Question for the lawyers, defense of a paedophile

I’m not going to go into too many details, but an ordeal for my brother’s family is over, and a paedophile is behind bars for the rest of his life.

During the trial, the defense lawyer’s main argument that the relationship between the defendant and the victims was consensual, not forced. There were a few other smaller arguments, but this was the main defense.

And I completely don’t understand this. The victims were young enough that consent didn’t matter, what he did was illegal. How can you argue that something illegal was ok because the victim consented? “It’s ok you’re honor, the bank manager assured me it was ok for me to hold up the tellers at gun point and demand a big bag of cash.” “Your honor, he told me I could chop him up with an axe.”

The argument was very clearly incorrect. Absolutely nothing that happened was consensual, and the victims were made to promise not to tell.

What did the lawyer hope to accomplish with this line of argument?

IANAL but I will admit I am addicted to lawyer tv shows :slight_smile:

In the case of a defense lawyer, I would think that he is trying to get his client the least sentence possible. Yes, it is proven that he broke the law but now it’s up to the defense to convince the judge & jury how bad he broke the law. “There was consent” is his way of getting his client a few less years behind bars.

Was it a jury trial or a bench trial?

If a jury trial, then there’s always the possibility that the defense attorney was trying to convince the jury that though the acts might have been against the letter of the law, it would be wrong for them to convict. This would be most persuasive, though hopefully not persuasive enough to acquit, with an older victim.

He hoped to make the jury doubt, that’s all. To sympathize enough with the man that they set aside the law. It was an emotional appeal, nothing else.

One thing that makes me sort of ill about the American judicial system is that no one is really there to find out the truth and apply the law based on that. The prosecutor is there to make the best case he can, and the defending attorney is there to make the jury doubt the prosecutor’s case or the police officer’s following of procedure, not the truth. The truth of what happened and how it applies to the law is nearly irrelevant. We don’t exonerate people based on the reality of what happened, we find them “not guilty” because the prosecution didn’t make a strong enough case. If the defense attorney could get at least *one *juror to think that the prosecutor wasn’t making a good case, he might have gotten his client off.

No idea.

Could be:

  1. Bad lawyering. There are some really terrible court-appointed defense lawyers out there.

  2. Some sort of sentencing strategy, although I suspect consent isn’t relevant there, either.

  3. Some technical difference in the statute that we don’t know about.

  4. If he didn’t say that, he’d have nothing to say (except for a few other non-starter arguments).

  5. That’s what the client wanted him to argue; this one would probably be combined with reasons 1 & 4.

If this is the case, we’ll need to add:

  1. Lazy, sloppy, bad lawyering by the prosecutor. Such evidence is probably not admissible. It’s up to the prosecutor to object. No lawyer makes every objection (we’ve discussed this elsewhere), but that’s a doozy to miss.

  2. Bad judging. Perhaps there was a pretrial motion that was improvidently granted by the judge or an objection that the judge overruled at trial.

I’m thinking one of these two. Some jurisdictions have “Romeo and Juliet” laws, whereby in a statutory rape case, if the difference in age between the two people is a certain number of years or less the maximum possible sentence is greatly reduced. Should that be the circumstance here, the defense would need to establish that the person consented to the sex despite being legally unable to, to establish that it wasn’t forcible rape.

Not quite (unless I’m missing something), but you’ve still got a point. In order to take advantage of those statutes, the defense would merely have to prove that the defendant’s age. Forcible rape is a crime no matter what the age difference, but the prosecution would have to prove lack of consent, at least under all of the statutes I’ve seen. Nevertheless, the defense would certainly try to attack the prosecution’s case.

And I would think that even if there was no explicit ‘Romeo and Juliet’ provision in the statute, in some cases the defense might want to establish consent in order to argue that, while technically in violation, the defendant does not deserve severe (or even perhaps any) punishment. Ideally this kind of thing should be handled by prosecutorial discretion, but DAs have been known to be particularly dogmatic in rape cases.
I could imagine cases where, were I on the jury and the DA seemed uninterested in anything less than a full-blown major felony rape 10-years minimum conviction, I would vote ‘Not Guilty’ even though I was sure the defendant was technically guilty of statutory rape.

Of course, I don’t know the details of the particular case hotflungwok is referencing, so please don’t take my comments as applying to that case.

And some terrible non-court appointed lawyers too, who survive by preying on those too uniformed to know what to expect from a decent lawyer and too convinced of the adage that the public defender can’t be any good because he’s free and you get what you pay for.

Unless it fell into “He’s hanging himself; I’m not going to stop the execution by objecting…” I’ve seen cases where counsel is in a hole and doesn’t seem to know how to stop digging…

I thought better of that comment after I made it. That’s absolutely right. A paid lawyer isn’t necessarily any better. In fact, some of the worst lawyers I’ve seen (I’d say the top 10, actually) were getting paid by the client.

Yes. Although, if the defense lawyer gets away with this, and the case is the right kind, that’s a pretty risky tactic. I mean I could see letting the defense build it’s whole case on hearsay as long as the hearsay was fairly innocuous, or construct its entire defense case on leading questions asked of defense witnesses. Heck, I once read a transcript where the (hired) defense lawyer spent at least an hour trying to get the arresting officer to admit that he’d “created” the defendant’s felony firearm charge by stopping his vehicle (cuz, if he hadn’t been arrested for drug possession, he wouldn’t have been committing a felony while in possession of the unregistered firearm, sigh), but proving consent in the right case might actually work.

