Just five days before Election Day, the media-dubbed “Cornell Seven” case had its first round of fiery oral arguments, with New York Gov. Kathy Hochul and Attorney General Letitia James defending James’ authority to criminally investigate the explosive allegations.
But Acting Supreme Court Judge James Farrell had pointed questions for both sides.
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For the defense, Farrell appeared concerned about why the other six men accused in the case had not been included in Gillio Lopes’ legal challenge, and whether the court could remove James from an investigation involving seven potential suspects… when only one was before him making the argument.
For the state, Farrell repeatedly returned to James’ controversial social media post supporting the accuser, questioning whether Hochul knew about the statement when she appointed James special prosecutor three days later. The governor’s attorneys acknowledged that she did.
Andrew Miltenberg, the attorney for Gillio Lopes, one of seven men accused in a civil lawsuit of sexually assaulting a former Cornell University student, argued that James should be removed as special prosecutor from the reopened criminal investigation because of the social media post the defense calls “prejudicial.”
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Miltenberg says James compromised her ability to conduct a fair, independent investigation when she publicly expressed support for the alleged victim, identified in court documents as Jane Doe, three days before Hochul appointed her to take over the case.
Miltenberg argues that James had already accepted Doe’s allegations as true before reviewing the evidence. But Hochul and James are pushing back, arguing that the attorney general’s comments were an expression of empathy, not proof of bias, and that Lopes has no legal grounds to challenge the appointment.
In a 52-page court filing submitted Oct. 22, attorneys for Hochul and James asked the judge to throw out Lopes’ petition altogether.
The state maintains that Hochul has the legal authority to appoint a special prosecutor and that courts generally cannot interfere with that decision simply because someone disagrees with the governor’s choice. Attorneys for the government also argue that Lopes has not been criminally charged and cannot show that James’ appointment has caused him any actual legal harm.
The hearing began around 2 p.m. Thursday at the Sullivan County Courthouse in Monticello, New York, before Farrell. Each side was allotted 30 minutes to present its case.
Stuart Bernstein and Miltenberg appeared for Lopes, while Kaitlin Vigars and John Moore represented Hochul and James.
Bernstein, a former prosecutor, opened by recalling that it had been an honor to represent “all people” during his career. “In this case, AG James represents ‘all citizens,’ and unfortunately, she has failed that obligation from the get-go,” Bernstein told the court.
He insisted that the defense was not asking Farrell to interfere with the criminal investigation or strip the governor of her authority.
“The only one that has brought a political issue into this is the state,” Bernstein argued. “We’re not asking the court to supervise an investigation. We’re asking to restore confidence into an objective investigation. AG James is not that person.”
He emphasized that the challenge was directed at James’ involvement in this particular investigation, not her authority as attorney general.
“What happened in this case, Your Honor, is a perfect storm,” Bernstein said. “We’re not looking for a wide-sweeping referendum.”
He instead asked Farrell to return the matter to Hochul so she could select someone else.
“We’re not asking you to step in and pick someone,” he said. “We’re not asking you to say the government doesn’t have the right to supersede. We’re asking you to say the person she picked doesn’t work.”
Bernstein then turned to the statement that sparked the legal challenge. At 6:15 p.m. on Sept. 28, James posted the following message on the attorney general’s official Facebook page:
“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.”
Bernstein walked Farrell through the statement, arguing that each part demonstrated James had already accepted Doe’s account.
“Now, Your Honor, that is not an empathetic statement,” he argued, pointing to three portions of the message.
By saying what the young woman had been “forced to endure,” Bernstein argued, James had accepted that the alleged events occurred.
He also questioned James’ decision to say she was holding Doe in her heart and prayers.
“Now AG James is making it personal,” Bernstein said. “She’s not saying crime is bad or sexual assault is bad. It’s personal.”
He pointed to James’ reference to Doe alongside “all survivors,” arguing that the attorney general had already classified the woman as a victim before conducting an independent investigation.
Bernstein also noted that James herself had not submitted a declaration addressing the allegations of bias.
