Retaining the Proper Attorney When Falsely Accused

For those who have been falsely accused of child sexual abuse, one of the most difficult tasks they will face is retaining the proper attorney to represent them. There is far more involved than simply looking in the yellow pages or having someone provide a referral.

I have seen far too many cases where clients had been told they had the best criminal defense attorney in their state and, while that may be true for a murder case, it may not be when it comes to defending a false allegation of child sexual abuse. In late 2009, I completed a trial with a client that was found guilty. I literally begged that client to replace his attorney a year prior to trial, but the attorney convinced my client that he was an expert and that he had everything under control. What I observed at trial was an attorney with a huge ego who did things entirely his way and presented one of the worst overall defenses imaginable. His expertise and handling of jury voir dire, opening statements, cross examination of law enforcement, objecting continuously to statements in forensic interviews when they were presented to the jury after being forewarned by the Court that each objection would be over ruled, his cross examinations of the child accusers and the "character" witnesses he called on behalf of the defense was all totally inexcusable. There is absolutely no question that the attorney's "expertise" resulted in my client's conviction, but his overall representation probably amounted to just enough where it is doubtful that my client would have his conviction reversed based on ineffective assistance of counsel. I am quite sure the attorney would argue "trial strategy," and Courts will not reverse normally on that issue. Here is the perfect example of my client sitting in prison while the attorney goes home to a warm bed with the explanation, "Well we tried."

I have repeatedly said that although false allegation cases have become nothing short of an epidemic, they are not specific to any one area. If I wanted to specialize in these cases and just worked in Mississippi, I may see one, possibly two cases of this nature in a life time, hardly enough to give me any expertise. The only reason that I have gained some knowledge is that I have been willing to travel, working these cases since 1989, to the extent where I average only about 3 days a month back in Mississippi. That amounts to a great deal of traveling and I know of only three attorneys in the country who are willing to do the same. They would qualify as experts. Attorneys who do not travel simply do not have exposure to these cases and most of them fall short when it comes to providing a proper defense.

There is only one system that I have found that seems to work when attempting to locate and retain a proper defense attorney. First, I prepare a basic synopsis of my client's overall problem. That is delivered by the client to a group of prospective attorneys with a request that they read the document and, if the case is one they believe they could successfully defend, then the client would like to schedule an appointment to discuss it. In doing it that way, you have put the relevant facts before the attorney. They can either read it or not, and if they do, then decide if the case is something they would or would not want to become involved in. That is a far better approach than calling an attorney you do not know, spending an hour trying to explain the case and then throwing money on their desk, "hoping" they will defend you properly.

We have found that about 90 % of the attorneys the packets were delivered to will call the client immediately and schedule an appointment. Keep in mind that, even when that is done, there is no guarantee that the attorney has actually read the material, but at least the appointment is arranged, taking you to step two.

The second step is to meet with the attorney and, at that time, ask specific questions to determine if they read the document, if they have experience defending clients falsely accused of child sexual abuse and, if they are being honest or simply telling the client what they want to hear. Time and again I have had clients meet with an attorney who told them that their case was an emergency and there were a number of things that needed to be done immediately.

I would strongly recommend that before any attorney is retained, the prospective client check to see if any complaints have been filed against that attorney with the local bar association. I had one client who was told many things needed to be done, they paid him and absolutely nothing was done. Amazingly, a check with the local bar association revealed that he had at least six prior complaints from ex-clients who all said they had paid him and he had done nothing.

Remember, this is your life and it is far less time consuming to get a proper attorney than it is to try and overturn a conviction, so be wise.

Now, in my cases, prior to my client actually meeting with a prospective attorney, we prepare a list of questions specific to their case. The client goes over each question with the attorney, writes down the attorney's responses, completes the interview and then rates the attorney on a scale from 1 to 10, with 10 being the best. Time and again I have seen clients rate the first few attorneys they talk with as a 7 or 8, and as they continue talking to others, they find that their first 7 and 8's were, in reality, 3's and 4's. The reason is, after several interviews, they have something to compare. Again, by using this approach, the attorney is selling themselves to the client.

