WINNING A SEXUAL ASSAULT OF A CHILD CASE
My client was facing a sentence up to life imprisonment for the alleged sexual assault of his granddaughter. Back in 2003, while the granddaughter and her brother and father were living with my client and his wife in Texas, the girl (six years old at the time) had alleged that my client touched her on the seam of her shorts. At the time, my client denied that it had happened and stated that, if it did happen, it happened accidentally as she climbed in his lap. Nothing more was made of it.
Fast forward to 2005 when the girl’s mother took the children to North Carolina and attempted to get custody of the children. Somehow the mother and her parents found out about the claim in 2003 and took the girl to “therapy.” The girl had three therapy sessions before the custody hearing and, at the custody hearing, the therapist testified that the girl was now saying that my client touched her several time and digitally penetrated her. The mother argued at the custody hearing that, because the father did nothing when the girl made the claim in 2003, it showed he was a bad parent.
Shortly after the North Carolina custody hearing, criminal charges were filed against my client in Texas charging him with aggravated sexual assault of a child. The little girl, her mother, her father, her maternal grandmother and the North Carolina therapist testified against my client at the criminal trial that was held this week. My client testified in his own defense. We were also permitted to call an expert witness to explain the difference between therapeutic interviews (such as the ones done in North Carolina) and forensic interviews that are videotaped and are designed to assess the validity of sexual abuse charges. The expert also testified regarding the ease with which a child can be coached to make false allegations and how memory works. Our theory was that the child was not intentionally lying but that she had had false memories implanted.
After a two and one-half day jury trial, the jury deliberated two hours before returning a verdict of “not guilty.” I learned at least three things from the trial.
First, there is no substitute for preparation. Prior to trial, I travelled to North Carolina and spent a significant amount of time in that state gathering records and talking to witnesses. I was able to gather social service records and records and transcripts from the custody proceedings. All of this proved extremely important in being able to cross examine the state’s witnesses in the criminal trial and being able to show the jury the connection between the allegations and the custody hearing.
Second, it is very important to use an expert witness. Juries want to believe cute little children and will have a hard time believing children might lie. Nevertheless, an expert, backed by an extensive amount of research, can explain the concept of implanted memories to jurors. I was worried that the jury in my case would find such expert testimony boring. Nevertheless, when I spoke to the jury afterward, many of the jurors told me that they found my expert to be very helpful and credible. No juror told me that they found the expert boring. In case you are wondering, I used Dr. Michael Gottlieb from Dallas as my expert witness. Dr. Gottlieb’s website.
The third thing I learned (although I should probably say was “reinforced” since I already knew this) was the importance of making an appellate record. In the middle of the testimony of the child, I learned that an investigator from the District Attorney’s office was prohibiting people from entering the courtroom in order to “protect the child.” I asked for a full hearing and the investigator admitted that she had been trained to do this by the Dallas County District Attorney’s Office. The judge ordered the courtroom open but denied my motion for a mistrial based upon the denial of a right to a public trial for the portion of the trial in which the investigator had taken it upon herself to seal the courtroom. My research later revealed that, had we had to appeal this case, a reversal was highly likely because the denial of a public trial is a “structural” error and my client would not have had to shown he was harmed in any way. Of course, with the not guilty verdict, my theory never had to be tested!