so you know, yes.

0:21:26 Thomas: You're Saying even in a weak case where they're not They don't end up charged Or you know, prosecuting

0:21:30 Liz: Yeah. These were all cases, the ones I'm thinking of, all three cases, they weren't indicted. So they never convened a grand jury. They basically, they kind of waited on that point. I waived time. So I I said, if you're really investigating this, yeah, my client didn't do this. Do the investigation. You don't have to bring a grand jury tomorrow. We can do this. And based on their investigation, they determined that the charges weren't warranted.

0:21:52 Lydia: You think like some of that is the potentially insulating effect of an Ivy League school that is a huge, huge part of this county in particular and their economy and, you know, like do you think that they receive, I don't know, I don't want to say like special treatment, but they become almost like this monolith, I guess, where I Know.

0:22:14 Liz: Exactly.

0:22:14 Lydia: I know.

0:22:12 Thomas: Sure, she goes there too. No, But

0:22:15 Lydia: But But what I'm Saying is like Like In Terms of pursuing anything involving students there, like, do you feel like there's maybe that push and pull of politics involving Cornell? No, or

0:22:15 Thomas: Yeah.

0:22:15 Liz: No, I totally agree. I think so. And I also think it is something, I think it's Cornell. I also think it's just this idea of like, I do think privileged people just get a lot more consideration, right? Right. You, and you'll just see that sometimes you'll see, I don't have a good example offhand, but, you know, some privileged or wealthy person is investigating as to something. And maybe Harvey Weinstein, for example, and, you know, early days, and then the district attorney's office comes to its own conclusion that, they, they don't have the ability to prosecute the case or something like that. But they never even get charged. Right. Again, like they. They give them a lot of.

But that's when, we're at least the DA's office investigates. I, I, agree with you, Lydia. I think, you know, thinking about Cornell as an institution, it's obviously not in Cornell's interest to have lots of people, to have people in their school being violently raped, right? It's not in their interest. That being said, it's also really not in their interest to have high profile rape trials happening in Compton's County. That doesn't look good for Cornell. And that's not good for the relationship between the police,

0:22:32 Thomas: Right.

0:23:19 Liz: The district attorney and Cornell. So yeah, I agree. Of, one of the largest employers, no doubt, if not the largest in that county.

0:23:26 Thomas: But it's hard to know, it could be that, or could be a personal bias of this guy, you know, it's like, I can't really know for for sure.

0:23:33 Lydia: Just unconscious absorption of just rape culture, and you know, like He sees a thing where she says that she was interested in Ingles and he's like, oh, okay, well, you know, And brushes off the rest of it, you know, and I think Kind of breaking down some of those biases that people have just like allowed to be part of their psyche over decades and decades is You it's work, but you got to do it.

0:23:38 Thomas: Yeah.

0:23:45 Liz: Right. Yeah. Yeah. I think that's absolutely right. That's, I I think that's a big part of it. I think I was so struck by the language where they say they confirmed to the CUPD. It's like, no no one wanted this to be a rape case. It was the first thing that I had read before following our review, this is of the statement, we confirmed with CUPD that criminal charges were not appropriate based on Jane Doe's statement. I just found that like the use of the verb confirmed, CUPD, I think it implied to me, and this is a lawyer, choosing words, so I'm going to hold them to it. Like, it implied to me that CUPD basically came to him being like, we don't think this is a rape.

0:24:06 Thomas: Confirm the CUPD. What's that? Hmm.

0:24:21 Thomas: Yeah, that's weird.

0:24:33 Thomas: Yeah.

0:24:33 Liz: And he's like, we confirm it's not a rape. And it's just like, everyone doesn't want this to be a rape. And yeah.

0:24:38 Thomas: Well, that's, I think that's important. Like, do we know if that's bullshit or, you know what I mean? Cause that is trying to pass off the buck or whatever. If you like, well, we they, were just checking their work and we're like, yeah, no, it makes makes sense. Looks good. Or is that true or not? Or, or is it one of those things where it's like the Cornell police thought the like other police were going to actually do something, you know?

0:24:47 Liz: Yeah. I mean, well, it's it's like the Cornell police, you know, refer this thing being like, we don't think this is a rape. And the district attorney who's supposed to be the lawyer who's, you know, knows the different charges of rape, who knows also like all the different sex abuse charges as well. And also like assault charges, just regular old assault, because she had said that she was, you know, being hit really fucking hard.

0:25:11 Thomas: Hmm.

0:25:15 Lydia: Yeah. She ended up with bruises.

