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.

 

 

 


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.


Sexual Abuse Charges – Blog 12: Fist Fights Over Evidence

December 3, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

How do you corroborate your story with a completely he-said/ she-said debate about something which happened 5 years ago?

This is one of the big challenges of sexual abuse prosecution and defense.  Physical evidence such as DNA or other injuries which might be associated sexual abuse can be rare – particularly when an outcry is delayed for months or years.

So it’s often the case each side takes seemingly small or what may seem like insignificant scraps of evidence and do their best to magnify it by 10,000%  to try and corroborate their story.  The ensuing debate in the courtroom over just what the small shred of evidence might mean is what I call “fist fighting over evidence” and it’s the topic of today’s blog in my continuing series on sexual abuse cases.

The Challenge

Most offense reports I read allege something to the effect of the child making the outcry of abuse — and the report goes on to say the specifics of incident x happened “over the summer” or “sometime in March” or “a few months ago” in a certain location (i.e. aunt’s house, friend’s apartment) in a certain room of the home.  The reports then detail the specifics of the abuse if any are given by the child.

So if I’m having a conversation with a client who insists he is innocent – he can never answer the question, “where were you every day last summer and how can we prove that?”  He can never answer the question of “okay, even if you were at aunt’s house sometime in March – how can we prove victim wasn’t there at the same time and/or you and victim weren’t alone?” The task is virtually impossible in most cases.

So if there is any nugget of evidence which tends to show Defendant’s story is the truth – it becomes huge.

The Best Example – Brett Kavanaugh’s Calendar

Without getting into details of cases I defend – probably the clearest example of a “fist fight over evidence” would be Supreme Court Justice Brett Kavanaugh’s calendar which he contended was proof of his innocence against allegations of sexual assault and the US Senate then having a “fist fight” over what the calendar actually proved.

Staying away from the politics of it all – was the calendar proof Mr. Kavanaugh didn’t sexually assault Dr. Ford?  Maybe yes and maybe no – but my point is this is all he had other than his word.

The calendar even got parodied on Saturday Night Live.

Smart Phones – Evidence in a Box

A major difference between 1982 and the 21st century are smart phones.  Today we can tell if someone took the tollroad on a certain day, their GPS location at any given time, or pictures they took… etc.  So today we actually have a lot more potential to strive and attain some small nugget of proof which we hope can corroborate our story.

*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.

 

 


Sexual Abuse Charges – Blog 11: The Prosecution’s Trial Strategy

December 2, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

jeremy@texasdefensefirm.com

A chain is only as strong as its weakest link.

The prosecution in a sexual abuse charge with a child victim has a particularly daunting challenge – their star witness is normally a child.  So the state’s case is often only as strong as their child witness.

Many child witnesses can actually be quite good on the witness stand, but then again, children come in all ages, sizes and intellectual abilities.  It goes without saying when we ask a child to testify – we’re asking a child to do an adult thing.  There are memory issues, concerns about others trying to influence the testimony, and concerns about embellishment of details or the opposite – minimization of details.  And the concerns about child testimony obviously don’t end there.

Today in my series of blogs about sexual abuse we discuss the prosecution’s strategy in sexual abuse cases and how they deal with what is typically the “weak link” in their chain.

Strengthening the Weak Link

Anyone defending sexual abuse cases understands the Children’s Advocacy Center (“CAC”) was built like a machine to secure convictions.  Their playbook is simple, effective, and designed to steam-roll anyone in the defendant’s chair.

The CAC does everything in their ability to try and relay to the jury they believe the child is telling the truth and they have the unique power to know when a child is lying or telling the truth.  They provide often multiple witnesses for each trial which attempt to act as human polygraph machines.  Forensic interviewers, detectives, and other professionals from the advocacy center are highly polished career witnesses.

I call these folks the “truth detectors.”  But does strengthening every other link in the chain make the weak link any stronger?

Challenge #1 with Strengthening the Weak Link

Rules of evidence and due process prohibit what is known as “bolstering” and they also prohibit an expert witness telling the jury directly an opinion defendant is guilty.  So it would seem parading one witness after another from the CAC to wink and nod at the jury would be prohibited?

The prosecution takes advantage of rules on expert witness testimony which give flexibility to witnesses.  Rule  of evidence 702 allows witnesses with a particular knowledge and expertise in an area the ability to discuss their training and experience and to some degree allow them to opine more than a common or fact witness.  Judges are somewhat timid in shutting down these practices which have since been upheld by higher courts… meaning the defense has a harder time making legal challenges to this type of testimony.

Forensic interviewers are often allowed to testify as “outcry” witnesses even though their hearing the allegation from the child isn’t the first person over the age of 18 to hear the account of the abuse — and their hearing the allegation is a pre-meditated effort towards trial strategy.

Challenge #2 With Strengthening the Weak Link

The training and experience utilized by professionals at the children’s advocacy center tends to be highly anecdotal – so on the job learning instead of actual science.  The problem with the anecdotal experience is it really isn’t any good when your on the job training is in an echo chamber.  Not only this, at some level the actual science matters.  This is why being a candy-striper at a hospital for 20 years doesn’t mean you get to do surgery.

Also, even the science and psychology about children and sexual abuse tends to be highly subjective and malleable… and unfortunately some professionals at the advocacy centers don’t concern themselves much with the actual science and psychology.

So what we often get in trial are forensic interviewers or detectives who say things like:

“If the child recants the abuse – it’s because defendant is guilty;

“If the child sticks to the story – it’s because defendant is guilty;

“If the child looks the jury in the eye to tell confidently tell their story – it’s because defendant is guilty;

“If the child looks down and cries to tell their story – it’s because defendant is guilty;

“If the child omits huge chunks of their story – it’s because defendant is guilty and child is ashamed to tell their story;

“if the child gives graphic details – it’s because the child is emboldened and an empowered survivor and it’s because defendant is guilty.

The problem is the “truth detectors” might not be wrong about some or all of these assertions in any given case…. and as you can see there is nothing a witness like this can’t spin into “he’s guilty.”  Also, most of these observations are more conventional wisdom than actual science.  This is the juries job to resolve – and providing them an editorial shouldn’t be necessary.

Not all Trials are the Same

Evidence in each case obviously varies.  In some cases there might be a confession.  In other cases, DNA evidence or medical injuries might be present.  But a common denominator is the playbook from the CAC.  Fortifying the weak link.

I’ll be discussing how, as defense lawyers, we deal with and combat the prosecutions strategy later on in my continuing series.

*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.

 

 


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.