SexCrimeDefender

How To Lose a Rape Trial

In August 2008 we finally came to the state charges for rape, assault and witness tampering.  The same issues of credibility were in play and the case was much easier for us as the more concrete evidence that killed us in the federal gun case were not relevant to the rape case.  It was to be a classic he said/she said contest.

At first the case unrolled beautifully.  The victim's lack of credibility was on full display.  The state handed me a bonus early on when they forgot to ID the defendant as the perpetrator which is an essential element that the state has to prove.  Then disaster struck.

My client began making noise about representing himself.  I knew that if I raised the ID issue at the close of the state's case that the judge was likely to allow the State to reopen to prove the case.  I also believed that the judge knew that the ID had not been approved based on some discussion during an ex parte discussion in chambers (done with state approval).  The reason for the ex parte discussion was to discuss my client's increasingly difficult behavior and the possibility of him representing himself.

When we came back in I made a tactical decision that I had to raise the ID issue and do a premature motion to acquit rather than have the client throw it away by confronting witnesses directly himself.  I did so and the judge agreed state was allowed to reopen. I was fired shortly after.  My client began to question our shortest simplest witness and seemed to realize he was over his head and so rehired me.  The ID issue was gone.

We proceeded through the rest of our witnesses and we were still doing well on the merits.  The client made a last minute decision to represent himself.  As I called his name he swept about 100 pounds of paper from the defense table and threw the table toward the bench.  The client was tackled by four bailiffs and the jury was evacuated.  I moved for a mistrial but the prosecutor was prepared with a copy of the federal judge's order denying my mistrial motion in the Federal gun case when the client had a lesser outburst in front of that jury.  The state judge accepted the order as precedent.

We rested. 

At closing, I argued the credibility issues described in my previous post on the federal gun charges.  Amazingly, the jury was out for over four hours (not the 5 minutes everyone anticipated after the outburst).  Several notes indicated that they were hung on the rape charge although it became apparent that they agreed on the assault charge early on.  Finally they came back guilty on all  counts.

In sum, due to the client's lack of control we threw away a guaranteed win on the ID issue, a probable win on the merits and any hope of a lenient sentence (yet to be determined).

How to Lose A Gun Trial

I just completed a three day rape trial in Northern Maine.  It was a fascinating case from beginning to end:

1.  The Defendant had allegedly abducted his pregnant girlfriend from a women's shelter in 2005.  They then commenced to moving around the Northeast in an effort to avoid child protective services.  The couple surfaced in late 2006 when the alleged victim called 911 and complained that the Defendant had just assaulted her and had anally raped her some weeks before.  When he was arrested a distinctive looking Bushmaster semiautomatic rifle was found in the bedroom closet.

2.  In the resulting federal trial fin the fall of 2007 for being a prohibited person in possession of a firearm (19 USC 922), the Defendant was found guilty after a three day trial.  The Government presented evidence that tied the Defendant to the gun from an ad placed by the Defendant for the sale of a car which ultimately resulted in the trade of the rifle.

3.  One central issue presented by me at the federal trial was the credibility of the central Government witness who was also the alleged victim of the rape and assault.  Her credibility was in serious doubt:

• She had recanted on the Defendant's arraignment date which seconded an earlier recantation she had made in a letter dated a week before.
• She had had a child taken by child protective sometime before running off with the Defendant in 2005.  The courts were about to terminate her parental rights when she decided to call the police in 2006.  The day she recanted the "Victim Witness Advocate" who works for the DA called child protective who came and got her newborn by the Defendant that very night.  She was not allowed to have the child back until she recanted her recantation.
• She claimed to have been abducted from the shelter by the Defendant when in fact she had called him to come get her at the shelter's secret location.
• She claims to have been isolated and controlled by the Defendant for the year they were on the lam but there was an extensive journal of telephone calls and love notes in her hand for the year which showed she had active use of the telephone.
• Shortly after being "abducted from the shelter she claims to have been forced to marry the defendant.  The marriage was witnessed by an EMT with training in domestic violence and his wife who saw no signs of distress.
• She claims to have been forced to stay away from a protection order proceeding which was brought at the behest of child protective and yet she later testified that she was 100 feet away from the courthouse on that very day getting 23000 for the sale of some real estate.
• Numerous neighbors testified that they saw nothing unusual about her during the year that she lived near them which was during the time that she claimed to have been isolated.  She was often seen walking alone to the store and post office.
• A second set of witnesses had minor problems.

