Sexual Abuse Charges – Blog 15: What Advantages does Defense Have?

December 6, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

jeremy@texasdefensefirm.com

The short answer to what advantages the defense has over the prosecution in sexual abuse charge is this:  Not many.

Prosecutions for sexual abuse are like freight trains headed towards our clients.  But the Defense does have an advantage here and there.  It goes without saying we have to maximize those advantages is we want a chance.  What few advantages an accused has are the topic of today’s article in my continuing series of blogs on sexual abuse charges.

Unilateral Discovery

The biggest advantage the defense enjoys is unilateral — or one way – discovery.  This means we are entitled to virtually the entire prosecution’s file but the prosecution is not allowed to see ours nor are we required to disclose anything other than if we intend to call expert witnesses.  The Statute controlling discovery in a criminal case is Tex.Code.Crim.Proc. 39.14.

Unilateral discovery is critical for defense work.  I don’t know if my client is innocent or guilty when they walk in my door regardless of what they tell me happened.  I wasn’t with them at the time of the crime or accusation.

But let’s say I was worried anything I learn about my case was subject to me handing over to a prosecutor.  I wouldn’t interview witnesses for fear they’d say damaging things.  I wouldn’t ask for forensic tests to be done for fear it could show my client is guilty.  I wouldn’t have my client take a polygraph test or psychological evaluation for fear I’d have to disclose damaging evidence.

In short – if discovery was reciprocal Defense lawyers simply couldn’t do their job.  We would hide from learning facts instead of aggressively investigating a case.  Clients wouldn’t confide in us the truth and they would see coming to their own lawyer as just giving the prosecution more evidence.

So with unilateral discovery – if we do learn damaging facts then it stays in my file.  To do otherwise would essentially degrade not only the attorney-client relationship but my entire ability to fight for someone’s innocence.

We Have the Ability to Know the Full Story – They Know Half

Along the lines of unilateral discovery – another advantage we have on the defense side is we have the ability to get our side of the story plus theirs.  We already get the state’s file as I discussed above.

Once the accused has a lawyer involved – the prosecution and police’s ability to learn our side of the story is largely cut-off because they are not allowed to talk with the accused.

In cases where the police get a confession – they often have enough of an accused’s side of the story to make it extremely daunting.

Police know interviewing a suspect is a balancing act.  They don’t want to set off any alarm triggers with the accused which will cause them to get a lawyer involved – because that will effectively end their ability to learn information from them.  On the other hand they usually very much want a confession so most interviews are geared towards that goal alone.

We have the ability to sit with our client for hours at a time to learn about witnesses, facts and lines of defense  law enforcement doesn’t know because they were never able to interview the accused or they weren’t interested in asking because it wasn’t on their radar or it didn’t help them get a confession.  We also have the benefit of having friendly witnesses come to us too who don’t want to talk with the prosecution.

We Know Their Playbook – They Don’t Know Ours

Several blogs in this series have dealt with common prosecution tactics in sexual abuse cases.  We have the advantage of knowing how they often take a one-size fits all approach which includes their common arguments and even many of the same witnesses and their tendencies.

The prosecution might know certain experts we use and be prepared for them – but beyond this, they really might not have much of a clue how we intend to defend any particular allegation.

Ex Parte Funding

Defendant has the ability in many cases to ask the court for funds to secure either investigators or experts in Texas if the accused is legally indigent.  This is true whether or not counsel is retained or appointed.  Ex Parte means the defendant gets to approach the judge without the prosecution knowing.

Asking for funding for investigators or experts in fields such as psychology, computers, DNA or any other discipline isn’t so much an advantage as much as it allows defense to offset some of the prosecution’s massive advantage in these areas.

Work Ethic

It goes without saying the harder we work – the luckier we get.  The prosecution and law enforcement are working very hard but we can always out work them.  Make sure your lawyer is doing that.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He is designated as a Texas Super Lawyer by Thomson Reuters.

 

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Sexual Abuse Charges – Blog 14: The Bold, Aggressive, Courageous Defense

December 5, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

The next several blogs in my continuing series on sexual abuse charges is going to be about how we defend these types of allegations.  The common denominator for any effective defense is this: courage.

Remember, sexual abuse charges can be a Petri dish for injustice as I’ve said before.  This is because you’ve got highly emotional folks on each side of these cases with accusations of detestable conduct on one side and life-altering consequences on the other.  The corroborating evidence for each side’s story can be highly subjective, malleable, and with little or no scientific underpinnings.