0:25:20 Liz: Yeah. And ends up in bruises. And so it's we confirmed with them, but that's not your job. Like you're supposed to, I often tell my clients, you um, know, to do a slight, tangent, but oftentimes I, when I get my client's papers, when they just get arrested and I meet them, you know, in behind the courtroom in the jail cells, you they'll tell me, oh, the police told me I was arrested for blah, blah, blah, blah. And the papers charge them. Maybe police the said it was only a robbery in the third degree, but they're charged with a robbery in the first degree. Or a petit larceny, but they're charged with a grand larceny. Or any number of things. And I say, I constantly have, I swear to you, this has to be one out of 10 interviews I have. I say, the police are not lawyers. They're making their best guess. But what they say to you, what they put on the papers, because sometimes my clients will have the arrest paper that says the police arrest charges, those are not relevant.

0:26:07 Liz: Arrested you. I mean, they maybe there can be interesting issues that can come up that in terms of how the police did the investigation, why they thought something that then the D.A. charged differently. But what I see them is like they're not they're making best guesses there. And it's like I just find it stunning that you you would rely on a short statement that was written by police officers effectively again. And in order to make such an important charging decision, am truly, I truly stunned by this. And I just think that they must have done this in the past. And maybe this is their thing. And, you know, it just it discourages having to deal with messy, you know, rape cases at Cornell University. I I am beside myself

0:26:45 Lydia: Yeah.

0:26:54 Thomas: So there's a lot that's that come out and I feel like I'm a little little bit worried about some of what feels like contradictions maybe and I'm and not entirely sure but I do think like to your point and I this is kind of what I was thinking too, like at the very least the police should have done more.

0:27:02 Liz: Yeah. Yes.

0:27:12 Thomas: There's even, if they were gonna eventually say, uh, we can't do it, like they gotta do more than see six pages of a summary that's like, oh, it has notes on it. That seems like unjustifiable in any world.

0:27:19 Liz: Yeah. Right. I mean, mean, the district attorney has to do more than just read a short summary of where there's a lot of actors and honestly, again, a lot of potential charges and to to make charging determinations. And this woman had requested a rape kit. She believed herself to have been raped and they needed to take that seriously. Seriously. She is their witness. And again, this is, I think kind of as we get into like, you know, what is the, you know, the three different levels of rape in New York. And I would say some of the other charges that I haven't really heard in the media that these individuals, you know, could have been subject to, you there are questions here that you certainly, and like, just I, to preview this, I can tell you, Like, I don't feel comfortable. I've seen like some hot takes of like, oh, this case is totally unprovable. I'm like, no, like, I don't I don't think so at all.

0:27:41 Thomas: Yeah. Yeah.

0:28:11 Liz: But also, I'm not comfortable with saying it's a totally provable case. But that's the point.

0:28:15 Lydia: Of course. Not. Mm-hmm.

0:28:16 Thomas: Yeah.

0:28:16 Liz: Should have been interviewed. And all these people should have been interviewed. How And did you not have lawyer? Well, well, actually, if they should not have been interviewed by the DA's office. They should have asked for a lawyer. Excuse me. But, withdrawn. But she should have been interviewed and they should have built out something there and just didn't do it.

0:28:25 Thomas: Yeah. Yeah.

0:28:27 Lydia: Yep.

0:28:33 Thomas: Well, and what about like documents and phone records and any of that? Like, did any of that happen?

0:28:37 Liz: Yes. I'm curious how they got, you know, the famous kind of Snapchat screenshots.

0:28:43 Thomas: That was because a student turned it in.

0:28:44 Liz: Right. I guess a student just turned that in. Right. But I'm like, the other thing is like the DA's office, like they'll seize phones and they'll use their power to, you know, do search. I'm like, you you know, what he did by not investigating this when he did it is like now it's like, yes, two years later, it's not going to be there. And so it's it's really just so it is it is so head in the sand and competent that is truly stunning to me. Like is the Tompkins County like district attorney's office on the list of people that she sued? I'm just checking. They should be, honestly.

0:28:47 Thomas: Yeah. Yeah.

0:29:00 Thomas: Help cover it up because it's, yeah, like the evidence is not going to be there.

0:29:03 Lydia: Yeah.

0:29:19 Thomas: Hmm. Hmm. Well, if what she said before is true and she didn't know even at the time she filed the lawsuit, then yeah, that'll, who knows?

0:29:23 Liz: Yeah. Well, right. I guess she didn't know, but let's do a new paper and add them for just being totally incompetent. Um, it's actually very hard to sue prosecutors, but nevertheless, I think everyone should do it when they can. Don't know. I mean, I guess the other thing that might be worth going through is I don't know how much we want to go through the different kind of charges that these individuals could be subject to under New York law.

