What’s next for the investigation into sexual assault allegations at Cornell

By Eric Levenson, CNN

(CNN) — When New York Gov. Kathy Hochul appointed Attorney General Letitia James to take over the investigation into an alleged gang rape at a fraternity house at Cornell University, she asked for a “fresh and thorough” review of all the evidence.

And there is a lot of evidence.

Far from the two-party “he said-she said” structure of many sexual assault allegations, the Cornell case features seven men accused of wrongdoing in a civil suit filed by the woman known as Jane Doe. There are interviews with Doe, the accused men and other witnesses; scores of texts and Snapchat posts; secretly recorded phone calls; and lengthy, conflicting reports from the police, district attorney and university investigators about who knew what when.

In all, it’s a far cry from the limited evidence the local prosecutor said he reviewed before deciding not to bring charges in 2024.

Putting the array of evidence together represents the primary task ahead for James, the special prosecutor tasked with leading the investigation and considering whether to bring charges. How the investigation proceeds will be closely watched by community members, university students and advocacy groups across the country.

“There is literally an avalanche of statements to collect in this case that apparently were not reviewed by the original prosecutor,” said Paul DerOhannesian, an Albany-based attorney and author of “Sexual Assault Trials.”

“Getting all those statements is a big task,” he said.

Mimi Rocah, former Westchester County district attorney and former federal prosecutor, likened the work ahead to “putting the pieces of the puzzle together.”

Hochul laid out the questions James will try to answer in a news conference on October 2.

“Attorney General James will be the one who puts a spotlight on this case and says, ‘Who knew what when?’ ‘What did they do wrong?’ ‘Why didn’t they come forward?’ and ‘How was this woman denied justice?’ and we anticipate that will come out over the right period of time,” Hochul said.

For James, the investigation faces several key challenges ahead, including the potential loss of evidence two years after the fact, questions about her potential bias, a supposed “loophole” in New York’s sexual assault law and intense pressure from the community.

The most important job of a special prosecutor, Rocah said, is “to try to conduct a fair process and really convey that to the public and be transparent at the end of the day about what you did and why you did it.”

The immediate next steps for James

At the news conference, James laid out her next steps as special prosecutor.

“Every New Yorker deserves to know that when they report a crime, it will be investigated fully and fairly. That they will be seen and heard,” she said. “We will review the facts, gather evidence, interview witnesses and, if warranted, pursue prosecutions.”

Much of the evidence may already exist. Notably, Cornell held its own formal Title IX investigation, the federal civil rights law banning discrimination based on gender – which includes sexual harassment and violence.

The investigation included more than 50 interviews, including with all of the men accused of wrongdoing, except one who declined to be interviewed, according to a heavily redacted 99-page document summarizing the panel’s findings. CNN has not seen the Title IX filings, which are generally confidential and restricted to the parties involved.

Separately, Cornell is reviewing its own response to the sexual assault allegations. This review, led by former US Deputy Attorney General Sally Q. Yates, will examine how Cornell “prevents and responds to sexual harassment, sexual assault and related misconduct on campus,” the university said.

Still, James will have the opportunity to reinterview certain witnesses rather than simply relying on previous evidence.

DerOhannesian said James will have a few extra tools at her disposal in this investigation. She could try to cut a deal with some of the accused, offering leniency or immunity in exchange for their testimony. Or she could try to look for evidence of process crimes, such as obstruction of justice or lying to investigators, if the evidence allows.

Her role here as special prosecutor is not so different from how prosecutors may reexamine cases started by their predecessors.

“That is not uncommon for people in decision-making positions to have to take a look at past investigations and past decisions,” Rocah said.

With so much ahead, the investigation is likely to take a while, DerOhannesian said.

“Because of the quantity of information that has to be processed, the multiple legal questions that have to be answered for multiple individuals, I think it’s gonna take a lot of time,” he said. “That may be frustrating to the community, that it will be taking time to get these answers.”

The office has reached out to several experienced attorneys to bolster its team, CNN reported Tuesday.

The attorney general’s office, known as OAG, “has spoken with the Tompkins County District Attorney, Jane Doe’s attorney, and several candidates for outside counsel to support the investigation. The DA has agreed to cooperate, and OAG remains committed to a thorough and independent investigation guided only by the facts and the law,” a spokesperson for James said in a statement.

Once the investigation is complete, James likely will either take her findings to a grand jury or issue a report explaining why she does not recommend charges.

The challenges ahead for James

One challenge for James is some evidence may have been lost in the two years since the October 2024 encounter. Memories may have faded, or digital evidence could have been lost or deleted.

“There are real challenges looking at something several years after it happened,” Rocah said.

Doe’s attorney, Thomas Giuffra, said her rape kit was conducted weeks after the incident rather than immediately afterward, potentially losing some DNA evidence. He also speculated that photos and videos of the incident may have been lost or deleted due to the failures of the original investigation.

“I mean, if this was a normal investigation that was done in New York City, for example, they would have gotten search warrants,” Giuffra told CNN’s Jake Tapper on Monday. They would have grabbed every single one of these phones of these guys. They would have downloaded all this material.

Another challenge for James is convincing the public to trust her independence and judgment. Late last month, she posted about Doe’s case, calling her a “survivor” and declaring, “We stand with you.” Days later, at the news conference announcing her appointment as special prosecutor, she declined to comment on the post.

Andrew Miltenberg, a lawyer for one of the seven former fraternity members, on Monday called for James to recuse herself from the case, saying her statements “could reasonably be understood as accepting that the alleged conduct occurred before she assumed responsibility for determining what the evidence establishes.”

Finally, any criminal charges would have to follow New York’s law defining sex crimes and lack of consent. In particular, lack of consent can result from being involuntarily “mentally incapacitated” by drugs or alcohol. But if someone voluntarily takes drugs or alcohol, they can’t be considered mentally incapacitated – an exclusion critics have called a “loophole.”

In Doe’s case, she has said she drank alcohol and took drugs that night. She also told police she was OK with an initial encounter but said she did not consent to sexual contact later in the night, according to a six-page statement obtained by CNN.

Tompkins County District Attorney Matthew Van Houten cited this law and Doe’s alcohol and drug use in defending his decision not to charge the accused fraternity members. However, he acknowledged he did not see all the evidence in the case before coming to that conclusion.

Giuffra said Doe’s reactions to the incident were a “textbook reaction to trauma.”

“Ms. Doe’s internal processing went from denial to shame and ultimately acceptance that she had been raped by people that she thought were her friends,” Giuffra told CNN Thursday.

This aspect of New York law will make bringing charges a “tough climb” for prosecutors, said CNN senior legal analyst Elie Honig.

Still, investigators could bring charges here under different theories, legal experts said. Even when someone consumes drugs or alcohol, they still may not be able to consent, or they could offer consent at one time and revoke it later, DerOhannesian said.

It all depends on the specific facts of the case, Rocah said.

“It makes a case under facts like this more challenging, but not impossible,” she said.

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CNN’s Kara Scannell contributed to this report.