Client Walks, But Was It A "Win"?

He faced a mandatory minimum of 25 years in prison when the case was called in for trial. Then the trial judge dismissed the count calling for such a penalty. During several days of jury selection, the judge then ruled that certain statements made by the defendant were obtained in violation of the law. Those statements were suppressed. The state offered him five years in prison. “No deal,” he said.

The jury was selected and the case was set to begin. He was accused of molesting two young boys.

We pleaded not guilty to the charges. It was looking like a fist fight: winner take all. Guilty verdicts would have put my client behind bars for a decade or more and a lifetime on the sex offender registry. An acquittal meant walking out the door, free as the breeze.

We were ready for trial. At least we think we were. 

Then the state started dropping witnesses. No “forensic interviewers” would testify before the jury. An odd decision, but given what we had seen of the witnesses during pre-trial hearings, it was wise: One of the quacks called herself “doctor,” and had the Internet Ph.D. to prove it. Forensic interviewing among those working in the child-sex abuse investigation industry is a self-righteous joke: put enough fundamentalists together in a room and the Bible explains it all, only in this case the revealed truth is not God’s word, but the “disclosure” of children whose stories may or may not be true.

Then the state surprised us. The boys’ father would not be called as a witness. He had potential Fifth Amendment issues of his own. Were he to testify, he might be asked to incriminate himself. We had investigated the man thoroughly and were not surprised. There was a dark side to this man’s life that explained a lot.

But how could we rebut the claim our client had “groomed” the man’s children if the man could not testify? It was our contention the man had forced himself upon our client and had invited our client into the family. We had evidence to prove it, too.

And if the boys’ father needed to plead the Fifth to avoid self-incrimination, then certainly the stepmother had reasons all her own to evoke her right to remain silent. We notified the judge that the stepmother needed a lawyer all her own.

This child abuse case was spinning out of control. Shouldn’t the boys have a guardian ad litem now, too? The state insisted on calling the boys as witnesses in a case that now required their parents to plead the Fifth? Who was looking out for these kids?

Tense negotiations led to a compromise. Our client, who had previously been convicted of a felony, was offered a guilty plea to a non-sex offense. He would be on probation for ten years, but would not go to prison for so much as a day. He would not have to register as a sex offender. He was on probation the day he was arrested, so, in a very real sense, he would leave the court in no worse position than he was when the case began.

Tempted though he was to try the case, he accepted the plea. It was a matter of risk management, I assume. He had reduced the risk of prison and registration as a sex offender to zero. Had we tried the case, there was always a chance the jury would believe the testimony of the two boys. 

The plea was entered, and we walked out of the courtroom and into the sunshine of a bright May afternoon. I was ambivalent. My client had always maintained his innocence, and had suffered greatly during the two years the case was pending. He wanted vindication. Yet we were walking out the door together, knowing we would never have to return in this case.

So you tell me, was this a win or a loss? The sporting metaphor fails here, as it so often does in the courts. I will never know now what a jury would have done with this case. Never. All I know is my client is free to sleep in his own bed. In this case, that will have to be enough.


Comments: (5)

  • win or loss
    Great job defending I hope we see this more
    Posted on May 27, 2012 at 4:34 pm by Darlin angel
  • winning???
    once again, our disgusting injustice system at work. how can you walk away and not feel dirty? taking a plea for something you didn't do leaves you with a lifetime of regret. fighting for your innocence and losing to a corrupt system also leaves you with a lifetime of regret. there is never a win.
    Posted on May 26, 2012 at 1:30 pm by Portia
  • Win or Loss II
    corrupt Ponzi Scheme which is the criminal 'injustice sytem', a true state-sponsored RICO violation which U.S. Justice fails to investigate or address. Fool me once, shame on you; fool me twice, ...
    Posted on May 26, 2012 at 12:48 pm by william doriss
  • Win or Loss
    I disagree with T.K. You won the battle, but lost the war. Personally, I want to win the war. Bridgeport Atty. Burton Weinstein told me in 01, "If you are truly innocent, do not agree to anything, do not plea-bargain and do not give them an inch." I followed that advice to the letter, and have no regrets. Consider: If every defendant demanded his Constitutional right to a trial by jury, these actions en masse would shut down the abusive, corrupt Ponzi Scheme which is the criminal 'injustice sytem',
    Posted on May 26, 2012 at 12:47 pm by william doriss
  • Win or Loss?
    Good job and clear win, Norm. You successfully helped your client hedge the risk of the trial penalty. The prisons are full of folks who strove for vindication.
    Posted on May 26, 2012 at 6:45 am by Tom Kirkendall

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