Sexual Abuse Charges – Blog 16: The Focus of the Defense

December 7, 2020

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Proving innocence in any capacity is hard if not impossible regardless of the case.  To prove this point during jury selection, I’ll often invite a juror to prove they are innocent of not running a stop sign on the way to court.  I shoot down argument after argument (you didn’t get everyone’s license plate at that intersection did you?  You didn’t happen to have a passenger did you?  If you did bring a passenger – of course they’re your family and will lie for you).  Eventually they see it is their word against someone else’s word.  Proving you are innocent of sexual abuse charges really isn’t any easier.

So if the defense can’t prove our client’s innocence – then were should the defense focus?  This is today’s topic on my continuing series on sexual abuse charges.

Playing Offense –  Theories of the Case

The major challenge of any sexual abuse case is why the child’s allegations are not so.    No blog or article dedicated to this topic would fairly do it justice.  But the complexity and difficulty of the topic underscore just how thorough the defense needs to be in evaluating not only the child but the child’s circumstances as well as the circumstances of the adults around the child.

Child and teenage psychology is such a vast ocean you could earn a Ph.D. on the topic and dedicate your entire life to studying, researching, and improving it.  The defense needs to explore different theories of the case based on every bit of evidence they can muster.  An effective defensive theory is more than just conjecture and should be supported by academics.

A misconception about a defense which suggests what a child is saying is untrue is that it is done with malice by either a child or adult hatching a plot to ruin someone’s life.  This binary misconception tends to thrust or flip the burden of proof onto an accused to not only prove they are innocent, but to also show a jury some evil intent by an accuser.

Many defensive theories focus not only on children who make the allegations but on the adults who surround them have a profound effect on what and how their children communicate to them.

Focusing on the adults around the children can reveal whether an outcry was in response to repeated questioning, suggestive questioning, or cross-examination of a child by a hysterical parent or adult.  Focusing on adults around the child, too, can reveal whether a child has been “congratulated for their bravery,” rewarded, or otherwise put on a pedestal with positive attention for saying what adults might want to hear about a ne’er-do-well relative or acquaintance.

These examples, of course, represent just the tip of the iceberg for situations where an outcry has gone awry.  You can read article, after article, after article about the terrible an unjust turns these types of cases can turn based on the hysteria and mismanagement of the adults who handle these cases.

So What Does the Defense Need to Focus On?

Everything.

*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 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 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.

 

 

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