Rothenberg v. Board of Regents of University of New York

Bliss, J. Petitioner has been found guilty of undertaking to perform a criminal abortion on one Edna Aaron and of having actually performed such an operation on one Leona Lang. The Aaron finding is based upon the testimony of Aaron and Bergh, both paid investigators of the Department of Education. . There is serious doubt whether under the so-called substantial evidence rule this testimony is sufficient to sustain the determination when considered against the background of the entire record. The evidence of these investigators at best is not of a highly satisfactory nature. Several errors were committed in restricting cross-examination by the accused. Questions relating to proper subjects were objected to by the witnesses themselves and were disallowed although trial counsel for the Department did not object. Subjects such as other employments and the like were not permitted. The hearing took place almost two years after the alleged Aaron offense and in the meantime these same investigators had made similar investigations in many other cases. Immediately after the alleged offense they had made written reports of the events. Copies of these reports were examined by them just prior to testifying. Petitioner sought to subpoena, examine and cross-examine with relation to these reports but all in vain. This court has previously indicated its disapproval of such rulings. These reports are not confidential and may have been extremely valuable for cross-examination purposes. This court can only speculate as to that. Although it would not compel the production of these reports or permit petitioner to examine them, the subcommittee which heard the charges examined them during the course of the trial. The reports themselves were not identified and do not appear in the record before us. All this was highly prejudicial to the petitioner. The Lang charge was the actual performance of an abortion. This charge was presented to a Grand Jury which refused to indict. The Lang woman was not of good reputation and was a patent falsifier in several instances. If believed, her testimony may have been sufficient to make out a ¡grima facie case. But here again previous written statements of the witnesses were denied to petitioner. Petitioner did not have a fair trial as to either charge. The determination and order should be annulled and matter remitted to the Board of Regents.