Courage

It’s difficult to go to the 50 yard line at Cowboy’s Stadium and to shout “Go Cowboys!” in front of a capacity stadium.  There are nerves involved with getting in front of that many folks or maybe even being on TV.

But it’s far more difficult is it to go to the 50 yard line of Cowboy’s Stadium and yell, “Go Eagles!”  This is how it can feel to defend someone charged with sexual abuse of a child.

I’ve always like the movie where Rocky Balboa goes into Moscow and they boo him like crazy.  They see how determined he is – and what a worthy adversary he is – and eventually they cheer for him.  It’s campy, corny, and superficial – but there is a moral to it.  It’s more important people respect you than like you.  Rocky didn’t go into the boxing ring being apologetic for who he was.  He worked hard, trained hard, and fought hard and it showed.

Our Adversaries Advantages

Police and prosecutors soak-up high fives from juries and random humans they meet even in casual conversation in line at the grocery store.  The Children’s Advocacy Center is a non-profit who throws fundraisers and galas for donations (though as you recall it’s basically a highly unique police station).

Defendants are funded often by their own retirement funds, selling their homes, and sometimes their friends and families make similar sacrifices because they believe in their loved one’s innocence too.  Simply being accused of this type of crime means almost certainly being ostracized by others – and the accused finds out who his real friends are and aren’t quickly.  It’s no comparison.

I don’t want to short-change my opponents.  They stand up and fight for what they think is right and I respect them greatly for it.  They are hard working and they do have a very important job which I’m thankful they do.  Standing up for a victim and standing up against abuse is hard.  With apologies – defending someone accused of abuse is simply harder.

Back to Sports and Movie Analogies

Any defense in these cases must not only be executed with courage but must be aggressive and bold as well.  If you’re going to go to the 50 yard line of Cowboy’s Stadium and yell “Go Eagles” then you may as well mean it.  If you’re going to go to Moscow and fight Ivan Drago – then don’t be half-hearted about your efforts.

In the next few blogs – I’ll discuss a few more details about the nuts and bolts of defense work on sexual abuse charges.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He is designated as a Texas Super Lawyer by Thomson Reuters.

 

 

 

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Sexual Abuse Charges – Blog 13: There’s No Defense the State Hasn’t Heard

December 4, 2020

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

When someone is professing innocence it seems easy to simply point out certain factors or character traits we think would naturally support those claims.  It would also seem some arguments about positive traits would carry the day in the absence of physical evidence such as DNA or injury.

But the battle in a courtroom often turns into a rhetorical one.  What I mean by this is evidence of innocence can be flipped into evidence of guilt with a clever one-liner by the opponent.  This is the topic in today’s blog in my continuing series on sexual abuse cases.

I agree it flies in the face of the presumption of innocence.  If the prosecution is going to argue a certain character trait actually proves guilt and not innocence they should at least provide evidence and not just a retort.

I’m frequently told by my clients, “well what about this fact” or “what about that fact” – and it’s a hard conversation to let them know just how highly polished and frankly good at their job the children’s advocacy center can be at turning those arguments on their head.

But I’ve Never Been In Trouble Before

The State’s reply:  That’s how child molesters are.  They hide in plain sight.

Presto change-o.  Your lifetime of great behavior instantly becomes a negative.

But that Child Was Always Friendly to Me?

I’m frequently shown pictures of birthday parties, family gatherings, and other fun occasions after the date where the child alleges the abuse occurred.

I’m told, “if I had sexually molested him/her then why would they be so friendly to me after the fact?”

The State’s reply:  It’s because the child was confused and hurt that they were trying to gain the abuser’s love and support.

But I Love Kids

Perhaps true and perhaps a great sign a person is innocent.  Then again, you don’t have to look much further than the Jerry Sandusky case to see situations where serial pedophiles intentionally put themselves around or near children for the most sickening purposes.

Ask Any of the Other Children I’m Around 

The Prosecution’s reply:  Sure the other children will say you’ve never done anything sexual to them.  It’s because you chose this particular child because they are quiet, shy, isolated, etc.

But There is No Physical Proof

The State’s reply:  Of course not.  He’s so good at committing this crime he’s careful not to leave any clues.

