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There is no crime, murder or otherwise, that
carries the emotional impact that being falsely accused of child sexual abuse does. The
allegation alone leaves the falsely accused drained and usually with no direction or real desire
to fight or defend. The accused sits in amazement, wondering how the allegations even arose or
how anyone could believe them. In most cases, there is no medical corroborating evidence and
usually the entire case hinges on the word of the child. Unfortunately, that is all that it takes
for the State to secure a conviction. In these cases, regardless of the experts involved, it
usually comes down to the credibility of the accused against that of the accuser. The problem is,
where a young child is involved, a jury is more likely to believe the child. After all, why would
a child lie about something as serious as being molested, but they do. Prisons are full of men
who were falsely accused and convicted simply on the word of a child, regardless of how
ridiculous that child's testimony may have been. This being the case, what does one do when
confronted with a false allegation of child sexual abuse?
First, is the allegation simply an allegation or
has there been an arrest, either by affidavit or indictment? If there was an arrest by
indictment, that means the case has gone before the Grand Jury and they have returned what is
known as a true bill. If, however, there has been no arrest and simply an allegation, there are
several things that can be done to attempt and "prove the lie" before it does get
out-of-hand, but "waiting to see" is not one of them. Perfect example, in a prior Ohio
case, when a man was accused only of showering with his step-daughter, he retained the best known
criminal defense firm in the area, paying them a $50,000.00 retainer. Absolutely nothing was done
because the attorney wanted to "wait and see" exactly what the State had before they
got "excited." One month later, they found out. The accused was indicted on 14 separate
counts, 2 for rape. The prosecution was "not" waiting, they were working.
Can these cases go away, even when there has been
an arrest? Yes. Perfect example is a Florida case we were involved in. It had been going on for
more than a year. The wife and parents of man who was accused wanted to retain us, the accused
did not. He said there was no way we would accomplish anything that his attorney had not already
done and that retaining us would be a waste of time and money. His family did retain us. The
accused had previously failed 2 polygraph tests his attorney had arranged and his attorney was
"insisting" that the accused accept a plea. When I met the accused, he was hostile and,
to make matters worse, I asked him what questions he had been asked on his polygraph. He said he
had been asked if he "touched" the child and he responded, "No." I commented,
"So, you lied then." Obviously, that added insult to injury, but it was the truth. He
had "touched" the child, but not in a sexual manner and there is a world of difference.
I had him tested "properly" with my examiner and he passed with absolutely no problem.
Needless to say, his attitude changed immediately. Then I had him evaluated and, again, he came
through fine. His attorney had done one thing correct since he had been retained. At the early
stages of the case, he had retained a local psychologist, the same psychologist the State used on
sexual abuse cases and the only reason he retained him was to keep the State from using him.
After preparing a complete breakdown and analysis of the case, we presented that to the
psychologist, along with my client's polygraph and evaluation results. Three days later, my
client's attorney called him and told him that he had just been contacted by the prosecutor
and all charges had been dismissed. The psychologist knew the prosecutor well, had worked with
him on numerous cases and, went to bat for my client, once we provided him with the material we
did. His attorney had no idea that anything had been accomplished and, right up until the day the
State dismissed the case, my client's attorney was still recommending that he accept a plea,
so these cases can go away if handled by someone with the proper expertise.
If the case is in the early stages, think
seriously about retaining someone who has experience in defending false allegations of child
sexual abuse. Unfortunately, most local attorneys do not have that experience or expertise and
their normal reaction is, "Let's wait and see what we are facing before we get
excited."
Regardless of whether or not there has just been
an allegation, or if there has been an arrest, normally, after the immediate shock, the first
step is retaining an attorney. This is usually done by referral, by obtaining names of criminal
lawyers through a local bar association or by knowing someone. The question is, are you retaining
the right attorney and that can be tricky. False allegation cases are nothing short of an
epidemic in this country, but they are not specific to any one area, therefore, most attorneys
have no experience in dealing with, or in defending them. A former prosecutor, turned defense
attorney will, most probably have handled many sexual abuse cases, but there is a world of
difference in handling them as a prosecutor and as a defense attorney. A prosecutor simply puts a
child on the stand and asks the child to tell a story. The defense attorney must
"press" the child for details, something a prosecutor never had to do. Depend on the
fact that your attorney must be able to properly handle a child on the witness stand. I will
never forget what one client, who was seeking an attorney told me. The client asked the attorney
what they would do if the child began crying on the witness stand. The attorney's immediate
response was, "Well, I would hate it, but I would have no choice other than press on."
That approach can quickly lead straight to a conviction, especially if a jury believes the
defense attorney is "picking" on the child. The correct response to that question
should have been to immediately ask for recess. In that manner, the jury sees the defense
attorney as having compassion for the child.
There is an art to selecting the proper attorney
and, I would strongly urge you to review Your
Attorney and all other links associated with that page.
Once the attorney has been retained, some form of
defense strategy should be prepared and, at the earliest possible time, the defense should file a
Motion for Discovery. The State is required to provide the defense with a list of their
witnesses, their prospective experts, any documents they plan to use, police and investigative
reports and video/audio tapes of interviews that have been conducted. In most states, the State
has 30 days to comply. If, after 30 days, the State has not provided discovery, the defense
should file a Motion to Compel, asking the Court to order the State to turn over the material.
Now, on some occasions, especially when there are social service interviews and reports, the
State will not supply them. The defense needs to ask for them and, if refused, the defense needs
to file a Motion for In Camera Inspection. That simply asks the Court to review the material and
turn over to the defense what the defense is entitled to. In a prior case, the client was having
a very hard time getting DHS records. The attorney filed a Motion for In Camera Inspection. All
records were provided to the Court and, after being reviewed, the judge supplied the defense with
a single sheet of paper. My client was charged with raping a child and, when authorities had
asked that child how the accused's penis was "pointing," the child replied,
"down." Down meant no erection and was simply a detail that the child could not supply.