0:29:30 Thomas: Yeah.

0:29:43 Lydia: I would love to do that.

0:29:44 Thomas: So criminal charges assuming the, you know, Letitia James does something. Yeah.

0:29:49 Lydia: What's on the table there?

0:29:51 Liz: Well, yeah. I mean, maybe it's worth even just going through like, timeline wise, you know, basically this, the Tompkins County DA did say he was, reopening the case at the end, you know, at the very end of his eight page statement, um, that was highly defensive, which is a little weird, but good for you. And then, know, it became very clear that Hochul was very frustrated with what was happening there. She wanted an outside investigation. And she appoints Tish James to go ahead as a special prosecutor. Right. Just James is the attorney general in New York. So they have like kind of like all encompassing jurisdiction. So in theory, their office can do they don't normally do criminal cases, but in theory they can. Yeah.

So I'll go through different, the the different degrees of rape, under um, New York law, which I think are, are somewhat standard, um, based on similar to other States. Um, there is this thing called the model penal code, which a lot of States criminal laws are based on a lot in of New New York's laws are based on it. So rape in the first degree is obviously the highest degree of rape. And Uh, a person is guilty of of rape in the first degree, when they engage in vaginal sexual conduct, oral sexual conduct,

0:30:04 Thomas: Yeah.

0:30:55 Liz: Or anal sexual conduct, and I'll just read the relevant things, by either forcible compulsion or someone who is incapable of consent by being physically helpless. What is forcible compulsion? That's either use of physical force, or it could be a threat, but that's not relevant here. And then what is physical helplessness? Physical helplessness is essentially being unconscious. We just don't know everything here, so I'm going to speak at a high level. Far as I can see, There hasn't been an explicit allegation that she was unconscious. But I also don't know, like, that also may not be the case.

0:31:34 Thomas: What may not be the case?

0:31:35 Liz: Not, I mean, she doesn't remember a lot of what happened, right?

0:31:37 Thomas: Yeah. You know, I noted that and I actually think the way the complaint was written, I think she does remember because there's not much in the complaint, but in what we have of her allegations, to like the initial investigation, I don't think it's supportable to say that she was like unconscious for any of it, because I think she remembers stop. Like she, she went to bed and like, you know what I mean? Like, cause I noted that too. I how was like, would she know if anything additional had happened or not? And I really think, I feel like she would have made that allegation if she could have, or at least left it open. Don't you think?

0:31:51 Liz: Yeah, fair. But what I would say, in contrast, is there was an ABC News report that seemed to have gotten a copy of the transcript of the interview. And to according that ABC News report, they said, she said in the transcript that she She didn't remember the end of the night in quotes, where I was raped and didn't know how many people had sex with her.

0:32:17 Thomas: Hmm. Hmm.

0:32:29 Liz: So, I mean, didn't remember is different from losing consciousness. Um, is of, I mean, the issue is physical helplessness. It has to be, you have to be unconscious. I mean, and there's a lot of justifiable critique of this. Like if you are like really sloppy, but like conscious or, you know, that doesn't count. Right. So, again, I don't know. Just understand that if all seven individuals had been charged, maybe someone would have cooperated and they would have had some things to say.

0:32:30 Lydia: I mean,

0:32:54 Liz: And I'm just saying that things come from, I don't want to encourage unnecessary criminal charges, but things come from charging people criminally, right? Like cooperation, other information. People are throwing other people in the bus. I didn't do this, but he did this. I mean, you can get a little more information here. And maybe phone records could have said something. I don't know.

0:32:52 Thomas: Right. Yeah. Good point. Good point. Yeah. Right.

0:33:12 Thomas: Yeah, absolutely.

0:33:13 Lydia: Crazy to think though that like you could be like don't even bring other drugs into it, but like you could be like blackout drunk, you're still technically conscious, and you'll have no memory at all of anything that's happened like that doesn't count because you're conscious, okay.

0:33:24 Liz: But Yeah. Yeah. I think exactly. And I completely agree. And we'll talk actually about that because that dovetails with second degree rape too. But I agree. And it's also crazy that you could be coming in and out of consciousness. And as long as you're conscious for like the sex, but then when you're out of conscious for, right. And then you fall out of conscious and maybe it stops, you know, like that's crazy. Um, but that is the law. So, that's physical helplessness under first degree. The other thing is forcible compulsion. New York law, a wide variety of conduct can establish the use of forcible compulsion by physical force to accomplish rape. And so it could be that someone was hitting somebody, striking them, punching them, choking them, forcibly grabbing, overpowering, restraining, evidence of bruises can support a finding that physical force was used. Also, know, an encounter that starts as consensual can involve, evolve into one that involves forcible compulsion, right?

