6 January 2022: Tough Case or ‘Cowardice’? Drop of Cuomo Case Splits Experts on Albany County DA David Soares

Tough case or ‘cowardice’? Drop of Cuomo case splits experts

This report covers the reaction of several lawyers to Albany County District Attorney David Soares' strange choice to not pursue criminal misdemeanor forcible touching charges against Andrew M. Cuomo when he finds the victim to be both "cooperative and credible" in his own words.

New York’s attorney general said she believed Brittany Commisso. The sheriff who filed a criminal complaint accusing former Gov. Andrew Cuomo of groping Commisso in the governor’s mansion called it a “very solid case.” The district attorney called her credible — but said he wouldn’t pursue the case because he couldn’t prove it.

To some legal experts and women’s advocates, Albany County District Attorney David Soares’ decision this week points to the difficulties of prosecuting sex crime allegations. But to others, it’s confounding.

“If you have a credible witness who comes to you, you believe her, she’s cooperative, is that not enough?” said Matthew Galluzzo, a New York City criminal defense lawyer and sex crimes prosecutor. “This is tremendous prosecutorial cowardice.”

Ouch. The report presents additional critical assessments from other attorneys:

Bennett Gershman, a Pace University law professor and former state prosecutor, said he saw the case as “not a slam-dunk.” District attorneys are obligated to focus on how the case will play out before a jury, including a defense attorney’s cross-examination of the accuser, he said.

“It’s very, very difficult to go ahead with a prosecution where you’re really not sure you’ve got the goods,” he said.

But some other attorneys took aim at the logic of saying an accuser is credible but there’s not enough proof to win at trial.

“Ridiculous,” said Bruce Barket, a veteran defense lawyer on Long Island.

“I get that these cases are difficult and complicated, but this one was crisp and clear if you believe the complainant, which everyone who interviewed her said they did,” Barket said.

Carrie Goldberg, a New York City attorney who represents sexual assault and abuse victims, noted that an accuser’s sworn testimony is legally a form of proof.

“Prosecutors frequently underestimate the value of a victim’s testimony,” said Goldberg, who’s not representing any of Cuomo’s accusers.

Even if the Albany prosecutors thought they could lose the high-profile case, she and some other attorneys argue it was legally sound and should have gone forward.

“There’s merit in trying, even in losing. Because otherwise, you’re sending a very clear message to the public that if you’re a woman and you’re alone with a man in a room and he sexually assaults you, and there’s no one in the room, and he denies it, he’s going to get away with it,” Galluzzo said.

Andrew Stengel, another former New York City prosecutor-turned-defense lawyer, said the decision not to prosecute the former governor “reinforces the idea that there are two systems of justice – one for former elected officials and another for the general public.”

What's remarkable are the defense attorneys saying the criminal case should have been pursued. Especially since Andrew M. Cuomo would have been the defendant and that what happens in his high-profile case would potentially impact their future cases involving not-so-high profile defendants facing similar allegations.