Procedure for Retaining a Proper Attorney
When Falsely Accused of Child Abuse
Provided by Allen N. Cowling
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.
You have accessed one of the many pages here at the
Cowling Investigations, Inc., a False Allegation Defense Website. For an explanation of how we assist
our clients who have been falsely accused, see Our Expertise, We Can Help. If you have been
falsely accused, see What to Do - What Not to Do When Falsely Accused.
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