He reminded Farrell that Tompkins County District Attorney Matthew Van Houten had announced plans to reopen the criminal investigation on Sept. 28, the same day James published her statement.
Three days later, on Oct. 1, Hochul issued Executive Order 64, appointing James special prosecutor. The order stated: “Concerns have been raised, both by Jane Doe and the public, that this incident cannot be fully and thoroughly investigated or prosecuted without conflict or bias, or the public perception of conflict or bias.”
Bernstein argued that the governor had cited concerns about bias to justify replacing the local district attorney, only to appoint someone the defense believes had already demonstrated bias.
“SHE has shown she has bias,” Bernstein told the court.
He also read comments responding to James’ social media post, including one questioning the presumption of innocence.
“So much for the presumption of innocence,” one commenter wrote.
“Your Honor, that’s the public!” Bernstein exclaimed. He argued that those reactions illustrated the very public concerns about fairness and confidence in the investigation that Hochul had cited in her executive order.
But Farrell soon turned his attention to a different issue: the other six men.
The judge questioned whether Sullivan County was the proper venue for the petition and why none of the other defendants in the civil lawsuit had been joined in Lopes’ proceeding.
“This is a multi-suspect case. It’s not just your client,” Farrell observed, asking why the other men were not part of the litigation. He presented Bernstein with a hypothetical: If Farrell agreed that James should be removed, would she remain responsible for investigating the other six men? Would separate prosecutors then handle different portions of the same investigation?
Bernstein responded that the other men would “reap the benefits” of the defense’s work, adding that none had moved to join the petition.
Farrell interrupted, pointing out that Bernstein had not served them with notice to join.
The judge also asked about the status of any criminal grand jury proceedings in Tompkins County. Bernstein said he had no knowledge of a grand jury being convened and was unaware of an index number or filing indicating such a proceeding.
The court also discussed a separate filing by another defendant, Winston Lee. Bernstein acknowledged that proceeding but said he was unfamiliar with some of its details.
Miltenberg then stood to address the court. He argued that the question of James’ ability to serve fairly as special prosecutor extended beyond Lopes alone.
“Whether it affects five of the seven, three of the seven, whatever it is,” Miltenberg said, the court still had to decide whether James’ statements disqualified her from the investigation.
“This is a statewide issue as we see it,” he argued, adding that there was no competing or pending litigation addressing precisely the same issue.
Farrell interrupted to ask whether the defense would raise the same objection if Lopes were indicted. Miltenberg responded that an indictment would not change the true facts or James’ previous statements.
“The facts don’t change,” he argued, maintaining that the attorney general had already accepted Doe’s allegations.
Miltenberg urged Farrell to consider whether James’ statements created an appearance of impropriety sufficient to justify her removal.
Bernstein also questioned how the seven men could have confidence in the investigation when, in the defense’s view, James had already publicly sided with their accuser.
“How are they supposed to feel as citizens?” he asked. “About getting a fair investigation?”
On the venue question, Bernstein argued that James’ statement and the governor’s executive order provided a connection to Albany County. Farrell expressed frustration with the multiple courts and proceedings connected to the case, referring to the situation as “chaos” and observing that courts should be the opposite of that.
When Vigars rose to argue for Hochul and James, she focused on the legal barriers to Lopes’ petition. She addressed venue, the applicable county law and the involvement of other potential petitioners. Farrell noted that some of those issues had not been raised in the state’s written brief. Vigars argued that Lopes could not establish the immediate, concrete harm required to bring his challenge.
“The harm alleged here is that the investigation will be improperly conducted,” she argued, but that concern depended on future events that might never occur.
Among those events, she noted, would be a grand jury voting to indict Lopes.
“His injury is not concrete,” Vigars said. “The harm cannot be speculative or contingent.”
She also argued that the defense’s concerns about fairness in a potential criminal proceeding did not give Lopes standing to challenge the appointment before criminal charges had been filed. If an indictment were returned, she explained, the case would be governed by the Criminal Procedure Law, potentially changing the standing analysis and the remedies available.
