Sexual Abuse Charges – Blog 17: Preparing for Punishment and Mitigation

December 8, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Criminal trials are bifurcated.  This means there are two phases.  The first phase is guilt/ innocence and in the event of a guilty verdict then the second phase is a punishment phase.  The punishment phase can be either before a judge or a jury.  The defense is legally and ethically required to prepare for both.  Preparing for punishment is today’s topic on my continuing series of blogs about sexual abuse charges.

Losing or Pleading Guilty on a Sexual Abuse Charge

Many defense lawyers talk like pro wrestlers.  We talk about how tough we are and how we rip the opponent from limb to limb.  But the fact is we come in second place in our profession more than we’d like and plea bargaining is a critical aspect of defense work.

With the punishments for sexual abuse being as stiff as they are – we always have to keep in mind the possible second phase of the trial.  We have to work just as hard preparing for the possible punishment phase as we do the guilt/innocence phase.

In sexual abuse cases – particularly with child victims – plea bargaining is often not a major component.  This is because the plea offers can be so high that there is either no reason to seriously consider them or if the prosecution wants such a high prison sentence then on our side we may as well go down fighting.  But it never hurts to research, learn and develop mitigating facts either for punishment or on the off-chance we can plea bargain to lower charges.

What is Mitigation?

Mitigation means learning and proving facts which lessen punishment.

Mitigation is a difficult task in a sexual abuse case for a number of reasons.  There is a victim who has suffered horrific abuse which has the potential to emotionally and psychologically scar them for life.  Sex is still — and will always be — a taboo subject for many folks too.  Thus, many folks don’t understand criminal sexual dysfunction and aren’t interested in understanding it.  Another hidden factor is many jurors want to prove to other jurors how tough and intolerant they are of sexual abuse too.

The best mitigating evidence is what I call “three pronged.”  That is it accomplishes the following:

  • It acknowledges the abuse and thus helps the victim heal;
  • It explains underlying causes of the abuse;
  • It provides reason and hope the defendant can conform their behavior in the future.

Examples of Mitigating Facts in a Sexual Abuse Case

A saying I like is “hurt people hurt people.”  Many of the mitigating factors we look for are along those lines.  Examples could include:

  • The defendant was sexually abused themselves;
  • the defendant suffers from some mental deficiency;
  • the defendant suffers from some type of developmental deficiency;
  • the defendant suffers from some type of psychological deficiency;

Another key component of mitigation in sexual abuse cases are evaluations from licensed sex offender professionals which use empirical data to assess the degree of risk and the underlying causes of the dysfunction.  The evaluation can include a prognosis and discuss if any type of treatment will help the accused.

Examples of Mitigation the Prosecution Tears Through

Mitigation and preparation for punishment has to run deep.  There are some cases where the defense parades all of their friends and family to testify what a great person they are and hope it helps to lessen punishment.  I’m not against giving the jury a full picture of the accused’s life but doing a witness parade without something deeper allows the prosecutor to prove-up their narrative the defendant simply has everyone fooled.

Another poorly conceived punishment strategy is to tell the jury they got it wrong in the guilt/ innocence phase.  Don’t get me wrong… there is nothing worse to me than fighting like hell on a case I strongly believe in only to have a jury reject us.  But we only make matters worse by blaming them in a punishment phase.

*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 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 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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