That was, without question, one of the saving factors in the case, so even one small item can
mean a great deal to the defense.
Although the falsely accused is normally
devastated by the allegations, it is vital that they educate themselves. So many rely on others
to do that. They will have family members doing research and making contacts because
"they" are to stressed out. That is a huge mistake. If the accused is not aware of what
is taking place, what is normal and how things should work, how will they ever know if they are
being defended properly or not?
In reality, there are two types of attorneys;
those that care and those that do not. Usually, the ones that do not will have an ego the size of
Texas. A perfect example of an attorney that cares is taken from an Oklahoma case. The accused
first retained what he was told was the best criminal defense law firm in northern Texas. The
attorney boasted how the client would have the "best" attorney at trial, but other than
a lot of talk, nothing was done and the firm actually damaged the defense. The client discharged
that firm and he and I talked with another attorney in Oklahoma. That attorney told the client
that he had been in practice for more than 20 years, knew how to present a case and was very good
with a jury, but that he had never seen a false allegation case and would not begin to know how
to properly put one together. A stipulation for his being retained was that I work with him,
preparing the case for trial. That association was nothing less than perfect. He had absolutely
no ego and was brilliant as a defense attorney. We worked perfectly together, for the sake of the
client.
An example of an attorney with an ego comes from a
Michigan case. The family that had retained me told the attorney that I would continue to be
involved and that I was a part of the defense team. The attorney wanted absolutely nothing to do
with me and, that was understandable. Prior to his actually being paid, the attorney made
numerous statements as to what needed to be done, yet nothing was ever accomplished. The
client's trial was delayed and the attorney again talked about what needed to be done, but
still it wasn't. In that case, the attorney allowed the client to submit to a polygraph of
the prosecutor's choice. The defense had absolutely no control, the polygraph was nothing but
an attempt to secure a confession and, when the client was told they failed, the emotional and
psychological damage it caused was unbelievable. That test was absolutely inexcusable. I
carefully watched as everything unfolded and had the client put all communications with the
attorney in writing. When the client asked the attorney how many trial days he expected, because
they wanted to accommodate my schedule, the attorney's response was, "I don't need
him here." That certainly did not bother me and I explained to the client, if I was an
attorney who talked, but failed to do, I would not want someone looking over my shoulder either
and most especially someone whose website says they take legal malpractice cases.
Another interesting thing about many attorneys is,
they will tell you exactly what you want to hear, prior to your actually retaining them. In some
cases, once you do, you cannot even reach them. Also, if you have a attorney who has promised the
moon, but delivered nothing, if you confront them, be prepared for them to respond with anger,
telling you that they are the attorney and they know what they are doing. That attack gets the
pressure off them and certainly puts them in a position of not having to really respond to your
question, mainly because they usually have no response.
Remember two very important things. Everyone in
prison had an attorney and very few attorneys have expertise in defending false sexual abuse
cases. They will treat these cases like any other criminal case and that alone can result in a
conviction. It is not productive to determine that you have the wrong attorney as you are picking
your jury.
Perfect example; in a Texas case, the parents of a
young man retained me simply to determine if their son was being represented properly or not. His
had been accused by two children and his case had been going on for 4 years. The first 3 years,
he wore an ankle bracelet and was subject to house arrest. The judge allowed that to be removed
when he discovered the length of time the case had gone on. My analysis was simple - The accused
was scheduled for trial the following March and I had been retained in November. My
recommendation to the accused and his family was, "Do not go to trial in March and,
especially do not go to trial with the current attorney." I found that there were numerous
video tapes of interviews with the child accusers that the attorney either did not know about or
had never attempted to get. I told the accused and his family that I would assist them with
finding a new attorney if they wanted. I heard nothing else until the following March when the
accused called me, crying. He said he testified that day and was sure the jury hated him. In
shock, I asked why he had gone ahead to trial, especially with that attorney. He said that he and
his parents did listen to me, but after I left, his parents talked with the attorney. Since the
case had gone on for so long, since they had already paid him and since he convinced them he was
on top of things, they decided to stay with him. The accused said he wished that he had listened
to me and that the jury would be going out the following morning. I told him to call me. The
following day, I did get a call, but from the mother of the accused who asked if I could
"get over there right now." She said they convicted her son, took him out of the
courtroom in chains and that he was sentenced to 25 years.
It takes a jury about 5 seconds to say, "We
the jury find." The question is, does the accused go home or do they go to prison? These
cases are won or lost long before they reach a courtroom and a great deal of the success depends
on the testimony of the accused. Any accused who does not testify in these cases can look for an
immediate conviction. When a child tells a jury that an accused sexually molested them, all the
Fifth Amendment rights in the world will not help. The jury must hear the accused say they did
not do it and they must believe them. Preparing an accused for trial is far more involved than
simply telling them to, "Tell the truth."
As I stated earlier, for anyone falsely accused,
fear is usually the initial reaction. Replace that fear with knowledge. Knowledge comes through
education and you need to know exactly what is going on, if you plan to survive. If you are
convicted, you could spend years in prison, waiting on a appeal that may or may not work, but
even if it does, you are facing a new trial and possibly a second conviction. It cost far less to
do things right the first time.
I would strongly urge anyone who has been falsely
accused to visit any of the links at the bottom of this page. There is a wealth of information
available and again, education and knowledge can prevent a conviction. You do the research, you
learn and you become an active part of your defense. After all, if you are convicted and sent to
prison, your attorney will still practice law and will still go home to their family on a daily
basis. You will not have that luxury.
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