0:33:35 Lydia: Yeah. Yeah. Part of it Wow. Yeah, exactly.

0:34:25 Thomas: Absolutely.

0:34:25 Liz: Like that's, that's always the case. And so I again, I feel a little like I'm not doing proper work by analyzing like the limited information we have, but there were certainly indications of know, of her, apparently there was some point where she's swatting someone away, you. I think it would be hard to prove forcible compulsion, but again, we just, there's a lot we don't know here.

0:34:26 Thomas: Yeah. Yeah.

0:34:45 Liz: And You I think it could reasonably be charged. Um, maybe as to the end of the night, when, if she's saying that, um, she pushes, tries to push them away and they come back onto her that's, that you know, she's covered in bruises, she's being hit. I don't know. Seems like that's certainly, again, a chargeable offense. That doesn't mean proof beyond a reasonable doubt at a trial. But I think that that's one of the things that I find to be odd is that a lot of the analysis that's so negative on this case is coming from these backseat drivers as though it's a trial, right? We're not at trial yet. Is there enough to charge these people? I think certainly, right?

0:34:45 Thomas: Yeah. Yeah. Forget that too. Was there enough to even do a proper fucking investigation?

0:35:24 Lydia: Another question You know, like One more One More Question

0:35:26 Thomas: Yeah, totally. No, I think

0:35:25 Liz: Yeah, Yeah, exactly. Certainly to ask way more questions and figure out a little better about what we should actually charge these people.

0:35:28 Thomas: That's, Get some documents, get some cell phone records or something. Yeah. That, is so bad too, because it just, like you said a second ago, I mean, it's gone. Yeah. It's gotta be pretty much gone.

0:35:37 Liz: And It's all lost now. Yeah, facilitated you the destruction of evidence, essentially, DA's office. Great job there.

0:35:47 Thomas: Yeah, man.

0:35:47 Liz: All right, rape in the second degree under New York law. The relevant provision of this is a person shall be guilty of rape in the second degree or she engages in vaginal, oral, or anal sexual contact with a person who is incapable of consent by reason of being mentally disabled, not relevant here, excuse or mentally incapacitated. What does mentally incapacitated mean under New York law? This has gotten, I think deservingly, quite a bit of intention. And I did quite a bit of a write-up on this. So mentally incapacitated means that someone was so impaired, so intoxicated they were unable to consent. But if they have voluntarily consumed the substance.

0:36:33 Liz: It has to be involuntary consumption. I'll actually pull up my definition section so all the nerdy listeners can hear the actual definition.

0:36:40 Thomas: Yeah. We did our non-lawyer attempt at this, uh, so I'm curious to hear from you.

0:36:45 Liz: I mean, So yeah, mentally incapacitated means that a person is rendered temporarily incapable of appraising or controlling his conduct due to the influence of a narcotic or intoxicating substance administered to him without his consent, or to any other act committed upon him without his consent. Interestingly, it could be that another person has drugged you, but then a different person rapes just as you, a little side note. But this, by the way, is the law. I tried to figure out how many states have this as kind of their law. Like it has to be this involuntary, involuntary impairment, like you didn't voluntarily consume the substance. It's like, it seems like roughly half the states in the U.S. are have this. And the other half can be it's you voluntarily did it to yourself, right. Or partially some mix of the two. Right. And, um, this is the original Model Penal Code, uh, variation is that it has to be this involuntary.

0:37:32 Liz: Know, like that someone else drugged you, someone else, it was not without your consent, but that's a law on rape in the second degree. Knowing more information, a rape in the second degree charge would be hard to support, but they should get more information. I also was curious. I mean, I've just seen prosecutors really stretch theories here and there. And I'm curious if like, and I didn't see anything about this, but if you could kind of stretch a theory of it was involuntary because this person was incapable of consenting to doing more ketamine or having more drinks. I was wondering if you could stretch the theory that way. I've seen, and then basically leave it to an appeals court to decide what happened there. But I – I mean, that's an argument.

0:38:15 Lydia: A first cousin once removed kind of thing, like just take it a step further out. Yeah, interesting. Like

0:38:18 Liz: Exactly. Yeah. Consumption of ketamine was without her consent because she was incapable of consenting to it based on her level of intoxication. So, it seems like, you know, just looking at the news on this, that there's some pressure within New York to change the law on this. Certainly Kathy Hochul, I think, indicated she would support it. And that is the more modern progressive trend. And I do think the model penal code, which is quite old, reflects a much older understanding of things. And I think, think that would probably be a good change to New York's law.

