Patrick Kane: [Updated] D.A. Decides Not to Prosecute; NHL Determines Claims "Unfounded"

[LGR4GM]

Agree to disagree. There may be a time for spending a ton on a winger but we aren't anywhere near that time.

[MattPie]

Adding one of the best wingers in the league isn't putting a ton of money into wingers again.  It's putting a ton of money into winger.  I agree that the price would be to high, and I agree with others upthread that have stated that his contract doesn't coincide with our window.  But big money on an Ovechkin/P.Kane game breaker is never a bad idea.

 

Doubly so in the Sabres case, as they don't have a stock of high-end RW. I'm still not sure about the trade, but a top-3 RW is going to be an issue in the next few years.

[That Aud Smell]

Since this thread hasn't been filled with hysterical denunciations or ad hominem attacks lately, here's a question to consider:  what if there is an out-of-court settlement in which the accuser, presumably in exchange for a big check, drops the charges and agrees not to discuss the matter, but Chicago decides to trade Kane anyway?  Assuming no verifiable facts emerge about the incident, would you want the Sabres to go after him?

 

Chz's point maybe makes this a non-starter.

 

As I think someone else has noted, the fact that we're Buffalo may make us a worst-case scenario for a trade destination for the guy. I think there's a special level of stupid that guys like P. Kane can only reach in their hometown.

 

But the idea of having a super-duper star winger for one of our young centers? That's tempting stuff.

 

On balance, though: I think his price tag is too steep and his vintage just a bit too mature (even if he as a person is not) for this team's current arc. That new contract is intended for a team that is contending now. The Sabres aren't there yet, and it would not make sense for them to pretend as though they were.

[shrader]

Since this thread hasn't been filled with hysterical denunciations or ad hominem attacks lately, here's a question to consider:  what if there is an out-of-court settlement in which the accuser, presumably in exchange for a big check, drops the charges and agrees not to discuss the matter, but Chicago decides to trade Kane anyway?  Assuming no verifiable facts emerge about the incident, would you want the Sabres to go after him?

 

Slight tangent here, but aren't deals like this technically obstruction of justice?  I realize the circumstances of an agreement like that make it damn near impossible to prove in court, but I wonder if anyone has ever actually tried.

[That Aud Smell]

as they don't have a stock of high-end RW.  . . . a top-3 RW is going to be an issue in the next few years.

 

Yessir. # pominville #stafford

Slight tangent here, but aren't deals like this technically obstruction of justice?  I realize the circumstances of an agreement like that make it damn near impossible to prove in court, but I wonder if anyone has ever actually tried.

 

An interesting thought.

 

A lot would depend on how the relevant crimes are defined and interpreted in NYS. 

 

More importantly, I think, is that no charges have yet been laid. So what would P. Kane be obstructing?

 

A different scenario might present if charges were laid, and a prosecution was underway.

 

In that event, my guess is that there could be an academic argument to be made that, yes, the settlement in some way obstructed justice (or the administration of governmental functions, or witness tampering, or maybe bribery (?)). As a practical matter, though, I don't see any DA going that route. It would be a stretch.

[nfreeman]

Slight tangent here, but aren't deals like this technically obstruction of justice?  I realize the circumstances of an agreement like that make it damn near impossible to prove in court, but I wonder if anyone has ever actually tried.

 

I think this is what happened in the Kobe Bryant case -- i.e. he was being criminally prosecuted, but the accuser dropped the charges as part of a settlement.

[3putt]

Slight tangent here, but aren't deals like this technically obstruction of justice?  I realize the circumstances of an agreement like that make it damn near impossible to prove in court, but I wonder if anyone has ever actually tried.

