(adapted from the New York Law Journal, April 3rd, 2006)

By John Caher
New York Law Journal
April 3, 2006

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The standard for reopening a criminal case after the close of proof came into play in an unusual Ulster County matter involving an 82-year-old college professor accused of sexually assaulting one of his students.

Late trial revelations that seemingly cast doubt on the credibility of an alleged victim prompted a judge to declare a mistrial, rather than reopen the proof.

Judge Frank J. LaBuda, whose trial decision in another case led to a key Court of Appeals decision on re-openings, said the Court had instructed that a reopening should be permitted only when "the missing element is simple to prove and not seriously contested." That, he said, is hardly the case here.

People v. Thompson, Indictment No. 15-2005, involves allegations against State University at New Paltz Professor Wade Thompson by a now 42-year-old student, and the scholar's contention that any rough sex that occurred between them was entirely consensual.

Mr. Thompson was charged with first-degree sexual abuse, second-degree assault and forcible touching. The student accused him of spanking her with a belt and buckle.

The trial got under way last week before Judge LaBuda, a Sullivan County judge who was sitting in Ulster County.

Records show that on the eve of trial the defense was provided with Rosario material, or prior recorded information of prosecution witnesses (see People v Rosario, 9 NY2d 286 [1961]). The next day, attorneys delivered their opening statements and the prosecution presented a large part of its case.

However, the Rosario material — specifically, the alleged victim's grand jury testimony — raised defense concerns and prompted an investigation by attorneys Benjamin Ostrer and Michael Mazzariello of Chester, N.Y., who represent the professor.

That investigation revealed significant discrepancies between what the alleged victim had testified to about a prior sexual assault complaint she had lodged against a different man and what she told the grand jury about the 2002 incident, Mr. Ostrer said.

In addition, newspaper accounts of the trial resulted in other witnesses coming forward with evidence casting doubt on the alleged victim's credibility, he said.

Among the allegations uncovered during the Thompson trial were claims that the woman had forged medical reports, made a false claim of pregnancy and accused a one-time fiance of hiring someone to sexually assault her in 2002. Also, one witness brought forth a tape recording in which the woman, immediately after Mr. Thompson's arrest, said the professor loved her and did not intend to hurt her.

Just prior to the jury charge, the defense asked to reopen the proof. Judge LaBuda denied that motion but reserved decision on an alternative motion for a mistrial.

While the jury was deliberating, the prosecutor advised the court that it would not oppose a mistrial, and the judge granted one.

'Abundant Discretion'

On the reopening motion, Judge LaBuda referred back to People v. Whipple, 97 NY2d 1, a 2001 case that originated in his court.

In Whipple, Judge LaBuda had permitted the prosecution to reopen its case after it had forgotten to include evidence of a technically necessary element of the charged crime. He was reversed by the Appellate Division, Third Department, but vindicated in a unanimous Court of Appeals opinion by Chief Judge Judith S. Kaye.

Chief Judge Kaye said courts have "abundant discretion" to deny a leave to reopen, "even to defendants." She said that in the "narrow circumstances" of the Whipple case, where "the missing element is simple to prove and not seriously contested, and reopening the case does not unduly prejudice the defense, a court may, in its discretion, grant a motion to reopen."

In Thompson, Judge LaBuda found, contrary to the claims of the defense, that the issues that had arisen were neither "simple to prove" nor uncontested. He also said that much of the information could have and should have been uncovered earlier.

"The fact of whether her testimony of the description of the alleged attacker varied between the grand jury testimony and her trial testimony does not make the alleged prior assault new evidence to the defense," wrote Judge LaBuda. "As such, defense investigation should have elicited the facts which they could have used in their defense prior to resting and all parties completing summations."

Judge LaBuda said that in order to pursue a new or expanded defense theory, it would be necessary to summon several police witnesses from several departments and citizen tipsters, produce tape recordings and establish proper foundations and authentications.

Mr. Ostrer said in an interview that he thought reopening would be a less inconvenient and more efficient means of addressing the apparent credibility issues of the star witness than a mistrial. But the prosecutor opposed reopening because more time was needed to investigate, according to the district attorney.

Ulster County District Attorney Donald Williams said the prosecution agreed to the mistrial because "information was brought to our attention that came from credible sources that may have indicated a verdict of guilty would be unjust." He said the prosecution was unwilling to agree to reopen the proof because of the need to thoroughly investigate.

Mr. Williams said the New Paltz police are conducting that investigation, adding that no decision has been reached on whether to retry Mr. Thompson.

Mr. Ostrer commended the district attorney for not opposing the mistrial motion while the jury was deliberating.

"A lot of prosecutors would have said, 'Let's see what the jury does,'" Mr. Ostrer said. "They absolutely did the right thing here, and I applaud them for that."

— John Caher

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