0:38:52 Liz: So that's where we find ourselves with rape in the second degree. I don't know if there's much else to kind of, discuss there other than like, I mean, that kind of is what it is. Um, rape in the third degree is sort of interesting. Um, so rape in the third degree as compared to rape in the first degree is the definition of basically rape in the third degree is you know, oral, anal, um, vaginal sexual con, contact without where the lack of consent is by some reason, it's by some factor other than the incapacity to consent. So what rape in the third degree is, it's a really odd, it's honestly, I think, a bit of an odd charge. Sorry,

0:38:52 Thomas: Like

0:39:30 Liz: I shouldn't laugh about this. It's sort of like a catch-all, but it's like everything that isn't rape second degree.

0:39:37 Liz: So, incapacity consent is rape in the second degree, right? So, you lack the capacity based on being drugged or mental capacity or something like that. Rape in the third is there's no consent, I'll just read exactly from the statute. Vaginal sexual contact, also anal and oral, with another person without such person's consent where the lack of consent is by reason of some factor other than incapacity to consent. So this often comes up in cases where there isn't physical force. Um, you're not punching somebody. You're not, uh, I mean, it's hard to say because force is so broad, by the way, it often comes up in kind of cases where someone, know, says that they do not want to have sex. And expressly, you know, does not give their consent, but another person

0:39:30 Thomas: A catch-all sort of

0:40:22 Liz: Them basically. Right. But prosecutors will often charge us where there's like not significant physical force involved. Holding down. Right. Exactly.

0:40:29 Lydia: Holding down kind of thing like Okay.

0:40:32 Liz: I I will just say all the rape three cases I've had are a little unusual, but it comes up oftentimes with people who are familiar with each other or, you know, someone who's like, doesn't want this, but they're trying to be polite so they don't start punching somebody, you know, like that tends to be the kind of world of rape in the third degree.

0:40:50 Thomas: Think that could cover this at least, right?

0:40:52 Liz: The one thing that is helpful to note about rape in the third degree, and I agree, and I think it potentially could, um, once again, we would need to do a little more investigation is so rape in the third degree, again, it can include forcible compulsion, but it can include force. It can include the same, you know, conduct as rape in the first, but also it also includes, as I mentioned, express non-consent. So the, the individual that the victim expressed that they did not want to have sex clearly, and a reasonable person in the defendant's position would have understood that. And I think like, it does seem like there are, you know, certain aspects, even in like the summary of the summary where she says hell no to something or she swats away or I just rape in degree the third certainly could be, I think something that I think would could have potentially been a know, been something that could have been charged here, uh, or certainly something they should have really it's rape in the third degree is a tricky wicket.

0:41:47 Liz: If the attorney had interviewed her, we would have a little more information here. And that's, once again, why it's a really tricky one. It's even hard for me to explain. And it's like, we're having a bunch of peace officers make this determination? Who are HR employees? Okay. So that's the world of rape in the third degree. And then I would just say, this is, it'll too boring get for me to go into it, but there's a whole series of sex abuse charges that which relate to unwanted sexual touching and contact, but oftentimes people are convicted with both as to rape one and sex abuse in the first degree, that sort of thing. And those, again, could be very applicable in this a situation where, you I think there's a lot of references to unwanted touching of her, of her genital areas and things like that.

0:42:35 Liz: And again, it's the same issue, you know, the same sort of kind of questions about what consent is and all of these, right? Like, you don't get around the voluntary, involuntary intoxication by going with one of those. But still, like, this is why you should have had a proper interview of this woman, of this victim, right? Like, an understanding, like, what she remembered. Like, did someone touch her breast? And she said, stop doing that. And they kept touching her breast. That's a sex abuse charge. Like, reading the complaint and reading the summary of the summary, I think that's something that totally plausibly could have happened and seems to have been implied in some of them. Um, and you know, uh, the other thing is also like the, the the, slapping and the bruising and those are assault misdemeanors. Anyway, that's what I have to say.

0:43:16 Thomas: It's and it's so interesting for you because you see so many clients that are on the way other end of this spectrum where they're, they're probably getting the book thrown at them and So you're over here like, hey, I know that you have a lot more that you can do, Mr. Prosecutor, like I've seen it, you know, like I know there's plenty more you could have tried to do.

0:43:26 Liz: Yes.

0:43:36 Liz: That's, that's exactly why you hear my, my tone of exasperation is that like, I think of my clients who I've had, you know, I've had clients who are charged with rape and it's life ruinous to be charged with rape. Let me just be clear. But, you know, I'm thinking of one person in particular, and I'm just going to keep it at a high level, but this case was dismissed and there was really no, it didn't happen. Right. And I, fully believe this person who had been innocent. And it's like, my clients get no consideration at all as to like the circumstances of their life. And, and like, charge, you know, they you get charged, the prosecutor does the investigation and yes, you know, I'm really glad that they came to right outcome and they they dismiss the charges. Okay. But it's like these, these these, Cornell kids, I just, I cannot believe that this DA's office, this district attorney's office, just like they couldn't interview. They couldn't, what, what, what are they so busy doing?

