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 8: Double Jeopardy

November 29, 2020

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Today I’m covering an extremely technical legal aspect of sexual abuse cases which tends to be problematic for the courts – double jeopardy.  For the 40,000 foot view of all my blogs in the sexual abuse categories you can read here.

Why is Double Jeopardy Such a Headache in Sex Cases?

Double jeopardy has different applications.  It prevents folks from being put on trial twice for the same crime.  It also prevents defendants from being convicted and/or sentenced twice of the same crime.

There is a danger defendants are getting convicted and sentenced multiple times for the same singular criminal act simply because our legislature has written so many over-lapping criminal statutes.

For example (and I apologize in advance, as always, for the graphic nature of the subject matter), let’s say there is an act of molestation against a 13-year old which includes the actor causing genital to genital contact of the victim:

In that instance the following criminal offenses have been committed:

  • Indecency by exposure (2-10 years TDC)
  • Indecency by contact (2-20 years TDC)
  • Aggravated Sexual Assault of a Child (5-99 years or life).

But did the legislature intend for there to be three distinct punishments or just one?  If the answer is three punishments then a person could be sentenced to up to 129 years in prison.  We hear these type of sentences in other States, but not Texas.

This is a routine challenge for prosecutors to properly legally strategize as well as Courts and defense lawyers to make sure these things are properly legally handled.

Prosecutors obviously don’t want a defendant acquitted merely because they fail to prove the highest possible charges.  It’s a common tactic for prosecutors to “plead in the alternative” or to plead lesser charges as well as the higher charges for that very possibility.

But here’s the danger for the prosecutors – they risk having some of their good convictions vacated on appeal if those convictions punish someone twice for the same distinct criminal act.

Lesser Included Offenses

One of the challenges is because of what are known as “lesser included offenses” or “lesser included.”  A lesser included means a charge within a charge.  For example, if the prosecution alleges theft over $100 but less than $750 – but at trial it is shown the item stolen was only worth $98 – then defendant may be guilty of the “lesser included” charge of theft under $100.

It’s unfortunately not as clear-cut in sex crimes with regards to “lesser included” offenses.  This is because the statutory scheme by the legislature simply didn’t draft the offenses the same way theft charges or assault charges are drafted.

The test for whether a charge is a “lesser included” offense is if one charge contains an element (a required unit of proof) which the potentially greater charge does not.

Areas Where the Law Gets Extremely Messy

One of the distinct problems with sexual abuse cases is there tend to be often not only multiple allegations of different acts of abuse – but those acts are often alleged to have been committed on different dates and frequently at different places.  Because these cases deal with children who aren’t always the best at communicating the abuse they’ve suffered to the authorities, the courts and lawyers dealing with the cases have a hard time sorting out things too.

Often a prosecutor can charge the defendant with continuous sexual abuse of a child – which tends to “clean up” and legally simplify the charges and the jeopardy issues.  Then again, it’s hard to blame a prosecutor, too, for simply alleging every charge they can articulate in every different way so as to make sure the defendant is convicted.  But the prosecutor may be opening the door to double jeopardy issues down the road on appeal if they do so.

Why Double Jeopardy is an Important Issue

The way a case is charged by the prosecutor affects everything from plea negotiation, preparation of the defense and even frequently post-conviction if the defendant is seeking an appeal.  Sorting out and quantifying the legal impact of the prosecution “throwing the book” at your client is simply part of defending these types of abuse cases.

*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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