Last week I obtained a Not Guilty verdict on charge of Domestic Violence Assault after a jury trial in York County. In my career, I have defended hundreds of individuals charged with Domestic Violence offenses. I have significant experience in the Defense of such cases, and I have gained a unique perspective on how to help my client, how to negotiate the case, and knowing how to get the best possible result for every client. Last week, the case needed a jury trial in order to achieve the best result.
Domestic Violence cases are some of the most serious and difficult charges an individual can face. It is crucial that someone charged with any type of Domestic Violence offense be represented by an experienced Criminal Defense Attorney.
Going through the experience of being charged with a crime can be one of of the hardest things that an individual can experience. Being charged with a crime of Domestic Violence can affect almost every aspect of an individual’s life. DV convictions can result in the loss of a job, the loss of the right to own or possess a firearm or ammunition, negative effects on child custody, and so many other serious consequences.
Being charged with a DV offense is not the same as being convicted of a DV offense. An experienced Defense Attorney can guide you through the process but more importantly, defend and protect your rights. The first step, and the most important one, after being charged with a DV offense, is hiring the right Defense Attorney.
Recently, I tried a case in York County where my client was acquitted of Domestic Violence Terrorizing and Criminal Mischief. The case was fairly complex and the facts were very much disputed. The final result of the case is another example of why some cases just have to go to trial. The State was seeking a conviction as part of any plea bargain, and a criminal conviction was not an option for my client. The Attorney for the State was well-prepared for trial, and the State presented evidence that could have resulted in a guilty verdict.
Based upon my work on the case and trial preparation, I offered the jury a very different view of the events in question. My trial strategy was to expose how most of the State’s evidence against my client was just one interpretation of a sequence of events that had many other possible interpretations. I used my opening argument to prepare the jury to actively question the evidence. Through cross-examination of the State’s witnesses I was able to demonstrate that the evidence presented was not evidence of guilt, but rather evidence of doubt. Finally, I used my closing argument to tie everything together and persuade the jury that my client was Not Guilty of any crime. Again, some cases just have to be tried.
Last week a jury in York County returned a Not Guilty verdict on a charge of Class B Gross Sexual Assault in a case that I tried. The case involved a very complex set of facts and a lengthy investigation by law enforcement prior to my client being charged with the offense. As with any other case, preparation of the defense was key to the result. I utilized a private investigator to find flaws in the State’s case. I spent countless hours on legal research and trial preparation. A criminal jury trial is probably the most high stakes litigation conceivable. If the end result of the trial had been a guilty verdict, my client would very likely have received a prison sentence.
For the trial, I planned a defense theory that was made up of two distinct strategic objectives, if I had failed to persuade the jury on either objective, my theory would have fallen apart and the end result would have been a guilty verdict. The specific defense theory in the case came out of the facts, the charge, the defense investigation, my legal research and trial preparation. Prior to trial, I created a cross-examination outline for each witness, I never write my questions beforehand because effective cross-examination, just like effective communication, is based upon listening and comprehension. The first part of my strategy was to impeach the credibility of each witness called by the State on aspects of testimony that supported the State’s factual version of events. This part of the strategy was necessary to create doubt as to what the State was trying to prove occurred. The second part of my strategy was to create doubt, through questioning of certain State’s witnesses, on issues that went straight to the legal elements of the offense itself. By the end of the trial, I wanted the jury to have doubts about what the State said happened, but also to have doubt about the nature of what the State said happened.
The defense theory was nothing out of Law and Order or Perry Mason, but it was a clear, succinct and linear argument that I could preview for the jury in my opening statement, demonstrate through cross-examination of the State’s witnesses and persuasively argue in my closing statement. In every trial, I arrive at a defense theory based upon the work done in the case, but regardless of the case, my defense theory always has to be consistent, understandable, realistic, persuasive and genuine. If an attorney cannot be genuine in front of the jury he or she will likely lose the trial. Likewise, if an attorney does not have a theory that remains consistent throughout he or she will likely lose the trial.
