Showing posts with label sexual assault. Show all posts
Showing posts with label sexual assault. Show all posts

Monday, July 13, 2009

Why the Defense Does Not Share Info with the State

I have been practicing criminal defense for just about 21 years. One of the first lessons taught to defense lawyers is when you get a great piece of evidence or information, you do not share it with the prosecution until trial. Why? Because, especially if it is a problem with something an officer has said in his report (like an impossibility - there is no S curve where he says, etc.), then the State will "fix" it. Similar with other witnesses. If it can be "fixed", it will be - period.

How would this happen you ask? It is called woodshedding. I've already disclosed that I have never been a prosecutor but my understanding is that the prosecutor (person to whom you disclosed your great hose for their fire) talks to the witness & says something like, "hey - did you realize there is no S curve where you said. Could it be you made a mistake & were talking about the S curve a mile away." Witness, "oh yes - that must have been a typographical error when I wrote the mile marker number." . . . or something like that.

My last trial had a great piece of evidence. (Well, it would not have been as great as I thought had the State bothered to disclose Brady / exculpatory evidence because I would have had some impeaching evidence from their own file but, that is another story.) Anyway, my investigator attempted to call the brother of the c/w (complaining witness - girl who was making the accusation) to interview him, only to find that the c/w had the phone. Moreover, she was just happy as a peach to run off at the mouth of what she claimed happened.

Without going into details, her claim to the investigator was NIGHT & DAY different from her prior claims: new manner & means, new location, craziness claiming everyone was in the room right next door & wide awake! YEAHHHHHHHH. Wow.

Normally I would have just gone to trial & stuck it up her nose sideways, but there was a lot at stake here. Not only was my client's freedom at stake, but he loves his family & this was tearing a rift in the entire family. Moreover, there was going to be some graphically, embarassing details about 2 girls that would come out - and I truly did not want to embarass them. (Kids some times do things that no one else knows. There is no need to elaborate but I really do have a heart, and I did not want to cause unnecessarily embarassment.)

I fought with myself about disclosing this. I don't disclose, but there were these other issues. I finally had a talk with the prosecutor who led me to believe that if the girl really said X on the tape, then he felt he could not convince a jury beyond a reasonable doubt. I knew she said X, and took his words to mean he would dismiss. SO, with the client's understanding, I played the audio. (It is always better to get a dismissal than a trial - trials are NEVER a sure thing - especially when the allegation is sexual assault of a child.)

The prosecutor took detailed notes & disappeared for a meeting with c/w. My investigator even let c/w hear the beginning which had her voice. (She had denied to prosecutor having a conversation with investigator WHO FULLY IDENTIFIED HERSELF AS INVESTIGATOR FOR THE ACCUSED.)

He comes back - trial. He cannot explain why but I can - he let the father who is a vindictive jerk, who knew nothing about all the things going to come into play in this case, intimidate him. Rather than "do the right thing" with information I disclosed, suddenly at trial the c/w remembers talking to my investigator & saying the things (that the prosecutor had detailed notes on.)

I got a hung jury 8 to 4 for not guilty. (2 jurors lied - they had family members who had been victims & failed to disclose it although this question was specifically asked.) See, the prosecutor was right when he said that if she says X, then I can't prove the case beyond a reasonable doubt - and he couldn't. (They dismissed after trial.)

But, I re-learned my lesson - I will not share again. Nope. That was it for me. I knew better but I was trying to protect HIS c/w and another witness from massive embarassment but the prosecutor just didn't get it. I get it though - I'm done with sharing after that. From now on, expect to hear my good stuff during the trial. I may be an old fool, but I won't be that foolish again.