Our main concern when a client talks with an attorney is to determine if that attorney is telling the truth or are they simply telling the client what they want to hear in order to gain a fee. Unfortunately, clients found that most of the attorneys they talked with responded inappropriately to the questions and many of them even went so far as to attempt to redirect the client's attention away from the questions they were asking. We took over 300 attorney interviews that clients have completed in 11 states and prepared the following as an example of the basic questions that attorneys were asked and the responses they provided. Now, keep in mind that the following consists of the majority, but not all of the interviews that were conducted. There were some attorneys who did respond perfectly, but 95% did not and were quickly weeded out as potentials.

Have you ever defended a client who was accused of child sexual abuse? Yes, frequently.
How many clients have you defended who were accused of child sexual abuse? I can't give you a number, but it has been quite a few.
How many cases have you won where you defended a client who was charged with sexual abuse? Most of them, but again, I just can't give you a number off the top of my head.
In your cases where clients were charged with sexual abuse, how many of them entered a plea? None.
Are you experienced at questioning young children on the stand? Absolutely, I do it all the time.
What do you do if questioning a child and they begin to cry? You have no choice. You have to be careful, but you have to keep asking the questions.
What is your policy regarding a preliminary hearing? I would rather wait and get them on the stand at trial.
Do children lie about something as serious as sexual abuse? Absolutely.
Why would a child lie about being sexually molested? There are a lot of reasons and you have to try and find out why in this case.
Would Jury Voir Dire be different in a child sexual abuse case? Jury voir dire is pretty much the same. I may ask them if anyone in their family was ever molested.
What type questions would you ask in jury voir dire where a client was charged with sexual abuse? Will they listen to all the evidence before reaching an opinion and will they hold the State responsible for proving their case.
Explain your procedure on discovery? I file it as soon as I can.
How long after you file a motion for discovery do you give the prosecutor to give it to you? They usually give it to me right away.
What do you do if the prosecutor does not provide proper discovery? That won't happen here. The prosecutor and I have a good relationship.
What information would you look for in a sexual abuse case? All the records and files the State has. We won't know until we get the discovery.
Which would you prefer, an Abel or a PPG and which would pass Daubert? What are they?
Would you consider an expert to review interview tapes? Possibly, but it would depend on what I saw in the tape.
Who would you recommend as an expert for my case? I am not sure, but we do have some good doctors around here if we need them.
What would you be looking for with the interviewer? Well, I would not be looking at the interviewer. I would be looking at the child to see if they were credible.
What would you look for from the child when analyzing a video taped interview? Again, to see if they seemed credible.
What is your opinion about multiple interviews of a child accuser? That would depend on what the child said.
What experts have you used in the past in these cases? I have never had to use one.
What is a "Taint Hearing" and where did it come from? I don't know, unless you are talking about something to do with the child's testimony.
Have you ever heard of the book, "Jeopardy in the Courtroom?" No.
Would you have any problem working with someone, a non-lawyer, but someone who has a great deal of experience in child sexual abuse cases? No as long as everyone understands that I make all decisions.
If you read what I prepared, you know the charges against me. How would you defend them? We would prove that you are innocent.
In my case, should I testify or not? That depends and I can't answer that now.
If you do want me to testify, how would you prepare me? Just tell the truth.
How would you use me to prepare my defense? Oh, your assistance would be critical.
Is there any way that a Motion to Dismiss can be filed in this case? No, it is going to trial.
Can we successfully defend against these allegations? Absolutely.
What motions would you file in my case? I can't answer that right now. I would have to get into the case, but I suspect there are several we would need to consider immediately.
Are you familiar with PAS? No, what is it?
Are you familiar with the current research about sexual abuse allegations coming out of divorce and custody cases? No, but this case is about abuse and that is what we need to focus on.
Are you familiar with the S.A.I.D. Syndrome? No.

In most of the above examples, the attorneys were simply trying to sell themselves to prospective clients, but the fact is, they have no real knowledge or ability to defend a false allegation of sexual abuse. They may be very good criminal attorneys and very good trial lawyers, but when they attempt to handle these cases as they would a murder or a burglary, problems arise.

Now, let's take the same questions that were asked above, apply the proper answers and then compare the two.

