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Ex-Syracuse coach not charged despite evidence

By Aman Ali

SYRACUSE, New York (Reuters) - Former Syracuse University basketball coach Bernie Fine cannot be charged under New York state law for allegedly fondling two ball boys even though investigators believe the accusations to be true, District Attorney William Fitzpatrick said on Wednesday.

Fine cannot be charged because the statute of limitations in New York state has run out, Fitzpatrick said. It requires victims to come forward within five years of their 18th birthday.

He said that the evidence would now be handed over to federal authorities, who will try to determine if there are other alleged victims.

Former ball boys Bobby Davis, 39, and his stepbrother Mike Lang, 45, accuse Fine of sexually abusing them.

Davis alleged the abuse happened "hundreds of times" until he was 27, while Lang alleged the abuse occurred "numerous times" until he turned 19, the prosecutor said.

Davis tried to report his accusations in 2002 to Syracuse police, said the district attorney, who criticized the police department's response. The Syracuse police chief at the time was a former Syracuse basketball player.

"Bobby, I'm sorry it took so long," the district attorney said. "I wish I had known you as a prosecutor in 2002 or even better in the 1990s." Davis and Lang were not at the news conference.

"If the statute of limitations had not run, there would be criminal charges against Bernie Fine that I would ethically feel comfortable asking a jury to convict him of beyond a reasonable doubt," he said."

A third man, Zach Tomaselli, 23, last month accused Fine of abuse. But Fitzpatrick cast doubt on Tomaselli's story and said his office would turn over to Fine's attorneys evidence that appeared to exonerate Fine.

That evidence included school attendance records for Tomaselli and travel records for Syracuse basketball, Fitzpatrick said. Tomaselli said he stayed with Fine in a hotel room in 2002 at the age of 13 during a basketball road trip to Pittsburgh.

Fine had no comment on Fitzpatrick's statements but his attorneys said he stood by earlier denials of the accusations as "patently false."

His attorneys said that it now appears Tomaselli, the third accuser, fabricated his allegations and Tomaselli should be prosecuted for lying.

"The incredible damage that Tomaselli has inflicted on Mr. Fine cannot be overstated," Fine's lawyers said in a statement.

Davis in 2002 recorded a telephone conversation with Fine's wife Laurie "in an effort to corroborate his victimization," Fitzpatrick said. During the call she appears to suggest that Fine did engage in inappropriate behavior.

Davis turned over the tape to the local Syracuse newspaper and to sports network ESPN but police and the district attorney only heard it a few weeks ago, he said.

In 2005, Davis notified the university of the alleged abuse and Syracuse conducted an internal investigation, which Fitzpatrick criticized as inadequate. The university took no action at the time.

Once the investigation was reopened last month Fine was initially put on leave. When ESPN subsequently aired the tape of the phone conversation, the university fired Fine.

"The significance of this tape cannot be overstated," Fitzpatrick said. "Anyone listening to that tape ... cannot fail to understand that Bobby Davis is being truthful."

Fitzpatrick cast doubt on comparisons between the Syracuse allegations and the sex abuse scandal at Penn State University, in which former assistant football coach Jerry Sandusky was arrested and charged last month with sexually abusing eight boys over 15 years. Sandusky was arrested again on Wednesday for abusing two more boys.

The Penn State scandal startled the nation and led to the dismissal of the university president and legendary coach Joe Paterno, who failed to tell police what they knew about the accusations.

Fitzpatrick defended Syracuse head basketball coach Jim Boeheim and university president Nancy Cantor, who he said had cooperated with the investigation.

"Coach Boeheim was interviewed (in 2005). He was aware of the allegations and cooperated fully," he said.

Boeheim, who has one of the best winning records in college basketball and is a member of the Hall of Fame, last month called the accusers liars. After ESPN aired the tape and Fine was fired, some child abuse advocates called for Boeheim's resignation.

But last week Boeheim apologized, saying that he had been "insensitive," in criticizing the motives of the alleged victims, and had reacted out of loyalty to Fine, with whom he had worked for 40 years.

Syracuse University had not immediate comment on Fitzpatrick's announcement on Wednesday.

Asked what might happen next in the case, Fitzpatrick said: "That's up to the U.S. Attorney's office. I can't bring Bernie Fine to justice for what he did to Bobby Davis and Mike Lang."

Under federal law, there is no statute of limitations for criminal offenses involving the sexual abuse of a minor during the life of the victim.

But Steven Statsinger, assistant federal defender at Federal Defenders of New York, said that federal prosecutors would have to establish jurisdiction to bring a case. If the alleged abuse occurred only in New York state, prosecutors might find it hard to establish federal jurisdiction, he said. . Fitzpatrick said that he was not aware of a fourth accuser of Fine. There had been rumors in Syracuse recently of a fourth accuser.

(Additional reporting by Andrew Longstreth in New York; Editing by Ellen Wulfhorst and Greg McCune)