Assuming this wasn’t the right kind of case, then yes, I’d almost bet on this as the reason. It insulates the conviction from appeal, to some extent. The logic is: this guy is losing badly, so his client will be convicted. If the client gets convicted, there will be an appeal. If I don’t object to this evidence, it’ll be admitted and there will be one less thing the defense can complain about on appeal.

The victims were all under 12, the defendent was a middle aged man.

Yuck. Lawyerly incompetence sounds like a good guess. There’s a certain type of bad defence lawyer who doesn’t win many cases, but always has work, because he always presents the defence his client wants. In a child molesting case, that could well be “they wanted it”.

I’d say that a sentencing argument would be legitimate. For those who say that contact with factual consent is just as bad as contact with no factual consent, what about the opposite assertion: is lack of factual consent not WORSE than having it?

The problem with the sentencing argument:

(Emphasis added.)

There are plenty of things about a defendant that are relevant during sentencing that aren’t relevant to guilt. At best, this is one of them. It’s unlikely that the defendant would be permitted to make such an argument or introduce evidence in support of it during the trial, and in front of the jury. In this case, I’d be surprised if consent were even relevant at sentencing.

http://www.google.com/url?sa=t&ct=res&cd=2&url=http%3A%2F%2Fcaselaw.findlaw.com%2Fdata2%2Fcircs%2F11th%2F0310753p.pdf&ei=QavlRrf5KIiUigHd0qCDDA&usg=AFQjCNFXpjw2cMOKKQ0PO3gTmkYkkCVbrg&sig2=5pMmukxYgrdjUhrd2jGKkA (statutory rape is a “crime of violence” for purposes of sentencing)

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=10th&navby=case&no=052157 (same)

Well I’m not a lawyer, and I have doubts as to whether the two crimes should be categorized as the same, but that seems like bad lawyering to me if they actually wanted to get their client totally off the hook. Unless they thought there was a substantial chance of jury nullification, which there isn’t sentiment for in the particular facts of this case.

Like GFactor said, it’s possible there was something in the statute the defense attorney was attempting to disprove or mitigate which could have aggravated or elevated the offense, e.g., perhaps sexual assault by threat of death or serious bodily harm carries a more serious penalty or mandatory minimum. There could be increasing grades of offenses, like indecent sexual contact with a minor, then sexual assault, then aggravated sexual assault, etc., and the defense attorney was attempting to convince the jury that if the defendant was guilty, he was only guilty of one of the less serious offenses.

The other possibility, also mentioned, was that the attorney had no case and had to say something. This is sometimes referred to as the “fetal defense;” curl up into a little ball and let the prosecutor kick the shit out of you until his or her foot gets tired. Put yourself in the position of a defense attorney with absolutely no case: you’ve explained to your client very carefully the evidence against him is very bad, very convincing, and very admissable. You further explain that if he goes to trial, he will be found extremely guilty, will get much worse than what he’s being offered (assuming there even is an offer), and the sentences will be stacked. You do not feel that he will be a very sympathetic defendant and you urge him not to try his luck.

However, the alleged child molester does not seem to have a very good grasp on reality for some reason, and insists contrary to all apparent evidence that the complaining witnesses not only consented, they seduced him. He demands that you mount this defense on his behalf, and if you do not do so adequately, he will take the stand on his own behalf to tell the judge, jury and world how egregiously he has been wronged. No amount of pleading on your behalf can change his mind, and although crazy, your client is neither insane nor incompetent. The decision of whether to proceed with a jury trial is ultimately his, so off you go to fight a very big bear with a very small stick. If all you have is a handful of shit, it’s hard to dress up a shit sandwich.

I often wondered if there should be a 3rd party at a trial, a lawyer-type who will object to any statement or question which does not adhere to previously-established facts, and who is devoted in a disinterested neutral way to uncovering said facts when they may be relevant. Or am I just being a naive utopianist again?

If we could find that guy, we wouldn’t need the prosecutor or the defense attorney.

It may be that this was a case of the defence lawyer stuck with that immutable law of nature (and trial advocacy) - you can’t polish a turd.

However, one possibility that occurs to me is that hotflungwok has missed the purported significance of the issue - it might have been intended to go to credit. (This is not a criticism of hfw). It may be that the kid/s had given contradictory statements about whether they consented or not, or did things supposedly inconsistent with their jury evidence, and the defence lawyer was trying to demonstrate that their evidence was not worthy of belief.

It is common enough for complainant children to adapt to an abusive environment, sending the abuser (frequently a family member) cards, hugging and showing affection, etc. This is frequently used against them, following a line of argument that involves getting the kid to agree that the abuse was terrible, that they hated it, hated being with Uncle Joe or whoever, and then whipping out the family happy snaps, holiday cards,etc, where the kid seems not to be troubled.

I know that that is not the same as running an argument that the kid consented, but it is a common enough argument, the significance of which might be readily misunderstood by an observer who was not familiar with the common patterns of trials. I profer it as a further possibility and no more.

Good point. Yes, he could have been trying to impeach the witnesses (I gather there was more than one kid testifying).