0:43:39 Thomas: Yeah.

0:44:25 Lydia: Couldn't

0:44:25 Liz: What are they so busy doing in Ithaca, New York? Okay. Not exactly a place known for like gang violence, other violent crime, even like, you know, big, you know, fraud. Like what are they doing that that they couldn't bothered to, interview to this woman who got a rape kit, believed that she was raped. And, you know, in her, apparently in the, the kind of statement that again, the hundred page statement that she, like the transcript of her statement that ABC news got said, and I quote, I can say with a hundred percent confidence, I was raped. What are you doing that you didn't have time to, you were just gonna, you sent her a note.

0:45:00 Lydia: Even put an hour meeting on the books, like just to chat with her. Yeah.

0:45:02 Liz: Yeah. But hey, if you you want to have a meeting with us, we can pencil you in.

0:45:08 Thomas: It really feels like they just put her in a category, you know, or just put this whole thing in a category of like, ah, well, it was, you know, drunken drug-fueled, uh, group sex like well yeah whatever you I mean, you could be literally in the middle of a gang bang and get raped by somebody. Like that. It's like, that's how consent works. But I don't think, I feel like these male police officers possibly, I don't really think they think that or something, or I don't think they're going to like go too far out of their way to try to consider what that might be, you know?

0:45:13 Liz: Yeah. I

0:45:18 Lydia: Party yep yep

0:45:39 Liz: Think that's exactly right.

0:45:41 Thomas: Otherwise it just makes, yeah, it really makes no sense.

0:45:43 Liz: They just have this very square box of what rape is and what rape isn't. And they again, like I think there are potentially some problems with New York laws, but there's still there a lot of space in what seems to be be alleged here to constitute criminal acts. And no one did that work. This woman's case has been thrown into the spotlight. The criminal case is compromised because as we keep saying, two years later, text messages, people's memories, everything. I mean, people's memories were already potentially not so good, but now they're real bad. So

0:45:46 Thomas: Yeah. Yeah

0:45:58 Lydia: Yeah

0:46:12 Thomas: Think we can just hope that maybe the Title Nine investigation preserved, like, definitely not that level of stuff that should have been, but there's... there's a lot there, and, uh, it's going to be interesting to see how, what Letitia James does with it.

0:46:18 Lydia: Hopefully hopefully

0:46:18 Liz: That's true. Yeah, I think to see, I mean, I think it's gonna be interesting to see what happens here in terms of potential changes to New York's laws, but I also hope, you know, the laws of other states. I, I just think I do think the voluntary versus involuntary like intoxication is so it's so outdated. Um, if someone's voluntarily intoxicated, like, I, like, I can just go to a bar and find the drunkest person there and then buy them and then like buy buy them more drinks. Exactly.

0:46:42 Thomas: Yeah. Right.

0:46:55 Liz: Buy them more drinks that they, they drink by choice. And then like, no matter what sex happens, that's okay. Like, I don't know. That seems bad.

0:46:53 Lydia: Them out back well don't even have to buy them more drinks, you could just walk in, find the drunkest person, and then take them out back.

0:47:04 Liz: Yeah, exactly. Exactly. You just, just find the drunkest person.

0:47:06 Thomas: Well, yeah. I mean, again, assuming they're not saying no, cause that would be covered. I want to be, I want to get the accurate lawyer view on that because I was trying to figure out like what the gap is, cause like no matter what, intoxicated or not, theoretically, again, in practice might be a different thing, but in theory it's a crime. It's rape. If she expressed like, no, don't do this, right like no matter what

0:47:08 Liz: Yeah. Assuming they're not saying that. Yeah.

0:47:27 Liz: Yeah. Yeah. Exactly. Exactly. That's a hundred percent rape three, right? A hundred percent rape three. And also if you can make the argument that this person was for, forcibly compelled, right? Like it was physical force. And and there's actually an interesting New York case that's, you know, deals with this. Like even if it's physical force, but someone doesn't expressly say, I don't want this. They're like, no, that can still be rape, right? Someone could be punching you and shoving themselves inside you. And you don't explicitly say, I don't want this. And No, that can still be rape one forcible compulsion. Absolutely.