On this topic It’s probably worth noting the role of a Sexual Assault Nurse Examiner or a SANE Nurse.  SANE nurses often examine a child for clues of sexual abuse – even months after the allegations.  It’s not uncommon for the nurse not to find any evidence of abuse.

But the real reason the SANE nurse is called to testify is to explain to a jury that what seems like evidence of innocence really isn’t.  They commonly testify in court about how the human body heals and how certain injuries do not necessarily occur during an instance of sexual abuse.

In sum: The SANE Nurse is there to take evidence of innocence (no physical injury) and turn it into a tie.

“Why Would The Child Make This Up?”

This is a common question asked by a detective to a suspect during an interview.  It seems straight forward but it’s really not for several reasons.

Here are just some the assumptions the question makes:

  • The only reason the allegation might not be accurate is an intentional plot by a child to have a grown up locked away in prison forever;
  • The child has a full understanding of the subject matter/ terminology;
  • The child appreciates the severity of the allegation as an adult would enough so that they understand the severe consequences of a mis-truth relative to them fibbing about what happened at school;
  • A child thinks rationally and makes rational decisions the way an adult would.

When the police ask this question to a suspect – they are looking for a twitter style response in 140 characters or less.  But cases like these are typically thousands of pages because of their complexity.  And the question really only shows the police have already made up their mind when they ask the question.

In Summation on Today’s Topic

A huge mistake I see inexperienced lawyers make in trials like these is not anticipating the State’s replies to these common arguments made by those professing their innocence.  A good defense needs to think multiple steps beyond how the prosecution is thinking.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization. He is recognized as a Texas Super Lawyer by Thomson Reuters.

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Sexual Abuse Charges – Blog 10: How Most Sexual Abuse Investigations Work in Texas

December 1, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Today’s topic in my continuing series on sexual abuse is the process for investigations in Texas.  Sexual abuse allegations typically follow a different pattern than investigations for things such as property crimes, drug crimes, or even other crimes against persons like robbery or murder.   This is because many Texas counties have built their own unique infrastructure specifically designed for sexual abuse cases.

Children’s Advocacy Centers

It’s hard to understand the investigation process in an abuse case without understanding a Children’s Advocacy Center (“CAC”).  A CAC is a combined law enforcement initiative.  It’s a central facility and organization where different police agencies can pool their resources under one roof specifically for the investigation and prosecution of crimes against children.  The CAC houses detectives along with other professionals who work with children in an effort to assist in criminal investigation and prosecution.

The CAC typically has liaisons with prosecuting agencies such as District or County Attorneys and it is not unusual for them to “roundtable” their cases where both prosecutors and law enforcement are present.  Most of the professionals who work directly with the children or the accused also testify in court on a routine basis.

My understanding is most, if not all, Children’s Advocacy Centers are non-profits under 501(c)(3) of the tax code.  Many testifying from the CAC are quick to point this out to a jury.  I argue to juries this claim is true for tax purposes but is a bit misleading because it leaves the impression the CAC is a neutral fact-finding group.  The truth is the Children’s Advocacy Center is really just a very unique police station.

What the Advocacy Center Does When they Get an Allegation of Abuse

Allegations of abuse (both physical and sexual) probably hit the CAC from all angles.  It could be a referral from Child Protective Services (CPS), a call to the police from anywhere within the county, or potentially they are even directly contacted by victim’s parents.

Forensic Interviews of the Complaining Witness

It’s very common for the CAC to conduct what is known as a forensic interview of a child they believe to have been sexually or physically abused.

A forensic interview is where a person sits down with a child and asks them open-ended questions and passively steers the conversation to to talking about the alleged abuse.  The interviewer does their best not to show judgment, approval, or anger towards the child’s claims.  The interviewer also does their best not to inject their own terms, phrases, or ideas into the conversation.

The purpose of the forensic interview is part human-polygraph and part legal strategy.  The forensic interviewer typically testifies as an “outcry” witness later in trial.

Suspect Interviews and Interrogations

It’s also common for a suspect to be brought to a CAC for an interrogation.  Perhaps this is because it is less daunting to lure a suspect into “Children’s Advocacy Center” than it is to a police station.  Many of these situations end with the suspect leaving in handcuffs whether or not the police get a confession.  Then again, I’m sure a suspect or two have managed to talk their way out of trouble too (but no lawyer who knows what they are doing will ever advise you to attempt this on your own).