The DA is a representative of the people.  S/he does not need the permission of a victim to pursue criminal charges.  Any agreement prohibiting a witness to a crime from testifying before a court of competent jurisdiction is unenforceable and void as to that provision.  Withdrawing a complaint does not preclude an indictment or filing charges if enough independent evidence exists to support the charges or indictment.  However, an uncooperative victim or primary witness  could color the decision as to whether a case can be proven beyond a reasonable doubt.  Any settlement would only preclude pursuing civil damages in a civil suit.  

[X. Benedict]

I think this is what happened in the Kobe Bryant case -- i.e. he was being criminally prosecuted, but the accuser dropped the charges as part of a settlement.

I could be wrong, but my understanding was that If there is no complainant, there is no crime to prosecute. In most assault cases the person assaulted is the complainant.  

[tom webster]

I think this is what happened in the Kobe Bryant case -- i.e. he was being criminally prosecuted, but the accuser dropped the charges as part of a settlement.

I'm no attorney but I think they have to walk a fine line with these settlements as it is illegal to pay someone not to press charges or testify but if the victim refuses to testify, how can the case proceed? I heard former DA Frank Clark talking about this. No DA wants to be put in a position of prosecuting a victim for refusing to testify but he implied that theoretically it was possible

[X. Benedict]

I'm no attorney but I think they have to walk a fine line with these settlements as it is illegal to pay someone not to press charges or testify but if the victim refuses to testify, how can the case proceed? I heard former DA Frank Clark talking about this. No DA wants to be put in a position of prosecuting a victim for refusing to testify but he implied that theoretically it was possible

 

Defense attorneys closing argument: "The original complainant has dropped the case, yet the DA continued to prosecute this despite all our great doubts. The defense rests."

[shrader]

I'm no attorney but I think they have to walk a fine line with these settlements as it is illegal to pay someone not to press charges or testify but if the victim refuses to testify, how can the case proceed? I heard former DA Frank Clark talking about this. No DA wants to be put in a position of prosecuting a victim for refusing to testify but he implied that theoretically it was possible

 

I'd love to see how these agreements are worded.  We're paying you, but we won't say what for.  It makes me think of some of those trades for future considerations where nothing actually winds up being moved later.

[3putt]

I could be wrong, but my understanding was that If there is no complainant, there is no crime to prosecute. In most assault cases the person assaulted is the complainant.  

Homicide victims can't file complaints.

[That Aud Smell]

The DA is a representative of the people.  S/he does not need the permission of a victim to pursue criminal charges.  Any agreement prohibiting a witness to a crime from testifying before a court of competent jurisdiction is unenforceable and void as to that provision.  Withdrawing a complaint does not preclude an indictment or filing charges if enough independent evidence exists to support the charges or indictment.  However, an uncooperative victim or primary witness  could color the decision as to whether a case can be proven beyond a reasonable doubt.  Any settlement would only preclude pursuing civil damages in a civil suit.  

 

Good take.

 

Strikes me that sex assault cases are a peculiar and unique area in this realm -- the accuser's testimony is obviously so, so critical (as opposed to a simple assault where another witness could testify that the accused hit the victim).

 

In addition, I realize that a civil settlement does not, as a legal matter, end the criminal investigation, but, as a practical matter, it could (in this case, anyway).

[3putt]

Good take.

 

Strikes me that sex assault cases are a peculiar and unique area in this realm -- the accuser's testimony is obviously so, so critical (as opposed to a simple assault where another witness could testify that the accused hit the victim).

 

In addition, I realize that a civil settlement does not, as a legal matter, end the criminal investigation, but, as a practical matter, it could (in this case, anyway).

An uncooperative victim/witness would doom almost any case, however there are rare exceptions.  

[X. Benedict]

Homicide victims can't file complaints.

 

Ummmm...that would be the coroner, no? 

[That Aud Smell]

I'd love to see how these agreements are worded.  We're paying you, but we won't say what for.  It makes me think of some of those trades for future considerations where nothing actually winds up being moved later.

 

The D.A. could obtain any agreement through subpoena, so I suspect the agreements are largely worded in a typical manner (i.e., they are confined to the release of civil liabilities).

