Evidence 'hoax' means Patrick Kane less likely to be charged

1:39 | NHL
Patrick Kane close to being in the clear
Friday September 25th, 2015

The rape kit bag that led to allegations of evidence tampering in the Patrick Kane rape investigation was denounced on Friday by Erie County District Attorney Frank Sedita as an “elaborate hoax” staged by the accuser’s mother.

Sedita’s revelation was the latest bizarre development in an investigation that now seems less likely than ever to result in the Chicago Blackhawks superstar being charged with any crime.

Sedita said that the bag—which had been identified by the lawyer for Kane’s accuser as proof that key evidence had been tampered with—had actually been given to the accuser’s mother when she accompanied her daughter to the hospital to have a rape test performed. She was the last known person to have the bag, he said, and it was used to store one of her daughter’s garments and not the contents of a rape test kit.

He then showed video to prove that no bag had ever been used to store the kit and to verify that the chain of custody for the evidence has always been secure.

SI.com: Based on what we heard on Friday morning from Sedita, how have the twists and turns of the past 48 hours impacted this case?

Michael McCann: The bizarre events of the last 48 hours have dramatically impacted the investigation into rape accusation against Kane. It is now less likely that Kane will be charged with a crime and, if charged, less likely that he will be convicted.

As Sedita acknowledged during his press conference this morning, it is now much more difficult to move forward in the investigation. According to Sedita, the mother of Kane’s accuser engineered a hoax that all but destroys the mother’s credibility and—fairly or not—could raise questions about the complainant’s own credibility. Sedita will now attempt to determine if the complainant had any involvement with, or knowledge of, the hoax. If the complainant played any role, Sedita would almost surely drop the case and do so in a swift and decisive manner.

SI.com: Given the tenor of the district attorney, do you believe that the investigation will proceed to the grand jury stage?

McCann: There remains a chance that a grand jury will be convened, but the odds of that occurring are plummeting. Sedita has two choices: administratively closing the investigation (which would effectively end the criminal inquiry) or convening a grand jury. In his press conference, Sedita noticeably stressed that the question is not “when” a grand jury will be convened but “if.” This was an important distinction.

Sedita knows that a grand jury proceeding could take months and that under New York law, an indictment of Kane would require 12 of the 23 grand jurors to find probable cause that Kane committed rape or committed the lesser charge of sexual misconduct. Grand jurors would surely be less willing to return a true bill (indict) Kane if they conclude that an alleged hoax perpetrated by the complainant’s mother reflects in some way on the believability of the complainant herself.

This same dynamic would be true if Kane is indicted and goes to trial: His lawyer, Paul Cambria, would ridicule the case against his client as born from a circus atmosphere and not from authenticated testimony. Keep in mind, it is often very difficult to convince a jury that a defendant is guilty beyond a reasonable doubt. In a trial, Cambria would essentially tell jurors, “Can you honestly believe these accusations against Mr. Kane given what you know about the fake bag of evidence?”

That kind of question alone could be enough to secure a not guilty verdict or a hung jury.

SI.com: Even if charges aren't filed, that wouldn't necessarily mark the end of this. How would the involvement of the complainant's mother in an apparent hoax impact the complainant's ability to pursue Kane civilly?

Kane accuser dropped by attorney in latest strange twist in investigation

McCann: Kane is now in a better legal position to withstand a potential civil lawsuit brought by the complainant. If the complainant sues Kane, she would most likely plead claims sounding in battery, false imprisonment and intentional infliction of emotional distress. Collectively, these claims would assert that it is more probable than not (the civil lawsuit standard) that Kane engaged in a sexual act with the complainant without her consent and, in doing so, placed the complainant in fear of harm and caused her serious mental suffering. If evidence surfaces that the complainant played any role in the alleged hoax, Kane would be better positioned to effectively raise doubts about the complainant’s credibility. Also, the complainant may be less interested in suing Kane if the threat of pretrial discovery (where each side exchanges testimony and evidence) could reflect poorly on her or her mother.

In my opinion, the most likely outcome is that Kane and the complainant will eventually reach a confidential out-of-court settlement on potential civil claims and avoid going to a civil trial.

SI.com: Might Kane be able to use information about the apparent hoax to sue the complainant for defamation of character?

McCann: Kane could use the apparent hoax to bring a defamation lawsuit, but it’s unclear at this stage if he could successfully sue the complainant in such a lawsuit. We know that the complainant’s former attorney, Thomas Eoannou, made damaging public statements about the evidence bag after he claimed the bag would help to prove Kane’s guilt. We also know the complainant’s mother is accused of telling Eoannou the bag once held her daughter’s rape test kit. Kane thus could sue Eoannou and the mother for defamation. It is unknown at this point, however, whether the complainant herself played a role in the apparent hoax or made statements about the evidence bag.

As a public figure, Kane would need to prove “actual malice” in order to prevail in a defamation lawsuit. Consequently, Kane would have to demonstrate that not only were untrue and damaging statements made about him, but that those who made the statements knew or should have known the statements were untrue. Actual malice would be a significant hurdle for Kane should he sue Eoannou, who could insist that he had only relied on what the complainant’s mother had told him.

Kane might reason that filing a lawsuit would be a poor use of his time and energy. Even if he could prove that he has been defamed, the potential defendants may not have significant money to pay him. Kane would also have to spend significant time meeting with attorneys and traveling to New York in order to pursue a defamation case. Further, Kane might be required to share personal information about his sex life and other topics that he would prefer to keep confidential.

SI.com: District Attorney Sedita’s stated intention for this press conference was to restore the public’s confidence in the integrity of the criminal justice system after “the dog and pony show” of the past two days. Did he accomplish that goal?

McCann: I think Sedita likely restored the public’s confidence in the chain of custody and integrity of evidence in the Kane investigation. Sedita adroitly used video and photographic evidence to assure the public that no evidence was lost or tampered with. From that perspective, he was successful in his press conference.

Report: DNA evidence could help Patrick Kane in rape case

But in other aspects, I don’t believe the public is going to feel more confident about the criminal justice system after hearing from Sedita. First, the public learned that family members of accusers can allegedly perpetrate damaging hoaxes and that those hoaxes can hinder the ability of a prosecutor to bring charges. The public might also now more aggressively question how attorneys conduct themselves in celebrity cases. Along those lines, the public might wonder about the judgment of Eoannou to hold a press conference about the evidence bag and to make serious allegations based on that bag before confirming the authenticity of that bag.

Lastly, I suspect the public will be frustrated by Sedita saying that the complainant’s mother cannot be charged with a crime. Sedita explained that the mother’s alleged lies about the evidence bag did not occur while under oath and that he believes there is no New York criminal statute that will support a charge. The public may wonder why such alleged misconduct would not constitute the crime of obstruction of justice—which under New York law refers to a willful attempt to frustrate the administration of justice—and Sedita himself said he will be more closely examining New York's laws to be sure that are no grounds for filing a charge.

Michael McCann is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. This fall he is teaching an undergraduate course at UNH titled “Deflategate.” McCann is also the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law and he teaches “Intellectual Property Law in Sports” in the Oregon Law Sports Law Institute.


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