0:47:58 Lydia: Absolutely oh

0:47:37 Thomas: Right yeah of course and it seems like by her allegations it seems like that would fit. It just seems like prosecutor the or whoever just decided that didn't happen or something, right? Yeah.

0:48:05 Liz: Yeah. I mean, I don't know. I had like a very frustrating week at work, just as I often do, because there are some very annoying things that have happened in the courthouse and 100 Center Street. But no, truly the most frustrating thing I encountered was the district attorney from Tompkins County's defensive statement as to why he chose not to prosecute this. It was pathetic. Like, this is an elected individual that's charged with, like, protecting public safety.

0:48:32 Thomas: Man.

0:48:38 Liz: Unbelievable.

0:48:47 Thomas: So a little bit of time left, I know it's kind of fresh, so I'm not sure how much time you had to look at it, but you mentioned you might have something to say about attempt by that one guy to get Letitia James off the case.

0:48:58 Lydia: Yeah. Yeah. Yeah. What are your thoughts there?

0:48:59 Liz: – mean, so – I'm thinking about this argument that the attorney for one of the Cornell 7 here, you know, sort of trying to get the AG removed as a special investigator owing to bias, I want to be clear, like, this is as much now a legal case as it is a case in the media, and I guess the allegation is she had, you know, demonstrated some sort of, you know, bias or presumption of guilt on the basis of a media post, so on, so on. I mean, I think that, like, prosecutors always do that, right? Like, I'm just like, what do you mean? I just, I don't know. I mean, it's not clear to me that there's much of a, of a basis here. I guess the alleged social media post is, you know, James says on social media that, you know, what this young woman has been forced to endure is horrific and unacceptable. I'm holding her in my heart and prayers to her and all survivors. You're not not alone. We stand with you.

0:49:31 Thomas: Yeah.

0:49:52 Thomas: They always say that about victims of stuff, right? I mean, like what?

0:49:55 Lydia: Yeah. That was also in advance

0:49:55 Liz: Yeah.

0:49:57 Thomas: What?

0:49:57 Lydia: Of her being appointed. You what I? Like, like had she said that? Yeah. Yeah.

0:49:58 Liz: Yeah.

0:49:59 Thomas: You mean before? Right.

0:50:01 Lydia: So she posted that September 28th and then October 1st was when she was appointed special prosecutor. And, and I would assume that, you okay, now I have a different hat on and I need to pursue this without bias and stuff. But when you're not in that capacity, like, why wouldn't you be allowed to say something like that?

0:50:06 Liz: Yeah. Exactly. Yeah.

0:50:13 Thomas: Well, I don't. She still should be able to say it like prosecutors do that all the time. I mean, like think of all the prosecutors that are like, it's time to put an end to the mafia in this town, you know, or whatever. Can they be like, whoa, whoa, whoa. That's not fair. You can't.

0:50:20 Liz: Yeah. Yeah. Exactly.

0:50:27 Lydia: Yeah, have a bias against the mafia?

0:50:33 Thomas: Yeah. Wow. Wow. Wow. We're getting you off this case.

0:50:34 Lydia: Yeah.

0:50:38 Liz: Doesn't exactly everything both of you said. And like the post doesn't even demonstrate a legal conclusion. Like I think we can all agree what she's been forced to endure is horrific and unacceptable. Like, matter what, no like what she was forced to endure.

0:50:47 Thomas: Yeah. That's probably a pretty careful statement right there.

0:50:51 Liz: Yeah. Holding her in my heart and in my prayers to her and all survivors, you're not alone.

0:50:55 Thomas: That's nothing. That's literally a lawyered statement to make sure she's not saying anything like, yeah.

0:51:01 Liz: Mm hmm.

0:51:01 Lydia: It continued on to, and for each of those men, that obviously did, this, I hope you burn in hell for the crimes that you've committed you know what I mean like that would be definitely different but that didn't happen

0:51:05 Liz: Mm hmm. Right. Exactly. Exactly.

0:51:04 Thomas: Yeah. Your days are numbered. List them by name. Yeah. Yeah. That seems like a terrible case.

0:51:14 Liz: No, it isn't. So I just I think that's kind of ridiculous. I think this is sort of a media war. I did not read or look at any seriously right right wing news coverage of this. So I don't know what extent it's taking a right versus left wing. You know, I just I had to preserve my mental health a little bit.

0:51:16 Thomas: Yeah. Yeah. Oh, boy. Yeah. Good. Don't do it. Oh, yeah. 100%. Yeah. Yeah.