Have you ever defended a client who was accused of child sexual abuse? Most said they had experience. This is absolutely untrue in most cases. Child sexual abuse allegation cases are not specific to any one area and, since most attorneys do not travel, they just do not have the exposure to these cases they would like you to believe they have. This is further proven by the majority of responses given to the following questions.
How many clients have you defended who were accused of child sexual abuse? Most could not recall. Usually, they cannot provide a response to this. You were supposed to have just accepted that they had experience in handling these cases and not questioned it.
How many cases have you won where you defended a client who was charged with sexual abuse? Most responses were, most of them. As with the previous question, no real answer was provided. Amazingly, one attorney I recall actually said, "Well, it depends on what you consider a win." "Mine all took a plea."
In your cases where clients were charged with sexual abuse, how many of them entered a plea? Most said none. Anyone who has been falsely accused of molesting a child is upset and rightfully so. They are angry and want to fight. The last thing they want to discuss is a plea. Obviously, for the most part, the attorney realizes that and, above all, they want to be seen by the prospective client as a fighter.
Are you experienced at questioning young children on the stand? Most said yes, but the truth quickly surfaced when they responded to the next question.
What do you do if questioning a child and they begin to cry? Most said they keep questioning the child. That is the wrong answer, in most cases. As soon as the child begins crying, the experienced attorney will immediately ask for recess. They do not want the jury to think they are beating the child up. There is a huge risk that a jury will convict the accused because they are angry at the defense attorney for attacking the child. Asking for recess tells that jury that you have a job to do, but that does not mean attacking or harassing the child through the questioning. In one of our prior cases, when the child began crying, the attorney asked for recess. In that case, that child had absolutely no problem at all talking to the prosecutor, but when the defense attorney began asking for details, details she could not supply, she cried as a defense, hoping the questioning would stop. In that case, after recess, the child took the stand again and, as soon as the first question was asked, she teared up again. Again the attorney asked for recess. That continued until the child realized her game was not working, the jury realized she was playing a game and even her supporting people began to become angry with her. The last time she took the stand, she went so far overboard in her responses to the point where none of her testimony had any reliability at all. One allegation she had made was that my client showered with her. During her final testimony, she got so frustrated she told the jury he showered with her, everyday, for 3 years and every time they were in the shower together, he made her "milk the cow." (Masturbate him). When that was said, the jury quickly realized there was no truth to anything she has said and the client was acquitted on all of the 14 charges that had been filed against him. Children cannot supply details to events that did not happen. Sometimes they try and sometimes they resort to tears as a defense, hoping the attorney will stop asking them questions.
What is your policy regarding a preliminary hearing? Most said they would rather wait until trial. A prelminary hearing can be an invaluable tool for the defense when available. It is one of the best opportunities the defense will have to question the accusing child, outside the presence of a jury, so they are in a much better position to be able to push for critical details.
Do children lie about something as serious as sexual abuse? Most said yes, but none expanded on the possibilities such as anger, attention, custody issues, divorce or coaching.
Why would a child lie about being sexually molested? Most simply said there were a lot of reasons. A vague response at best, but as with the above, it could be anger, attention, custody issues or divorce. There is also another possibility. Some clients are accused by multiple children. In some of those cases, detectives have actually gone to children and told them, "Your friend said he did this to you too." "Did he?" You would be amazed at the children who simply agreed, which resulted in another child and another charge.
Would Jury Voir Dire be different in a child sexual abuse case? Most said that all voir dire was pretty much the same. One of the best attorneys I have seen, defending clients who have been falsely accused of child sexual abuse, uses jury voir dire as a means of educating the jury and, he actually accomplishes more than most attorneys do in opening statements. He uses a battery of questions that deal specifically with sexual abuse, questions such as, "Is there anyone here that believes a child will not lie about something as serious as being sexually abused?" and, "Is there anyone here who does not believe that a parent is capable of coaching and influencing a child to make a false allegation?" By the time he finishes, the entire panel looks at sex abuse issues differently than they did and that is a key element, educating the jury. Jury voir dire in these cases is far different than it would be for any other criminal case, such as a murder or a burglary.
What type questions would you ask in jury voir dire where a client was charged with sexual abuse? Most could not respond at all. The questions should address sexual abuse, the fact that it is real and the fact that there are also false allegations. The questions should be aimed at assuring that potential jurors keep an open mind and are not drawn into the age old belief that, just because a child said it, it must be true.
Explain your procedure on discovery? Most said they file the motion as soon as they can. Discovery is one of the most vital parts of the defense and the attorney needs to assure that the State complies with all of it. I have seen cases where there was only a small amount of discovery, but it actually referred to other things, like video taped interviews, that were never provided and the attorney never realized existed, simply because he did not read what he had.
How long after you file a Motion for Discovery do you give the prosecutor to give it to you? Most said that was not a concern. If a defense files a Motion for Discovery, the State should fully comply within 30 days.
What do you do if the prosecutor does not provide proper discovery? Most said that was not a concern. If a defense files a Motion for Discovery and the State has not complied within 30 days, the attorney needs to either contact the prosecutor and ask for it, or file a Motion to Compel, forcing the State to comply. Once the discovery is obtained by the defense, the attorney needs to carefully analyze it, to determine if there is other information the defense is entitled to and did not get. If DFS records exist and were not provided, the defense needs to file a motion for in-camera inspection, asking the Court to review the material and then provide the defense with whatever they are entitled to.
What information would you look for in a sexual abuse case? Most said police reports, reports of the child's interview or reports of a physical exam. You should look for all police reports, interview audio or video tapes, hospital or evaluation records, pictures in the event a colposcopic examination was conducted, DSS notes, records and reports, witness statements, opinions of experts who may testify for the State, confessions or statements given by the accused, and identification of any and all persons the child accuser talked with.
