Colorado Criminal Defense – Pre-Trial Investeigation – “Now Is Not the Time Syndrome”
The following article was written by an expert in combating false allegations of domestic violence, sexual assault and child abuse. It has a great deal of wisdom to impart and I therefore have included it in my website on the issue of pre-filing representation and investigation and generally on the issue of a proactive approach
to Colorado Criminal Defense. The article is written as a warning to unprepared lawyers.
I join the author, for the most part, in his admonition against waiting too long to begin to explore the defense a criminal case. H. Michael Steinberg
When you are accused of sexual battery on a child, and facing from 8 years to life in prison, and an 85% chance of conviction, and facing having to register as a sex offender for the rest of your life, there is wisdom in not cutting corners.
Yes a syndrome! In facing allegations of child abuse, domestic violence, sex crimes and the like, the accused often hears from an attorney words that suggest nothing should be done right now. That we should “wait and see” what the other side does. As I have said elsewhere on this site, IF you tell your client that, he should fire you! If you don’t know what the other side will be doing, be it child protective services, law enforcement, prosecutors etc, then you can’t help your client! This probably then is your first case, or second. That is a warning that the legal profession could profit from taking into account. Giving the “let’s wait” advice is the worst you can give in this kind of case. These cases are won by hard work.
The suggestion from a lawyer that a client doesn’t need to be doing things that will cost them money is like any narcotic, it lulls both them and the lawyer into a false state of well being. And this is true if you talk to someone like me who is suggesting spending thousands of dollars on testing and building evidence. On one hand your client has a trusted lawyer suggesting that they “do nothing” and save lots of money versus a stranger suggesting that they spend a great deal of money. And facing such a case is frightening for clients. Feeling relief when their lawyer says “do nothing, spend no money” is powerful no matter how bad that advice is. And let me assure you, in this area it is the worst advice you, as an attorney can give. It may work in other areas of law; it is fatal advice in this area. The natural tendency for lay people is to take that advice and to sit motionless it is just what they want to hear, and it is just what unprepared legal generalists dispense without thinking. The problem with the advice is that while you and your client are “waiting” those gathering evidence against your client are not. The desire to save your client money may in other arenas be laudable; it is not in this one.
One of the most serious problems with these cases is that the “nowâ€ never seems to come. When the trial starts nothing of any consequence has been done to present evidence that the client is innocent. This is one of the reasons that account for an 85% conviction rate nationally in sex cases. No trial preparation to speak of no real attempt to persuade prosecutors and police that your client is innocent. I know it isn’t the typical way things have been done in the legal profession. Times have changed and new approaches to these cases are essential. Maybe rumblings from a staff investigator sent out to find the nasties on the alleged victim are what you think will help a client. Sadly that doesn’t sell well with today’s juries who don’t like to see victims tarred and feathered by mean shyster lawyers all you will accomplish is to further alienate a jury from your client. You must be logical in these cases and you must be willing to tell the client what they don’t want to hear, what it will really cost them to defend themselves. Today’s juries are better educated, albeit still emotional and not entirely logical on these cases. You can’t get by with tricks you need facts. And the best time is at the start of your case preparation. Starting with the first day you have the client.
Why do some lawyers stall? Well in some cases it is pretty easy to explain. Money. You see, if the case is blown away early the lawyer barely makes any money. The real big bucks for a lawyer are in the trial. That’s where the money comes to pay for the Benz! Some just don’t know any better. Many lawyers are taught in law school that almost everyone accused of a crime is guilty. With this mind set it isn’t important to try to prove a guilty person innocent. But you need to understand that what you were taught in law school doesn’t really apply to these cases. There is a very high incidence of contrived and false allegations. You need to set yourself apart for your client. You need to be aggressive. And if it is too hot politically for you to do that yourself, then one of our referral lawyers can take the heat off you.
For the client, the narcotic of not spending money on expensive tests is a lure many lay people just can’t pass up. Also they are often told that “those tests are not admissible.” Polygraphs and other tests are becoming easier to have admitted today. The technology is better. But most often the lawyer is just not familiar enough with these things to really know how to properly use the technology. So you just tell your client that it isn’t admissible, even when you should know that it is. In the case of psychosexual testing, a specific test that is used may not in and of itself be admitted, but the expert is. And there are ways to have these things brought into evidence, which is only one of the reasons you need a consultant to assist you and your client.
There are always snake oil salesmen who claim to have an easy and cheap cure to these cases. And there are always clients who want the cure in a can. We can’t help either. I have been working on this kind of case since 1976 and have yet to find a reliable cheaper or easier way to do them. If you want to actually win these cases you’ll need to bring one to the court with you, trying to “wing it” and find a case during the trial is not a real safe thing to do.
When you are accused of sexual battery on a child, and facing from 8 years to life in prison, and an 85% chance of conviction, and facing having to register as a sex offender for the rest of your life, there is wisdom in not cutting corners. Even when you consider the ramifications of a case where allegations are in juvenile or family court and what appear to be insignificant allegations with few personal ramifications. Of course you often don’t find out those ramifications for sometimes years and it isn’t you, as the lawyer who pays the price for being wrong.
Let’s take the current epidemic of false allegations of domestic violence we are seeing in America. Often the advice from misinformed lawyers is to agree to a “consent order” because, as men are told, it is of no consequence and won’t affect your divorce or life. On occasion I have had loud shouting matches with lawyers dispensing that bad advice to their clients. Those lawyers are unfamiliar with the massive changes to law, and the impact of the Violence Against Women Act. (VAWA) Among the nasty provisions of that law is the requirement that men who have been convicted of domestic violence cannot have a firearm, depriving the men of their second amendment right.
Provisions in VAWA-2 now before congress would “retroactivelyâ€ impose further punishments including the revocation of licenses. Such as a pilot’s license, professional (medical or law) licenses as well as even driver’s licenses. And this includes those innocuous little “consent orders” lawyers so love to force on their clients. They are, after all a guilty plea no matter what the lawyer says or thinks. A nolo contendere plea is a guilty plea. Any no contest plea for the purposes of the LAW is a guilty plea it is nothing else. And this means if you blindly accept them, the life consequences can be devastating for your client. Giving that advice is bad legal advice. And bad legal advice isn’t limited to non-lawyers. Legal generalists dispense it on a daily basis.
Now, don’t get me wrong, if your client has been beating his wife senseless perhaps he should take a guilty plea and get some help. I am addressing the subject of the men wrongly accused.
The advice to roll over and play dead is bad advice. Because in the end your client always will wind up being dead, legally, for real. And if he is sent to prison because his case was never worked, your client can find out how nasty a place prison can be. Downright unhealthy. Some people, however, must learn the hard way, and many lawyers simply don’t give a damn.
A facet of my work that disturbs me constantly are the letters from men I have spoken to who write me from prison telling me that they wished they had listened to me and the lawyers I referred them to. At first it was an ego builder to have the fact that I was right reaffirmed. I’d rather not be so right and have more innocent people out of prison.
Now is the right time! Tell your client that. Risk having him go to a less prepared and skillful lawyer. But sleep well at night you are doing your best for your clients. And it never hurts to ask for some guidance, even from a non-lawyer who sometimes can know some things about legal issues that you don’t. The best attorneys in America are using expert trial consultants to help them stay at the top of the profession.