Cross-County or State Investigations

It’s also common for CACs in different locations to coordinate with one another when they need to.  For instance if a child has since moved since the incident or allegation of abuse – the advocacy center where the child now lives may conduct the forensic interview(s) and/or interrogations of suspects.

Decision Making and Prosecution

The CAC staff and personnel go through their decision making process — whatever that may consist of — and they take whatever action they deem necessary.  That could consist of referring the case to a grand jury for prosecution, more investigation, or not proceeding with charges against someone accused.

Optimally an accused gets a lawyer involved as soon as they know the wheels are in motion at the Children’s Advocacy Center for a prosecution.  The lawyer can help talk “apples to apples” with the CAC detectives and try to do their best protect their client.

Of course, ultimately in America decisions about guilt and innocence aren’t made behind closed doors at a roundtable which doesn’t include the accused… which is why we see so much of advocacy centers and their personnel in the courtroom.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He has been designated as a Texas Super Lawyer by Thomson Reuters.

 

 

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Sexual Abuse Charges – Blog 9: Registration, Deferred Adjudication, and Probation

November 30, 2020

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Being convicted of a sex crime is unenviable to be sure.  One of the reasons we fight so hard on sex charges and crimes is because the down side is so catastrophic.

I’m continuing my series on sexual abuse cases – today discussing the technical and legal aspects of what happens if you or a loved one have either been found guilty, been placed on deferred adjudication or have been released from prison.

Sex Offender Registration

Registration is controlled by Tex.Code.Crim.P. Chapter 62.  It requires a sex offender to register with local authorities on a regular basis.  Many cities have also passed ordinances requiring sex offenders to live a certain minimum distance from schools or playgrounds which is an intentional method of excluding sex offenders from living in their communities altogether.

Registration is filled with tripwires and is enforced often by bored police or nosey neighbors.  Even homeless people must comply.  Failure to register as a sex offender in itself is a 3rd degree felony (2-10 years).

It goes without saying registration is very stigmatizing.  The stigma hurts not only the sex offender but punishes their family, too for being loyal.  Families suffer the choice between abandoning their loved one or themselves suffering retaliation in housing and at work.  Sex offenders are at heightened risk for suicide.

 

Deferred Adjudication

Deferred adjudication is a form of probation whereby a person pleads guilty but is not found guilty.  The person is placed on probation for a specific amount of time.  If they complete the probation the case against them is “dismissed.”  Dismissed under Texas law for deferred doesn’t really mean what we all think – it just means the case is over.

Deferred in a sex case sounds great – but is really often a trap door.  Name all 50 states in ten seconds.  Name every President of the United States in 30 seconds.  Sex offender probation isn’t quite that hard – but it can be extremely onerous and taxing.

The downside is if a person’s deferred is revoked – they are subject to the entire punishment range for the original offense.  So, for a first degree felony (5-99 years or life) – the person could actually get a life sentence if they unsuccessfully attempt deferred adjudication.

Additionally deferred in every case also triggers sex offender registration.

Deferred is also a mechanism prosecutors use if they have weak cases to bait folks into pleading.  If the person accepts the deferred and then has a hard time – the person can no longer argue they were innocent to a jury.  The only issue before the court is whether the person violated deferred.

There are benefits to deferred.  It isn’t prison and when the case is over the person can deny having been “convicted” although they cannot deny having been arrested, charged, or pleading guilty.  If they are charged again with a sexual abuse charge – the deferred counts as a conviction.

Completing deferred on a sexual abuse charge does not entitle the person to have their case sealed, expunged, or otherwise hidden from the public in any way.

Sexual abuse charges where a person is eligible for deferred (depending on their criminal history) are:

  • Aggravated sexual assault of a child;
  • Sexual assault of a child;
  • Indecency by contact;
  • Indecency by exposure.

Sex Offender Probation

The main difference between sex offender probation and deferred adjudication is the person is convicted prior to being placed on probation.  This has importance beyond being able to claim a person was never convicted of an offense.  The conviction actually caps the defendant’s legal exposure to prison.

In other words if the defendant violates probation and is sent to prison – it would legally be capped at the underlying sentence.  A person cannot be placed on probation for more than a 10-year sentence in any case.  Thus, being “convicted” of a sex offense in some ways is actually better than being placed on deferred for a sex offense.

The requirements of sex offender probation are equally as daunting and difficult as if someone is on deferred.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He is designated as a Texas Super Lawyer by Thomson Reuters.

 

 

 

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