A defendant in the lawsuit filed by a former Cornell University student who alleges she was sexually assaulted at a fraternity house in 2024 is legally challenging New York Gov. Kathy Hochul's recent special prosecutor appointment.
The related 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 New York 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 filed an Article 78 petition against Hochul's special prosecutor decision in Albany County Supreme Court on Wednesday, Oct. 7, calling it "improper" as James has "demonstrated a bias and presumption of guilt against the defendants," court records show. 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.
What Cornell defendant's attorney says about challenge to AG James appointment
In a statement provided to the USA TODAY Network on Thursday, Andrew Miltenberg, the attorney for Gillio Lopes, the defendant who filed the legal challenge, said James should recuse herself from the investigation.
"There is nothing wrong with compassion for someone alleging sexual assault," Miltenberg said. "These are extraordinarily serious allegations and they deserve a thorough and respectful investigation. But there is an important difference between expressing support for an alleged victim and then becoming the prosecutor charged with independently determining whether the evidence establishes that the alleged conduct occurred and whether criminal charges are warranted."
Miltenberg asserted that James' previous statements could "reasonably be understood as expressing a view about the underlying events before she assumed that responsibility," adding that "once that has occurred, an avoidable question hangs over the process."
"We are not asking that the investigation be stopped, limited or delayed," Miltenberg said. "We welcome a complete investigation. Jane Doe is entitled to have her allegations investigated seriously, thoroughly and respectfully. Mr. Lopes is equally entitled to have the evidence concerning him evaluated individually, fairly and with an open mind."
How Hochul, James are responding to the petition
Hochul and James, both Democrats, fielded a question about the attorney general's social media post during a news conference about the appointment on Oct. 2.
At the time, James said she wouldn't be commenting on a Facebook post, and Hochul defended her decision.
"I have every confidence in our attorney general to do so as she has always done: look at the facts, examine the record and draw the proper conclusions," the governor said. "That's exactly what's going to happen in this case."
2024 gang rape allegations a fraternity house, calling it "deeply flawed." id="92057632007">
Hochul's office referred back to that response when asked about the recently filed petition on Thursday. The AG's Office declined to comment on the Article 78 filing.
Why has AG James been named special prosecutor on the Cornell case?
Van Houten 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 in part 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.
In a statement on Oct. 2, Van Houten voiced his support of Hochul's actions. "I trust that [James] will examine the facts and apply the law," he said, before adding, "It has become clear that we were not provided the full picture by the University. The focus has been and should continue to be on the victims."
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 Rochester Democrat and Chronicle: Cornell defendant files challenge to AG James as special prosecutor