Vigars characterized the petition as a disagreement with Hochul’s choice of special prosecutor rather than a valid legal basis for judicial intervention. She argued that granting the requested relief would “improperly intrude” on the executive branch’s authority.
She maintained Hochul was not legally required to explain her choice of special prosecutor.
Vigars cited several New York decisions, including the 1977 case Mulroy v. Carey, addressing a governor’s authority to replace a local district attorney with the attorney general. Both sides also discussed Schumer v. Holtzman, a 1983 New York Court of Appeals decision involving the limits on prosecutorial disqualification in their filings.
The defense argued that James’ statements created a concrete risk of bias. The state maintained that Lopes’ challenge was premature and did not establish grounds for removing her.
Farrell also questioned Vigars about Johnson v. Pataki, a case involving the governor’s authority to supersede a local district attorney. The judge pointed out that although Vigars argued Hochul was not required to explain her decision, the governor had provided reasons for appointing James.
Vigars maintained that Johnson supported the governor’s authority and did not establish the limitations the defense was seeking.
Then Farrell returned to the issue that had prompted Lopes’ petition in the first place, and directly spoke to Vigars. He asked whether Hochul knew about James’ September social media post when she appointed her special prosecutor. You could hear a pin drop in the courtroom.
Vigars acknowledged that the governor was aware of the statement but nevertheless exercised her discretion to appoint James. Farrell then brought up Hochul’s Oct. 2 press conference, during which the governor publicly discussed Doe’s allegations and defended her decision to appoint James.
Reading from the press conference transcript, Farrell highlighted Hochul’s description of the accuser:
“This woman, this young woman, had already endured something that is utterly unspeakable.”
The judge asked whether James had been standing beside Hochul when the governor made those remarks. Again…one could hear a pin drop.
Vigars confirmed that she had.
The exchange appeared to highlight Farrell’s concerns about the timing of James’ statement and the governor’s subsequent appointment. Vigars insisted there was nothing to suggest the investigation would not follow the evidence wherever it led.
But Farrell was not finished with the social media post.
The judge noted that the statement had reached hundreds of thousands of people and pressed Vigars on whether such public comments were appropriate for a prosecutor.
“Is that a problem?” Farrell asked Vigars.
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He then questioned whether Vigars agreed that a prosecutor should not make that kind of statement. Vigars acknowledged the judge’s concern but stopped short of agreeing that James had acted improperly.
“I’m hearing, Your Honor, that you don’t think it’s appropriate,” she responded, before arguing that prosecutors are not categorically prohibited from making public statements.
She maintained that James’ remarks did not demonstrate that she would disregard evidence or conduct an unfair investigation. Vigars also argued that a writ of prohibition, the extraordinary legal remedy Lopes was seeking, was inappropriate because the conduct being challenged did not amount to an unlawful exercise of prosecutorial authority.
Farrell asked whether the men could bring up their objections later if criminal charges were filed. Vigars pointed to alternative legal remedies, including motions in a criminal proceeding and appellate review.
The judge asked whether a defendant could also bring up the issue before the criminal court in seeking dismissal of an indictment. Vigars agreed, explaining that such a challenge could then be evaluated on a more developed record.
As her time drew to a close, Vigars cited additional decisions from the state’s brief, describing them as established “black-letter law.” Farrell pointed out that none of the cases she cited involved criminal proceedings. Vigars responded that the current matter was not a criminal proceeding either, because no charges had been filed.
Before the hearing ended, Bernstein rose again to request additional time to address Farrell’s concerns about joinder.
He argued that Lopes had a right to pursue his challenge and initially requested three days to submit supplemental information regarding the joinder.
“You allege not only your client will be prejudiced, but so will the others,” the judge told Bernstein. “Where are the others?”
Vigars opposed additional submissions or any delay that would prolong the proceedings, but Farrell ultimately gave the defense one week, until Nov. 5, to submit additional information addressing the joinder issue.
