I was called up just days before trial to sit second on a Felony Solicitation of a Child to Commit Sexual Assault trial in Montgomery County. Only around 1% of cases in Montgomery County get a not guilty verdict.
The Government had a good story going for it: Beautiful, intelligent girl asked by deaf Mexican in creepy truck for a blowjob in exchange for money, then creeper chases her down dark street after she says no.
The problem with that story is that it was not supported by the evidence. Sure, my client offered the girl a ride, not knowing she was a girl or having any idea of her age. Sure, his truck came to a stop on a dark dirt road in near the woods. Sure, the girl had reason to be spooked when she saw his truck roll to stop.
BUT HE WAS NOT A PREDATOR AND I ADMITTED THE BAD FACTS FROM THE GET-GO!
You have to admit the bad facts. You never know, your bad fact may be supported by your theory of innocence. For example, our client said his truck ran out of gas and the battery died. Well, we admit the bad fact and what do we learn in trial that supports out theory of the facts: (1) A 911 caller testifies that my client comminicated that his batter died and he needed a charge; and (2) Pictures ther sheriff took of the bed of my client’s truck showed, you guessed it, a tow rope and jumper cables.
BOOM — a fact beyond change turned into a fact that supports the theory of innocence.
A few words of advice from this attorney who is now in his terrible twos:
- Get the venirepersons to educate each other during voir dire.
- Because solicitation of a minor requires the government to prove the specific intent to solicit and the specific intent to engage in the solicited conduct, ask the jury what type of evidence the would expect to see. NOTE: a sharp prosecutor will object as an improper commitment question, but it is not so be prepared.
- You are looking for jurors that want: Money, Condoms, Clothing on, Nudity, Exposed Penis, Fingerprints, Corroborating Witnesses, Eye Witnesses. You want objective pieces of evidence that support the specific intent.
- Ask questions that support your theory.
- Listen for answers that might alter your theme in closing and support your theory of innocence.
- MOST IMPORTANTLY: in a conservative jurisdiction you MUST spend time harping on how great of a nation, state and even jurisdiction we live in. It is cheesy but it is the truth:
- this is not China, North Korea or Iran.
- We are presumed innocent/ cloak of innocence.
- We expect the best from our officers. They must exclude suspects/charges before charging/Best technology is a must.
- I thing this is the most important part of every closing, especially in a sex case, because the government is preying on each juror’s fear that the complainant could be their daughter, niece, granddaughter, neighbor, cousin. When you passionately argue the law, you are subconsciously reminding them that the person sitting next to you at counsel table could be their son, nephew, grandson, or self.