To the best of my knowledge, I have never had an indecent exposure case prior to this one. Many criminal attorneys call these “weeny wacker” cases. No one likes to handle them. For some reason, the client is looked down upon more than a person that harms another. The guy is creepy, right. The case is gross. How can you defend . . . .
Well, my guy has many prior convictions and many pending. And despite years of evidence, he has never escalated, never touched anyone, never done more than read the paper in public with his dick hanging out. The DA wants to put him in prison for the rest of his life.
His prior attorneys just wanted him to take a deal as soon as possible. They never reviewed the statute or possible defenses. They had no problem setting him up with a felony. They never attempted to help him how to succeed on probation, or for that matter, get the treatment that would actually work.
I noticed in the current case that he was aggravated to a felony based cases from the statute as it existed prior to amendments. The amendments added an element. This means the priors are not priors, according to law. If there are no priors, then it is a misdemeanor with a maximum of 2 years, rather than a habitual criminal felony with a mandatory prison 6 years on each count. Motions filed, and while a trial judge may not grant it, the appellate courts likely would.
In reviewing that new element, and the facts, there is a defense. The facts do not satisfy that element, at least there is no actual evidence of it. There is speculation, which is a fancy word guessing.
So, if the judge will not follow the law and reduce to a misdemeanor and the DA wants to put my client in prison for the rest of his life, then we will set it for trial. And we do. Even where you do not have a great case, weird things happen at trial that can help the defense. I have never had a case that tried worse than it read – meaning, the police reports always sound worse than the actual evidence. This case fits on both counts.
The witnesses gave conflicting testimony on key facts and some even gave evidence showing that they were not victims. Just like attorneys, most people think this stuff is gross. In the #metoo era, helping your friend, empathizing with their experience, may mean that you believe you had the experience too. Fortunately, cross-examination is the greatest engine of truth known to man.
After all the lay witnesses had finished testifying, a professional witness, an experienced Jefferson County Sheriff Investigator in child crimes, testified. In response to an innocuous prosecution question (something like, “how did you get involved in this case?” normally answered by “I was dispatched” or “my boss assigned it to me”), the experienced cop answered with many words. So many words, they were in paragraphs, and not just one paragraph, but at least three. Somewhere in the third paragraph, the experienced cop said things that every cops should know they cannot say in trial after 6 months on the job. Mistrial required. Mistrial ordered. New trial date set, everyone has to come back, well except with a new jury.
Some might say this cop should be fired or demoted. The cop certainly needs training. On the other hand, a mistrial means my client is still not guilty and still not being sentenced to prison.
The next trial would be better for the defense. But, just prior to it starting, the DA finally made an offer that the client could accept.
As much as I wanted to try the case, possibly winning some counts and to prove my motions issues in a higher court, I also knew that my client would spend more time in prison waiting for appellate rulings than under this deal. I might be wrong about the appeal issues as well (doubtful).
Even where the facts or client are undesirable, unpleasant or gross, the job is the same. If you cannot verify what the cops and prosecutors are saying is true due to your feelings, you should not take the case. The job of a criminal defense attorney is to challenge their claims – as Vincent Gambini said in his opening statement, “Everything he just said is Bullshit.”