The importance of preparation cannot be understated. Based upon my review of the case, I decided to attack the State’s case, and support my arguments through cross-examination of the State’s witnesses. My client did not testify and I did not call any witnesses. A common misconception is that the Defense has to put on a case in an attempt to prove a Defendant’s innocence. More often than not, an attempt to prove a client’s innocence is a dangerous trial mistake, and results in the jury deciding between the State’s version of events versus the Defense version of events. The mistake often inherent in the quest to prove innocence is that the Defendant does not have to prove anything. By taking on a burden that does not exist, the Defense risks the State’s case going unchallenged and the possibility that the jury prefers the State’s version of events over the Defense version.
It is only through preparation, diligence and hard work that a sound defense theory can be developed going into a trial. A defense without a theory has no possibility of success. A defense with a sound theory that can be presented to the jury in the opening statement, demonstrated through the evidentiary phase of the trial, and successfully argued in closing has the best possible chance of resulting in a Not Guilty verdict. Last week, I was able to successfully use my defense theory to convince the jury to return a Not Guilty verdict on behalf of my client.
Sex Offenses are some of the most difficult charges an individual can face, they are also among the most difficult to defend against. Sex offenses are emotionally charged, often involve publicity, and generate strong opinions from citizens and advocacy groups. Prosecution of Sex Offenses is incredibly serious, as it should be, and appropriate sentences after convictions tend to be in the years. The evidence in these cases can range from complex DNA analysis to a single allegation with no corroboration. Countless defendants have been convicted based solely upon the testimony of the alleged victim.
If you are charged with any type of Sex Offense, you must hire a criminal defense attorney with significant trial experience and specific experience in the defense of Sex Offenses. Do not be afraid to ask the attorney about his or her experience in criminal defense, prior trial experience, and experience in the defense of Sex Offenses. Protecting your rights begins with choosing the right Criminal Defense attorney.
When asked what his secret to lying was, George Costanza replied that “It’s not a lie if you believe it.” Costanza’s zen-like phrase on the art of lying is a pretty good place to start when trying to understand two recent rulings in York County Superior Court.
Last month, Justice Roland Cole ruled that Alexis Trowbridge (Wright) could plead the fifth in the trial of Donald Hill. The State had alleged that Mr. Hill was a patron of Wright at her now infamous Zumba Studio. The ruling was surprising and unique because Wright had resolved all of the charges against her and was in execution of sentence. Generally, in order to plead the fifth, a witness must be in danger of incriminating themselves during testimony and there must be a genuine likelihood of prosecution. Wright’s lawyer, Sarah Churchill, argued successfully that Wright could face perjury charges based upon her testimony. The State has already given Wright immunity for her testimony but prosecutors cannot give her immunity for future criminal conduct (which her testimony, if perjury, would constitute).
Today, Justice John O’Neil issued a similar ruling in another so-called “John” case in York County. I was a little confused by the first ruling by Justice Cole, largely because my only source of information was the Press Herald (no pun intended). I was able to watch the oral arguments by ADA Patrick Gordon and Sarah Churchill and hear Justice O’Neil’s rationale behind today’s decision.
As far as the arguments go, Attorney Churchill argued that the State has made it entirely clear to Wright, via a previous statement, that they do not believer her assertion that her prostitution activities were carried out because she believed she was actually a government agent working with Mark Strong. Whether Wright still believes that she was working undercover for the State was not made clear. Churchill further stressed that Wright’s genuine believe as to her activities would put her at risk for perjury charges. ADA Gordon argued that there is not, and never has been a right to invoke the right against self-incrimination in order to testify falsely. He also argued that the State would not seek to prosecute Wright based solely upon her beliefs. I will note that in terms of black letter law, Gordon’s on the better end. “The Fifth Amendment guarantees the right to be free from compulsory self-incrimination. It permits an individual to refuse to answer questions; but it does not give him the right to answer falsely. United States v. Mandjano, 425 U.S. 564 (1976). Furthermore, the Fifth Amendment “does not endow the person who testifies with a license to commit perjury.” Glickstein v. United States, 222 U.S. 139 (1911).