In sum I had a lot to work with.  Unfortunately for the Defendant the guy who sold him the gun had no axe to grind and there was plenty of direct evidence tying my guy to the gun.  I looked it as a dress rehearsal for the main event which was the real trial.  The central witnesses credibility was again at issue on the same items.  The rape case, however, was in theory much easier because the concrete evidence that was relevant to the gun case was irrelevant to the rape case.  It was to be a classic he said/she said situation.

It is not exactly a secret that my client was difficult.  Much of the client's problems will remain buried in the attorney-client privilege.  Many, many letters were written by him to the court describing my perceived incompetence and ever so helpfully outlining our trial strategy for the prosecution.  I lost count of how many times I was "fired."  Did I mention I was his third lawyer?  This fellow was without a doubt the most difficult personality I have ever represented.

At the conclusion of the federal case, the client had a verbal outburst in front of the jury.  I moved for a mistrial but the Judge ruled that the Defendant could not create his own mistrial.  He has yet to be sentenced. 

This is all by way of preview.  My next post describes the weird turns this case took in the state rape case.   

Convicted Sex Offender Bail Revoked

From CNN:

FT. LAUDERDALE, Florida (CNN) -- A former Florida teacher, who for a year avoided serving a 43-year sentence for sexually molesting a 13-year-old boy, was handcuffed and ordered back into state custody Friday.

. . .

Aaron Mohanlal lowered his head as Broward Circuit Judge Marc Gold reversed a decision he made last summer granting the convicted sex offender a $610,000 bond while his conviction was appealed.

. . .

In April 2007, Mohanlal was convicted of 13 counts, including child abuse, molestation and lewd battery for forcing the boy, one of his students, to have sex in a classroom supply closet. Occasionally, the teacher would take the boy home during school hours for sex. He also purchased a cell phone for the teen and created nicknames for their genitalia to help keep phone sex a secret. The abuse went on for nearly two years.

Gold said on Friday that he weighed "the severity" of the case in deciding to revoke Mohanlal's bond.

. . .

Gold granted the bond in July 2007. It allowed Mohanlal to remain free until his case was tried on appeal -- a process that could take years. Gold had agreed to the bond on the condition that Mohanlal's relatives have liens placed on three family properties as collateral. That meant that if Mohanlal left town, or did not show up for court, the family would -- in Gold's words -- "lose everything."

Read the motion to bring Mohanlal back into custody (PDF)

• Read the bond hearing transcript (PDF)

. . .

Tom Blomberg, dean of the College of Criminology and Criminal Justice at Florida State University, said granting the bond was a mistake.

"This guy had all the incentive to take off knowing what he would face in prison. So, to know that there was nothing holding him here -- that his family wouldn't suffer one bit if he skipped town -- that's an enormous screw-up," Blomberg said.

Maine's First "Jessica's Law" Sentence (After Trial)

From the Bangor Daily News:

In the first application at trial of what is known as Maine’s Jessica’s Law, a Rockland man was sentenced to 22 years in prison for sexually assaulting a 4-year-old girl.

Micah Boland, 31, was sentenced Thursday in Waldo County Superior Court. Boland had been convicted in a jury-waived trial in February, and Justice Jeffrey Hjelm handed down his sentence after a review of Boland’s background and criminal history.

. . .

Assistant District Attorney Eric Walker said the sentencing was the first time Jessica’s Law was used in Maine after a trial. Like the federal version of Jessica’s Law, the state sentencing guidelines apply to instances of sexual assault of a person under 12.

There have been other sentences given in Maine under the law, but those were the results of plea agreements, Walker said. The law instructs judges to begin their deliberations with no less than a 20-year sentence, although they have the option of raising or lowering the sentence depending on the defendant’s background and other factors.

The assault took place in March 2007 in Liberty while Boland was staying with friends. The family left the 4-year-old in Boland’s care for a short time, and the girl revealed the assault to her mother and grandmother a few days later.

Boland confessed his behavior to police and recordings of those interviews were played in court during the trial. Although Boland did not take the stand in his own defense, the girl, who had reached her fifth birthday by the time of the trial, testified against him.

. . .

Walker said that, because of the nature of the crime, he recommended a 25-year sentence. Camden defense attorney Jeremy Pratt argued for a six-year term, Walker said.

Upon his release, Boland will be placed on lifetime supervision, which means he will essentially be on probation for the rest of his life. Any criminal activity during that period would land him back in jail, Walker said.