 

One thought just occurred to me, and I'm gonna blurt it out before I reflect on it: Would the prohibitions cited up-thread stop a potential criminal defendant from securing an affidavit from the accuser that would memorialize sworn testimony favourable to the accused? I'm thinking about something that doesn't expose the accuser to a perjury charge (for the sworn statement to police), but sufficiently walks back what was said in the initial complaint such that no D.A. would ever go forward.

[LGR4GM]

Homicide victims can't file complaints.

True but in a homicide we know that something happened.  In assault cases usually the witness or person being assaulted is the strongest proof that something happened.

[3putt]

Depends on the jurisdiction. A DA can file an indictment upon the coroner's determination of death other than by natural causes.

 

True but in a homicide we know that something happened.  In assault cases usually the witness or person being assaulted is the strongest proof that something happened.

The question I was addressing was that criminal charges can be brought in a variety of instances in the absence of a complaint provided there is sufficient evidence of a crime. 

[3putt]

The D.A. could obtain any agreement through subpoena, so I suspect the agreements are largely worded in a typical manner (i.e., they are confined to the release of civil liabilities).

 

One thought just occurred to me, and I'm gonna blurt it out before I reflect on it: Would the prohibitions cited up-thread stop a potential criminal defendant from securing an affidavit from the accuser that would memorialize sworn testimony favourable to the accused? I'm thinking about something that doesn't expose the accuser to a perjury charge (for the sworn statement to police), but sufficiently walks back what was said in the initial complaint such that no D.A. would ever go forward.

I think this is possible but fraught with peril for both sides.  A reluctant witness would be confronted with the exculpatory statements under direct or cross.  That the statement was made for monetary consideration would be more prejudicial to the payor than the recipient. IMHO 

[That Aud Smell]

I think this is possible but fraught with peril for both sides.  A reluctant witness would be confronted with the exculpatory statements under direct or cross.  That the statement was made for monetary consideration would be more prejudicial to the payor than the recipient. IMHO 

 

Good point.

 

Hmmm.

 

But a sh!tstorm and waffling accuser is a near-certain acquittal, yeah?

 

What I'm wondering is this: What documented means does the accused have of ensuring that the accuser will not cooperate with the prosecution?

[3putt]

None.  It is against the law to enter into a contract that may require you to break the law.  Should the accuser be compelled to testify in contravention of the terms of the agreement the contract, i.e. settlement, would be unenforceable. Note, that would apply to any clawback provisions requiring the accuser to repay the original consideration.  The accuser would keep the money.  

[That Aud Smell]

None.  It is against the law to enter into a contract that may require you to break the law.  Should the accuser be compelled to testify in contravention of the terms of the agreement the contract, i.e. settlement, would be unenforceable. Note, that would apply to any clawback provisions requiring the accuser to repay the original consideration.  The accuser would keep the money.  

 

How about having the funds held in escrow?

[3putt]

How about having the funds held in escrow?

I think we are getting way off track. If money is the motivating factor, it would behoove the accuser to assist the prosecution. A criminal conviction requires a higher burden of proof. Once in hand that conviction is admissible as conclusive evidence that the underlying elements of a civil cause of action have occurred. It then becomes simply a case of determining the amount of damages. I see little reason why an accuser would assist in exonerating the accused if money is the motivator.

Edited September 3, 2015 by 3putt

[That Aud Smell]

Excellent stuff.

 

Thanks.

 

I'm aware that accusers not infrequently settle with creditworthy accused persons before sex assault charges are laid. I can think of many reasons why the accuser would want to go that route, not the least of which is a desire to avoid the burden of being involved in a prosecution.

[beerme1]

He's got a no movement clause so I don't see him going anywhere. I wouldn't want him here anyway.

 

 

Chz's point maybe makes this a non-starter.

 

 

I'm looking to see if there's anything new here and have to agree with these comments.