So what exactly is happening here? I’ll take a shot at it. A grant of immunity protects an individual from any prosecution based upon his or her testimony except perjury or the making of false statements. Wright would likely testify that she was a state agent when she was engaged in activities that constituted prostitution. Churchill argued the State has expressly said they believe that is not true. I’m pretty confident they have also implied it by extensively prosecuting her, convicting her, and putting her in jail. It is self-evident that prosecutors do not believe her story. In today’s ruling, Justice O’Neil referenced that Wright may have a complete defense to a perjury charge if she truly believes that she was an agent for the State. Going back to Costanza, it’s not a crime if you believe it (it is a complete defense to perjury in Maine if you believe you are telling the truth). The key to his ruling however was a statement to the effect of “because the State has manifested a believe as to the truthfulness of Wright’s testimony, there is a substantial risk of a perjury prosecution.” After that statement, he held that Wright could invoke.
I have practiced in front of Justice O’Neil my entire career. His professionalism, demeanor, and legal expertise are exceptional and he is far more intelligent than I am. But, I think he missed the call on this ruling, and I truly believe it is because this issue is being overanalyzed. The Fifth Amendment protects us from incriminating ourselves. It does not give us the right to commit a new crime. The fact that the State has manifested a belief in the veracity of the secret agent theory is immaterial. The State frequently has to deal with witnesses that have become a little dodgy during the case. The State will often call a witness that the prosecutor believes will testify falsely. The witness cannot plead the Fifth simply because the State does not believe him or her. Anticipatory perjury does not exist. The other weird thing is that everyone seems to acknowledge that Wright will testify that she was a secret agent. It’s almost like there has been a mini-perjury trial being held where Wright’s testimony is already on transcript. We do not know how she would testify, which is another reason why anticipatory perjury does not exist. Perhaps after being sworn, she might surprise people with her testimony.
The most difficult aspect of both rulings is that they’re a) pretty weird and b) could have strange consequences. Essentially, witnesses whom are disbelieved, but otherwise in no danger of prosecution, may now plead the fifth. I can see this scenario occurring in domestic violence cases where the alleged victim no longer wishes to cooperate with prosecution.
As a defense attorney, I’m not exactly opposed to these rulings, but they are not easy to interpret either. But neither ruling is wrong if you believe they’re right.
The Maine Legislature recently voted to override the veto of Republican Governor Paul LePage of bill L.D. 415. L.D. 415 requires law enforcement agencies to procure a warrant to obtain location information of electronic devices which are GPS enabled. L.D. 415 also requires that the State notify the owner or user of the device being tracked within 3 days of obtaining the location information. As with almost any law that restricts government intrusion, there are some exceptions to the warrant requirement. Specifically, a warrant requirement is not required for emergency users, with owner’s consent, or where there is an immediate risk of death or harm.
Why is this big news? For starters, the type of information gathering that L.D. 415 will apply to, has essentially being going on without any privacy protection for citizens. But we can probably reasonably assume that the government agencies most need a pretty serious justification before tracking a gps device right? Maybe not. According a recent study by the ACLU, over 250 of the 380 police departments surveyed used gps tracking methods. Even more importantly, only a tiny fraction of those departments had any real safeguards in place with regard to obtaining such information.
The ability to track a cellphone or other device is more than just a momentary lock on a person’s location. It is the ability to see where and deduce what a particular person or group of persons is doing. It is an extraordinary power that police can wield with little effort. This is not the beige sedan 2 cars back following a suspect for a few hours or days. This is a surreptitious, zero-effort, total backstage pass to a person’s life and habits.
I think the Maine Legislature did the right thing and required that at a minimum, police must have probable cause in order to obtain this type of information. Judicial oversight into the invasion of American privacy is never a bad thing.
A quick update on the state of law and cellphone tracking. Maine has now become the second state to pass a law restricting cellphone tracking (the other is Montana). The U.S. Court of Appeals for the Sixth Circuit held in 2012 that police did not violate the constitutional rights of a man convicted of drug trafficking when they monitored his gps enabled phone. In a decision that conjures up images of a biased little league umpire, Judge Rogers writes that “[u]nfortunately for the drug runners, the phones were trackable in a way they may not have suspected. The Constitution, however, does not protect their erroneous expectations regarding the undetectability of their modern tools. The U.S. Supreme Court has not addressed the issue specifically, but has held that placing gps tracking devices in an individual’s car does violate their Fourth Amendment Rights.