Which would you prefer, an Abel or a PPG and which would pass Daubert? Most had no idea what either was. The Abel Screen and the Penile Plethysmograph are the two evaluations available to determine sexual preference, The Abel Screen has been admitted under the Daubert standard in many states and can be a valuable tool for the defense. Obviously, any attorney who is not experienced in these cases would not know that.
Would you consider an expert to review interview tapes? Most said possibly. The fact is, there are people trained in assessing a child's testimony and whether it has credibility or not and it certainly should be considered. One perfect example is a case that I looked at, two weeks before it was actually scheduled for trial. In that case, my client was charged with fondling and digitally penetrating a young girl's vagina. When I reviewed the tape, I was shocked. The child had never made any allegation. The interviewer stated, "He didn't touch you down there, did he?" and the child said, "Yes." The interviewer said, "He didn't stick his finger in you, did he?" and again, the child said, "Yes." There is a world of difference in a child making a disclosure and a child who simply agrees with what an interviewer "suggested" happened. The sad thing is, the attorney in that case has never seen the interview video, never had anyone else look at it and had no clue that it had been said in that manner, yet he was ready to go to trial.
Who would you recommend as an expert for my case? Most said there was probably someone local, if they needed them. There is an art to properly reviewing a video taped interview to establish credibility and that are national experts who have a great deal of experience in doing exactly that, but an attorney who is not well versed in these cases would not know that.
What would you be looking for with the interviewer? Most said they would not really be concerned with the interviewer, but rather the child. It is vital to look at the interviewer. You need to look for the use of leading and suggestive questioning, evidence of multiple Interviews, a preconceived idea of guilt on the part of the interviewer toward the accused, where and how the interview was conducted and, did the interviewer adhere to recommended protocol. Again, an inexperienced attorney will not know that there is an accepted protocol.
What would you look for from the child when analyzing a video taped interview? Most said they would look to see if the child appeared to be telling the truth. You look carefully at the child's ability to give a narrative about the alleged abuse and their ability to provide details.
What is your opinion about multiple interviews of a child accuser? Most said it depended on what the child said. Multiple interviews should be avoided. They serve as coaching tools for the child. Time and again, children pick up on, "This keeps going on because I am not saying what they want to hear, and it won't stop until I do, so..."
What experts have you used in the past in these cases? Most said they never used one. Experts could include those who evaluated the accused, evaluated the child accuser, experts on interview protocol, experts on pedophiles and grooming, experts on police interviewing and interrogation and medical experts to rebut the State's experts.
What is a "Taint Hearing" and where did it come from? Most said they did not know, but suspected that it had something to do with the child's testimony. The Taint Hearing came from the New Jersey Michael's case and it tells the Court that it is impossible to determine if the child is giving an account of something that actually happened, or something they learned during the interview process. That case has been invaluable to those defending allegations of child sexual abuse and any attorney with any experience defending these cases will know about the Michael's case and the Taint Hearing.
Have you ever heard of the book, "Jeopardy in the Courtroom?" Most said no. This book, written by Doctors Steven Ceci and Maggie Bruck, was published by the American Psychological Association and is considered the definitive in a child's testimony. No one who has been around these cases has not heard of that book or Ceci and Bruck.
Would you have any problem working with someone, a non-lawyer, but someone who has a great deal of experience in child sexual abuse cases? Most said they would have no problem, because they knew that was what the prospective client wanted to hear. Once retained, normally they will want nothing to do with an outsider, especially a non-lawyer and, in many cases, they will actually get defensive at anyone trying to assist.
If you read what I prepared, you know the charges against me. How would you defend them? Most said they would prove the client was innocent. They know nothing about the case at that point, yet they are telling the client they will prove innocence simply because they know that is what the client wants to hear.
In my case, should I testify or not? Most said that they could not answer that question at that point. In these cases, make no mistake, the accused must testify. The case will come down to the credibility of the accused against that of the accuser. If the child tells the jury that the accused molested them and the accused does not respond, you can almost be assured of a conviction.
If you do want me to testify, how would you prepare me? Most said, just tell the truth. There is an art to preparing someone to testify properly and it is far more involved than, tell the truth. Every eye in the jury will be on the accused during the trial. The accused needs to know how to sit properly in the courtroom, not react to testimony and to look directly at the jury when testifying. The jury has the power to send the accused home or to prison and the accused must identify with them.
How would you use me to prepare my defense? Most said the prospective client's assistance would be critical. Normally, the attorney knows that is what the client wants to hear, but it is quickly forgotten once the attorney is actually retained.
Is there any way that a Motion to Dismiss can be filed in this case? Most said no, the case would go to trial. That is not always true. There is the possibility of a Taint Hearing or a Credibility Hearing.
Can we successfully defend against these allegations? Most said absolutely. They know nothing about the case, yet they are sure they can defend it, so again, that was what they thought the client wanted to hear.
What motions would you file in my case? Most said they could not answer that right now, but suspected that there were several they would need to consider immediately. This is simply telling the client they need to get on the case immediately.
Are you familiar with PAS? Most said no. Parental Alienation Syndrome was a term that was coined by Richard Gardner, M.D., deceased. Parental alienation happens when one parent attempts to turn their child against the other parent and this is frequently seen in divorce and custody cases and, many times, it is the very reason false allegations of abuse are made. The problem is, although parental alienation does exist, it has not reached the standard in the medical or scientific community where it was classified as a "syndrome."
Are you familiar with the current research about sexual abuse allegations coming out of divorce and custody cases? Most said no. There is been a great deal of research into false allegations of abuse, why children lie and where false allegations typically come from, as well as what is accepted and standard protocol for interviewing children and investigating these cases.
Are you familiar with the S.A.I.D. Syndrome? Most said no. The S.A.I.D. Syndrome has been accepted as a recognized "syndrome." I means Sexual Allegations in Divorce and there has been a great deal of research into the subject.