0:51:30 Liz: That being said, like, I just think it's like, you now that's like a talking point, probably on certain angles of me. Oh, it's this left, left wing Tish James, you know, prosecuted by Donald Trump. Like, it's just, it's all, it's all taking shape as a war in the media. And I just, I don't know. I think that's, it seems like a bit of a silly thing to file. I wouldn't say it's, it's frivolous as a legal matter, which is a thing. But, you know, you also, you often see these sorts of things where, I think, we've, we saw some version of a motion like this with Luigi Mangione complaining about the statements that were made by the prosecution. You know, oh, the prosecution is engaging in, you know, biasing the, you, potential jury pool, biasing this. Those types of motions really don't win very often, or it's all kind of part of the show.

0:51:25 Lydia: So Bad Yeah, Yeah,

0:51:39 Thomas: Hmm. Yeah,

0:52:16 Lydia: It's interesting that he and his legal team have decided to kind of pursue that avenue specifically

0:52:22 Thomas: Think Liz is right. It seems like PR probably. Right.

0:52:23 Lydia: Yeah. I, I don't know, like, why are you even, like, getting involved in saying anything at this point? Like, I mean, his, his, you know, situation with what, what he experienced was, that he wasn't found, I think, I mean, I don't think he was found responsible for sexual assault, he was, was only suspended for three semesters, like he was allowed to return to campus and finish yeah yeah this particular student, um, defendant, right?

0:52:40 Liz: Yeah. Mm-hmm.

0:52:45 Lydia: So, so that's kind of why I'm like why bother like

0:52:42 Thomas: Oh, that particular. Really? Oh, wow. Oh, geez. I think I just assumed it was one of the ones that was found.

0:52:49 Lydia: Why yeah Why are you bothering to try and, like, I don't know, I, I feel like if you stayed quiet, like, that's probably a better position at this point at least

0:52:52 Thomas: Huh? It's interesting. That's interesting. Interesting.

0:52:58 Liz: I agree. It was a little too early to be filing that. I feel like I would have, if I were a defense attorney, I kind of would have filed that with like, you first she she made the social media posts. Then she made the statement at a press conference. You know, I would really kind of like try to have a little more going for me, but I would be staying quiet right now. I think that's the best move.

0:53:00 Lydia: Yeah.

0:53:14 Thomas: I wonder, this is pure speculation, but I would read that maybe as like a little bit of worry, like, okay, maybe he, maybe the extent of his culpability was not touched by the title nine thing. And so he's kind of happy where he is right now and doesn't want anything to change.

0:53:27 Lydia: Be Yeah, wants to shut it down as much as you can, yeah.

0:53:33 Thomas: Yeah.

0:53:34 Liz: Maybe.

0:53:34 Lydia: Please

0:53:35 Liz: I mean, I could also just read it as a little like, I don't know. Sometimes people are, sometimes I sometimes have clients who really want me to do certain things. I'm like, no, this is not the time for me to do something. Trust me. Just let's, let's be chill. And they're like, no, you need to put on the record this, this, and this. And I want you to file this one. I'm like, no, like there are real strategic reasons to not please us to me.

But like, you know, what's good is that like, um, as a non-hired attorney, I can kind of, there, there are certain things my client is absolutely in control of in this case, guilty plea, not guilty plea, going to trial, whether or not he testifies. But there's some things where if like my client wants me to file something that is totally ridiculous or, or in my view, bad strategy, I can say as a public defender, I'm like, I'm not going to do that. Right? Whereas if you're a paid attorney, going back to my paid practice, if your client really wants you to do something and they're paying you money to do it, like,

0:53:42 Thomas: Yeah. Yeah. Yeah.

0:53:52 Lydia: Listen to me. Oh, yeah.

0:54:22 Liz: You do it. So I don't know if maybe also the client was just really agitated about this and was like, I want you to do something I want you to like, and he's like, I don't know, should I do like a bias thing? He's like, all right, yeah, let's file that. I don't know. I mean, I think we're all spitballing, but the point is like, there's some real questions here.

0:54:34 Thomas: Yeah. Yeah. It just really, I didn't realize it was one of the ones that hadn't been found, you know, fully responsible, because that, that does change it in my mind. It's it's a very weird thing to do. Huh. Interesting to keep an eye on that. Well, uh, let's see, we blew right through the time we had. Uh, that was really compelling. Is there anything else you want to make sure that we know about this, of course.

0:54:44 Liz: Yeah.

0:55:01 Liz: Not at this juncture, but I'd obviously love to come back on and to update more Now that everyone is so well-educated on these issues and has heard my rant and everyone else's rant as to the things that went wrong here.

0:55:15 Thomas: Uh, Liz Skeen, thank you so much, we really appreciate your time. Bye-bye.

0:55:19 Liz: Yeah. Thank you. Yeah. Thank you. Yeah.

0:55:20 Lydia: You're the best.