Speaking to reporters outside the courthouse, Miltenberg did acknowledge that Farrell brought up an important question about why the other six men were not part of Lopes’ petition.
“We haven’t asked them candidly,” Miltenberg said when questioned about their absence.
He maintained that joining the other defendants was permissible rather than mandatory but acknowledged that Farrell wanted to hear from them. “The judge, I see, wants to hear from the other parties and he will,” Miltenberg said.
The hearing was then adjourned without a ruling.
The argument stems from the now-polarizing allegations that a former Cornell student was drugged and sexually assaulted by multiple men at the university’s Chi Phi fraternity house in October 2024.
The woman filed a civil lawsuit in September 2026 as “Jane Doe,” naming seven men, Cornell University and other defendants. The accused men have denied wrongdoing.
Tompkins County District Attorney Matthew Van Houten initially declined to pursue criminal charges following the original investigation but later announced he would be reopening the case. On Oct. 1, Hochul appointed James as special prosecutor, removing the local district attorney’s office from control of the criminal investigation.
As Los Angeles Magazine previously reported, Lopes filed his legal challenge on Oct. 7, arguing that James’ public comments created an unacceptable appearance of bias.
A second defendant, Winston Lee, filed his own challenge, accusing Hochul and James of turning the investigation into a political spectacle. His attorney, Teny Geragos, has also demanded information about communications between the governor’s office and the attorney general’s office. That argument is separate from the matter heard Thursday.
Meanwhile, the civil lawsuit continues in Manhattan, where the state court judge recently ruled that the accuser may continue using the pseudonym Jane Doe and warned against online harassment and threats involving anyone connected to the case.
Another defendant, Diego Sarabia, has moved to dismiss the civil claims against him, arguing that the allegations do not support the causes of action brought against him and that some claims are time-barred.
No criminal charges have been announced against the seven men in connection with Doe’s allegations.
Farrell did not immediately rule on the petition Thursday, leaving James in place as special prosecutor while the court considers whether Lopes has legal grounds to challenge her appointment. His decision to allow additional submissions on joinder means the defense has another opportunity to address a procedural issue the judge repeatedly brought up during oral arguments.
Meanwhile, Netflix dropped its own take on the explosive case Thursday with Instadocs: Jane Doe v. Cornell, a 36-minute documentary released the same day as the first oral arguments and five days before the election.
The film is the fifth installment in Netflix’s new quick-turnaround documentary series and examines the sexual assault allegations, Cornell’s handling of the complaint and the university’s Title IX process.
Among those interviewed are Gov. Kathy Hochul, Jane Doe’s attorney Thomas Giuffra, editors from The Cornell Daily Sun, a former fraternity president and a former university Title IX coordinator. Netflix says the documentary explores whether the systems designed to protect students and ensure due process are actually delivering on those promises.
Miltenberg told Los Angeles after the proceedings that he was not aware of the documentary and had not been asked to participate. “It brings up where the state is on this issue. Apparently, there is a Netflix documentary coming out. Someone pointed that to me this morning. Kathy Hochul, the governor and the Attorney General Letitia James have been interviewed and are taking part in that. I can tell you confidently that no one in my office or any of the other defendants’ offices has been asked to participate in the Netflix documentary. So I expect the documentary to be one-sided, salacious. I’m sure we’ll all want to watch it, but I also know that it won’t be the whole truth.”
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When outside, Miltenberg also dismissed the idea that the defense should wait for an indictment before challenging James’ role in the investigation.
“A criminal investigation, the integrity of the investigation begins at the beginning,” he told reporters.
He argued that waiting until charges were filed to address possible prejudgment would be unacceptable to defense attorneys.
“The time to do that is right now,” Miltenberg said.
Asked whether Thursday’s hearing represented progress toward removing James, Miltenberg did not declare a victory.
“I think we have some things to address and I think the judge is keyed in on what the issues are, so we’ll be back,” he said.
The seven men named in the civil lawsuit have denied wrongdoing, and none has been criminally charged.
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