Tuesday, April 13, 2010


NYLJ 06-06-2007


4. The toll of the bell is the metaphor most oft employed in lawsuits and criminal acts, best known for the Statute of Limitations. In reality, the more apt phrase that pays is “the clock is running” or “the clock stopped”. In medical malpractice, you have 2 ½ years to start your action with the filing of a complaint. If you miss that, forget it. When that airport metal detector finds the forceps in your peritoneum, its too late.

When you get into other situations, the “he said/she said” or, as in this case, “he said he did”, the whole circumstance begins to become nebulous. And when the supporting evidence is just as amorphous, it gets downright murky. Add in children’s testimony and it quickly becomes a “whaaa?”

Perhaps Mr. Sodom should not be as civic-spirited as he is, being the upright pillar of the community you’d expect from a funeral director and a scoutmaster, even taking foster children and runaways, bringing them into the bosom of his family, his wife and own spawn joining together to create a home for the weak and innocent. As it was, the boy who boarded with him, wife and kids from 12/02 to 7/03 was 16, then 17, but it was 5/04 2when the 18-yr-old reported the touching incidents to the police. In response to the information brief and charge, the Scoutmaster argued that the time frame was so long that building an adequate defense would be unfairly difficult.

This seemed to have no impact on the jury which convicted him and sentenced him to one year in jail. However, the Record On Appeal was enough for a stay. The CoA justice found no reasonable, distinct length of time when prosecutors are alleging a non-continuous act in an accusatory instrument. Which means less “What did he know and when did he know it” and more “What could be proven about when and where”. Even the victim could not offer a specific date. Mr. Sodom tried to reconstruct events during the time frame and came up with communications, witnesses, even video tapes, as the teen had claimed an occurrence during a play-wrestling bout. As one would suspect, the ambiguity of viewing such material is paramount to prove that an activity took place is not the same thing as having a smoking gun. What may appear as innocent horseplay to one side, can be said to be a cunning ruse to be stimulated by physical conduct, by the other.

In any event, whatever persuaded the jury to a guilty verdict was not an influence upon the robes at the top. After looking at two cases—one where a conviction was overturned at a nine-month gap, and at another where the verdict was sustained at a five-month gap—the opinion was that the evidence, and first-person testimony, was not enough to sustain the decision of the jury, given the time factor as well. But, in reversal, it was also the point at which they refused to draw a “bright line”—meaning to delineate a standard by which a precedent could be set for all such cases to follow.

Which doesn’t mean that they won’t fry the next guy either.

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