By February 23, 2017Criminal

Trevino versus Taylor that recognizes, get this, the right to effective assistance of counsel on writ of habeas corpus. OH MY GOD! So, read it! Read it and bask in the glory of success of our great colleague Warren Wolf. Thank you for that great introduction, Warren. I’m speaking to about how to be child sexual assault case. I’m not talking about tricks, I’m talking about, hard things that you can do in any case regardless of whether, you have a very young child victim, an older victim, you have a medical evidence that’s terrible, and I in your materials I gave you, an incredibly strong resource to use.

So I’m going to start off by using some anecdotal information and then dive into the wonder, wonderful resource of I’ve provided to in your materials. Ok! So it’s not going to work. So how to beat a child sexual assault case. There are some key components in my estimation that you need to use. First, it’s a mindset. I mean, capital murder cases and child sexual assault cases have a lot in common. They’re cases that, have really tough facts, and that are very uncomfortable to try. They’re emotional! You meet this mindset that the community’s debt set against you. It doesn’t matter what you say.

As Angelo was saying in her talk; you find the clerk and the court reporter and folks who issue subpoenas they just debt set against you and often times will cut you in corners , and they make you as counsel very uncomfortable and make it difficult for you to litigate the case . So it’s hard not to go into these cases coz sort of setback on your heels. But you’ve got to grab the bull by the horns. And, get in your mind that this victim is not a victim until that’s proven. Think about it! In most of these cases we’re going to rely on the word of a child! To put someone in prison, for a very long time! So don’t forget we’re dealing with someone who doesn’t understand consequences. Come-on, doesn’t understand truth from fiction no matter how many times you ask them; do you know truth from the lie? These kids still believe in Santa Claus and, tooth fairy or magic or whatever else you like, for years to come! Often times when they’re in high school, in college still! Until that judgment center of the brain develops at 21. These folks really don’t, get it entirely.

You’ve got to challenge these folks. I’m going backwards, I see! So, how do you, what are the key components? First, as I said go after those components. Look at their motives. Look at what reality is of what they say. Dive, beneath the surface and don’t accept what prosecutors tell you of face value, what’s in the reports and statements. at face value there’s more to the story than what’s in those item’s . Look at the process. How was the person interviewed? How many times by how many people, how many, out writers that out try keep changing? Is there something wrong with the prior process? Or why didn’t, the therapists keep notes? Is there something that had changed for the story? And why? The medical examination; I’ll show you how to do a deep dive here because; I haven’t found a case yet! Not one! Where the medical examination was done correctly.

This is fertile field for all of you and the paper that I’ve given you it’s going to provide you it’s in your hands how to deconstruct these horrible cases and win them, from the people that prosecute and serve as expert witnesses in these cases in the first place. And admissibility; statements made for determining medical diagnosis, is a very fertile field. You know, who did it, is not necessary for medical diagnosis if they’re in custody and they’re far away from the kid, and don’t have access to them. What room it was in? What color they were wearing? None of that’s necessary for medical diagnosis. What if someone said to them while they were doing? Not necessary for medical diagnosis. Don’t allow this stuff in! And finally forensics. Don’t accept they’re experts and think just by cross examination alone, that you’re going to be able to beat these cases. Bring your own experts and you’d be surprised where you find them. You can find affordable experts in child sexual assault cases and I’ll go through these key components more in my speech but this is what we’re going to touch on. Welcome all of you arriving you haven’t missed anything yet. Motive. What am I talking about here? Well, I had a case, and this is what the antidotal things I’ll talk about and then get into how you deconstruct your own case. I had a case with three children, said their father had sexually assault them, and assaulted them on numerous occasions. Three victims! Do not be daunted by multiple victims.

Don’t be daunted by and I call them complainants and I call em’ complainants throughout the case and assist everyone calls them complainants. But, 3 kids, three different ones saying different things happened at different times. On the eve of trial, the client plead, with the trial lawyer. Who wouldn’t have! There are 3 individuals saying different things happened, it was tough to beat. The reality was; these girls were angry. Dad had been fighting with mom. Dad got a divorce for mom. Oh my God, dad had a new girlfriend. They were angry!

No this, I’m happy to have people join us. And I just mentioned to the folks just coming in, I’m just relaying some anecdotal strays before I dive into the deep, really, fruitful and useful information to beat these cases and y’all haven’t missed anything, we’re starting light.
So these cases, the case involved 3,3 girls. The interviews we found, and Don Flantary helped me in this case, were driven by the mother. Don noted that the first interviews were on mom’s birthday. Happy birthday to me! You know she went in and she made these complaints and she got. You know she was sort of always driving the interviews. Dad did this dad did that! And each time the case was set for trial she made a trip with these girls out of town. Well below and behold.

We took a little look behind the record and we found out dads plea was involuntary, because not a one of these girls was claiming dad had sexually assaulted them. It was mom! You know she was leading; he did this and he did that and what kids not going to agree with mom. The kids were out of town every day before the trial began, because they really didn’t have a complaint. You know getting access to those kid even if the states sitting there when you’re doing it. Getting a refusal for the interview or finding a way that you can, look behind the surface. This is a complainant. And regardless of the age of complainant, you need to advocate aggressively to access to and challenge that complainant; child or not! You know the prosecution doesn’t have trouble getting in access to the child to interview them again and ask follow up questions or find a way to do it through an advocate. You shouldn’t either.

And this is exactly why. The case is Appada. Mark okada is reported or returned by the court of criminal appeals use it to get the interviews. Scratch the surface. In the Twile case the court of criminal appeal acknowledges the fact the kids have motives, and they can be teeny tiny motives; I got spanked! Dad wouldn’t take me to the movie. I didn’t get to spend the summer vacation with dad this time. Or he didn’t, show up at my ball game, when in joint visitation situations. I didn’t get a candy. The motivation for the accusation can be very small because these kids don’t know what they’re talking about and they don’t know the consequences and so you got to get access to the kids.

Francisco Hernandez

Author Francisco Hernandez

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