The New York State Attorney General's Office is asking to dismiss a challenge from a defendant in the lawsuit filed by a former Cornell University student who alleges she was sexually assaulted at a fraternity house in 2024. The challenge focuses on Gov. Kathy Hochul's recent special prosecutor appointment.
The former student's lawsuit, which was filed Sept. 14, alleges seven members of the Xi Chapter of the Chi Phi Fraternity sexually assaulted and raped a then 20-year-old woman inside the fraternity house in October 2024. The woman, who is known anonymously as Jane Doe, reported the incident several weeks after it occurred, but no criminal charges were filed.
Tompkins County District Attorney Matthew Van Houten said his office was revisiting
that decision recently. And on Oct. 1, Hochul appointed state Attorney General Letitia James as special prosecutor on the case through an executive order, saying new information raised questions about how the case was handled by law enforcement, prosecutors and the university.
One of the defendants in the case, however, filed an Article 78 petition against Hochul's special prosecutor decision in Albany County Supreme Court on Oct. 7, calling it "improper" as James has "demonstrated a bias and presumption of guilt against the defendants," court records show.
The AG's Office filed a Memorandum of Law in Opposition to, or motion to dismiss, the petition on Thursday, Oct. 22, asserting the claims made by the defendant raise a political question that isn't subject to judicial review and depends too heavily on unproven claims and unknown future events.
Here's the latest.
Why is the Cornell defendant challenging the AG's special prosecutor appointment?
An Article 78 proceeding is used to challenge an action or decision made by a state or local government official or agency. The defendant's concern stems in part, records show, from a social media post made by James on Sept. 28, three days before she was assigned the case. That post links to The New York Times article about the investigation being reopened and says the following:
"What this young woman has been forced to endure is horrific and unacceptable. I'm holding her in my heart and in my prayers. To her, and to all survivors: you're not alone. We stand with you."
The legal challenge asserts the AG's post makes it clear that James has already formed an opinion about the case, believes Jane Doe's allegations and has already reached the conclusion that the defendants are guilty.
Why Letitia James' office wants legal challenge dismissed in Cornell case
According to the Attorney General's Office's filing on Thursday, the petition against both James and Hochul would undermine the legal authority of the governor and attorney general. Specifically, it argues the petition should be dismissed because the petitioner is asking the court to unlawfully void a discretionary action by the governor, limit James' power to decide whether to file criminal charges and violate a collection of laws made by the state Legislature.
State law allows the governor to authorize the attorney general to be named special prosecutor. Through the Article 78 petition, the governor's choice to do so in this case is being questioned. In this capacity, the attorney general also has discretionary powers that are being questioned, according to the recently filed memorandum.
"Petitioner presumes how to predict how the AG may exercise her prosecutorial discretion and, based on his assumptions, asks this court to prohibit her from acting," the memorandum states. "This type of judicial interference would be inappropriate in any prosecution and should not be countenanced here."
Additionally, the state Legislature created a specific process for addressing the disqualification of the attorney general when acting as special prosecutor that's not being followed with the Article 78 proceeding. According to James' office, the process must be initiated by the attorney general before a superior criminal court in a county where the criminal action is triable.
The Attorney General's Office also details that the petitioner's case is not sufficiently developed for a court to decide on it as the alleged harms — that the investigation will be improperly conducted and there will be prejudice against the petitioner in a possible future criminal proceeding — are uncertain and based on speculation.
Andrew Miltenberg, the attorney for Gillio Lopes, the defendant who filed the legal challenge, has not immediately responded to the USA TODAY Network's request for comment.
Why has James been named special prosecutor on the Cornell case?
Van Houten, the Tompkins County district attorney, previously defended his decision to not initially pursue criminal charges, asserting the initial statement Jane Doe provided in 2024 "described her participation in drug use and sexual conduct as voluntary, conscious, and consensual."
Hochul's comments on Oct. 2 alluded to reporting in The New York Times that asserts a Cornell Police Department report provided to Van Houten omitted the woman's claim she was raped.
Addressing the new information, Hochul noted the woman "could not have been clearer that she was 100% confident that she had been raped; yet, shockingly those words never made it into the account that Cornell police sent to prosecutors."
The district attorney "then declined to pursue charges after reviewing that incomplete account," Hochul said, noting the revelations prompted her to tap James to take over the criminal investigation.
Emily Barnes covers state government for the USA TODAY Network-New York with a focus on how policy and laws impact New Yorkers' taxes, communities and jobs. Follow her on Instagram or X @byemilybarnes. Get in touch at ebarnes@usatodayco.com.
This article originally appeared on Rockland/Westchester Journal News: Letitia James seeks dismissal of challenge to Cornell prosecutor role