As I have stated time and again on this website, the accused is placing their life into the hands of their attorney. They should take whatever steps are necessary to assure that they have the best representation available. It does take effort, but that effort is far less then trying to overturn a conviction.

Now, getting through the questions was only step two in the overall. Once the initial meeting between my client and the attorney ends, as previosuly stated, the client will rate them. One point I want to make here is, in every case where a client has successfully retained an attorney using this process, the attorney chosen gave honest, sincere answers to the questions they were asked and, in most cases, the answers were, "I don't know." They were not trying to impress the client by providing responses they really knew nothing about. Also, in most cases, the lawyer chosen was young and had been practicing for 5 to 8 years. They were not part of a law firm where they were drawing a salary. They were sincerely trying to establish themselves and build a practice.

Once the client has met with all attorneys, rated them and selected a few that could be considered, they begin the final phase. They return to those few and provide them with something specific to their case and their defense to see if the attorney can analyze it properly. As an example, in one case, the client had a 37-page deposition that had been taken earlier in his case. If someone "skimmed" that deposition, they would never see the one important aspect and that was, there is no way the client could have been guilty. It was there, but it was toward the end and it amounted to one short sentence, buried in a statement. That deposition was provided to four attorneys by that client. Only one picked up on the defense. The client retained that attorney and, from that point forward, the defense was in the best possible hands. There was no ego on the part of that attorney and he had a desire and willingness to defend. That is the key and that is reached, usually, through process of elimination. What you need is out there. It will take effort to assure that you get the right attorney but, just settle and you are risking your life. Keep in mind that we have seen some lawyers get through the first phase fine, but turned out to be completely inadequate in the final phase.