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New York Attorney General Letitia James is facing a call to step aside from the investigation into the alleged Cornell sexual assault after an attorney for one of the accused students questioned whether she had publicly accepted the allegations before taking over the case.
Andrew Miltenberg, who represents one of seven former fraternity members accused in a civil lawsuit, said James’ earlier statements supporting the accuser created an “avoidable question about the appearance of impartiality.”
“The concern is whether the public can have confidence that the investigation begins without any predetermined view of the facts,” Miltenberg said in a statement to Fox News.
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Gov. Kathy Hochul appointed the attorney general’s office as special prosecutor Thursday, replacing Tompkins County District Attorney Matthew Van Houten in the investigation into an alleged October 2024 sexual assault at Cornell’s Chi Phi fraternity house.
The woman, identified in court papers as Jane Doe, alleges seven former fraternity members drugged and sexually assaulted her. The men have denied wrongdoing, with some maintaining the sexual activity was consensual and others denying they participated. No criminal charges have been filed against the seven men.
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Miltenberg’s objection centers on comments James made before her office was appointed to lead the criminal investigation. She publicly described what the woman had “been forced to endure” as “horrific and unacceptable” and told her, together with “all survivors,” that “we stand with you.”
When asked at Friday’s news conference about her objectivity in light of the Facebook post, James said, “I will not comment on a Facebook post.”
Criminal defense attorney and Fox News contributor Donna Rotunno also questioned James’ role during an appearance on Fox News’ “The Big Weekend Show.”
“But it should be fair. It should be impartial. And it should not be from someone who’s already made a public statement on Facebook about it,” Rotunno said of reopening the investigation.
James has said the investigation will be guided by “the facts and the law.”
Miltenberg said his concerns were not political and did not diminish the seriousness of sexual assault allegations.
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“There is nothing improper about expressing compassion for someone who reports a sexual assault,” he said. “But there is an important difference between supporting a person who makes an allegation and appearing to accept the factual premise of that allegation before conducting an investigation.”
He urged James to personally recuse herself while allowing senior prosecutors in her office who have not publicly commented on the merits of the allegations to handle the investigation.
“That would not weaken the investigation. It would strengthen it,” Miltenberg said.
He argued that the same concerns about independence and public confidence that prompted the appointment of a special prosecutor should apply to the person leading the replacement investigation.
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“I am not suggesting that Attorney General James does not believe she can be fair,” he said.
The case drew renewed scrutiny after Doe filed a civil lawsuit Sept. 16, nearly two years after the alleged assault. The complaint also names Cornell, fraternity entities, Doe’s sorority and a local bar, among others, alleging failures to protect her.
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Van Houten initially declined to pursue criminal charges, saying the signed statement his office received from Cornell University Police did not establish a crime under New York law. He said prosecutors assumed Doe’s account was true and that her credibility was “never in question.”
He later reopened the investigation after the lawsuit surfaced.
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Questions about the original investigation intensified when CBS News presented Van Houten with a fuller transcript of Doe’s police interviews that he said his office had never received.
“That wasn’t information that I had,” Van Houten said, adding that its existence “changes the landscape for me.”
Rotunno also questioned why prosecutors had not sought the complete investigative record before deciding against charges.
“The real question is, why didn’t the DA ask for every piece of information that the campus police gathered?” she said on “The Big Weekend Show.”
She warned against allowing public reaction to drive the case.
“We are watching the court of public opinion take over here when we don’t know the facts,” Rotunno said.
Cornell has separately agreed to an independent review of its handling of the allegations. University President Michael Kotlikoff said its disciplinary process resulted in two expulsions and two suspensions of at least two semesters. One student graduated before discipline could be imposed, and two were found not responsible for sexual misconduct.
Those proceedings are separate from the criminal investigation.
Cornell previously told Fox News it “fully support[s] the appointment of a special prosecutor” and is committed to “an independent external review of all aspects of how Cornell has handled this case.”
Miltenberg said any decision about criminal charges should come from prosecutors whose impartiality the public can trust.
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“The simplest way to remove that question is for her personally to recuse herself and allow an uncommitted prosecutor within her office to lead the investigation,” he said.
Fox News’ Michelle Langer and Michael Dorgan contributed to this report.
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