Articles Posted in Articles of Interest

The jury had been deliberating several hours and I was getting a little nervous. I take great pride in persuading jurors during closing arguments that if they have any reasonable doubt about my client’s guilt, then there’s no reason to go into the jury room and spend hours debating. Just come back with a verdict of Not Guilty. I call it “The Five-Minute Verdict.” I explain that since the presumption of innocence applies and that the prosecutors hadn’t proven their case at any time, then jurors shouldn’t spend more than five minutes coming back with a not guilty verdict. Obviously that ploy hadn’t worked this time.

This was a federal case tried in Miami federal court. Like all my cases, I had put my heart and soul into this one. Many months of preparation went into this trial. I was determined to acquit my client who was charged with several very serious federal criminal offenses.

The edgy waiting was suddenly broken when a bailiff came in bearing a note for the judge from the foreperson of the jury. (Used to be called “foreman”) The foreperson, selected by fellow jurors, is the person who leads the jury deliberations and announces the verdict. Usually the foreperson is selected because of his or her dress and demeanor and thus is often considered the smartest or most sophisticated of the jurors. A note to the judge from the foreperson can often send a powerful signal about which way the jury is leaning, so we were all keyed up to learn the contents. The judge came out of chambers, took her place on the bench and sat examining the piece of paper for what seemed like an unusually long time. Then she smiled and beckoned the attorneys to come forward. She passed us the note. Here is what it said in its entirety in the exact spelling that was used: “What dose unanimous mean?”

INTRODUCTION

Unless you’ve been living under a rock, you must have heard about the 80+ women alleging that Harvey Weinstein harassed and/or assaulted them in some way. Additionally, numerous other similar troubling allegations have been made about other high profile folks like Kevin Spacey, Matt Lauer, Brett Ratner, Charlie Rose and Jeremy Pivens, amongst others. Especially in light of the current climate, many believe with 100% certainty that all allegations made are 100% true and correct. That may be the case. Like most people, I tend to believe that most of the allegations made are true. My heart goes out to every man and woman who suffers any type of harassment and/or abuse. What I am also certain of is that not every allegation is always worthy of belief. After 25 years of practice in the criminal arena as both a prosecutor and as a defense attorney, I know that people lie. Why they do it isn’t always known. It happens, albeit not often. For those who are falsely accused, I have one word to describe what they go through, “Nightmare.” I’ve been asked, “What can you do if you’ve been falsely accused of sexual harassment/misconduct and/or assault?”

ANALYSIS

The story the 16-year-old victim told the cops was that she had been dating my client for several months but then broke off the relationship. A few days later, she said, my client and one of his friends showed up at her house when her mother was away. When she refused to let them in, my client supposedly asked if she would just loan him her cell phone to make a call. When she opened the door to pass him the phone, she said, the two pushed their way into the house and raped her. Now my client and his buddy were sitting in jail charged not only with sexual battery, but also breaking and entering. They faced possible life sentences.

Frankly, I didn’t know whether or not to believe my client. The prosecutor had deep faith in the victim’s side of the story and would only offer 30 years as a plea bargain against the possibility of life if the case went to trial. But then my investigator came up with a very interesting document. Written in the victim’s own hand it was two pages long and entitled “Incidents.” Each page contained several men’s names along with some cryptic numbers, words, symbols and dates. The first name, for example, was “Marlon.” Under that were the words “two times” followed by “butt ass naked” and then three hand drawn stars, six dates and the name of a local high school.

I suspected we had hit pay dirt. I figured this was some kind of list of men with whom the victim had engaged in sex. But to prove that I would have to put her under oath and ask her what it all meant. Trouble is, in most rape cases the Rape Shield Statute prohibits the defense from inquiring into the victim’s past history of sexual escapades on the grounds that even a prostitute can be raped. But there are exceptions to the Rape Shield Statute and I won just such an exception by arguing that the statute didn’t apply when questions of consent were at issue. I dreaded taking a sworn deposition from the young girl in which I would take her through what I knew would be a traumatic recitation if the “Incidents” document was what I thought it was, but I also knew that my client’s future depended upon this single document.

Hypothetical

Imagine this. A guy in Florida shapes his finger like a gun and points his finger at a cop. As he’s doing that, he tells the officer, “I got you now!” You may be thinking, “Well, that’s not a bright thing to do.” Well, I don’t disagree with you. The question that I’d like you to ponder is, “Is what he did a criminal offense?”

Facts