Is Your Attorney Honestly Defending You?

For years, I have had the displeasure of working with some of the most inept attorneys in the country, and in most every case, ego was their problem. They were the master and no one was going to tell them how to prepare a defense or how to defend a client at trial. The problem was again, in most every case, we are talking about good criminal attorneys who are in reality, excellent litigators, but who fell completely apart when they were defending a client who had been falsely accused of child sexual abuse. Many of those attorneys relied on their "Courtroom Technique," or their "Courtroom Presence" to win their case. After all, that has worked in the past, however, none of them ever got the message; a crying child on a witness stand outweighs all their "techniques."

When most people who have been falsely accused attempt to retain an attorney, the first thing they hear is, "Oh, I handle these cases all the time." Unfortunately, that is an outright lie and they say it simply to get the client onboard. Think about something carefully. I fly an average of 150,000 miles with Delta Airlines every year and am very lucky if I manage to get back to Mississippi 4 days a month. The balance of the time, I am working for falsely accused clients all over the world in case after case and have been doing that for the past 19 years. Working cases in that manner is where a large portion of my experience comes from. I have participated in over 500 cases and just over 230 trials in the past 19 years and of those 230 some trials, I have had 5 clients convicted.

One thing that is certain; No one area has all the sexual abuse allegations and even in those areas that may see several cases a year, those people who were accused did not all run to the same attorney, so my question is very simple. Regardless of what the attorney may say, where in reality did they get their experience in handling these cases?

I have had many clients over the years interview many attorneys in an attempt to retain the right one. The policy I use is simple. I prepare a short outline of their entire case and they submit it to a number of attorneys. That document basically states, "This is my problem." "Is this a case that you believe you could successfully defend and if so, I would like to arrange an appointment to discuss your possible strategy." That short document says it all and when and if you meet with the attorney, it is up to them to explain to you how exactly they would plan the defense. This procedure far outweighs just walking into some attorney's office, handing them a retainer and asking them to defend you. In that manner, how do you even know what you have representing you?

Now, many clients who have used the above system have interviewed quite a few attorneys before actually selecting one. When they meet with each attorney, they have a prepared list of questions to ask, consisting of:

Just based on the four simple questions above and the normal responses received, the attorneys are trying to sell something, but without a word of truth. Each question has relevance and each answer is well known even to those on the edge of defending and understanding false allegation cases. For example, Ceci and Bruck are Steven Ceci, Ph.D., and Maggie Bruck, PhD. They are research psychologists who have conducted study after study in many aspects of child sexual abuse allegations. In addition, they co-authored "Jeopardy in the Courtroom," a book published by the American Psychological Association and considered to be the definitive of a child's testimony in court.

So, why would an attorney lie about having experience defending false child sexual abuse allegations? They want you as a client and they would not really feel all warm and fuzzy giving you a response that might cause you to walk straight out the door.

The next question is, why would any attorney who is truly interested in defending their client in a false allegation of child abuse reject help from any outside source? Over the years, I have found the answer to that question to be very simple; An attorney that honestly works for a client welcomes any and all help available to them. One that refuses or rejects that help is normally one who does not want that outsider to explain to the client, "You have no defense," or "Your attorney is doing nothing."

About 25% of the work I do is for people in prison who have been convicted based on a false allegation of child sexual abuse. In every case I have worked, the conviction was actually because of ineffective assistance of counsel, one way or another. Never fail to understand that most everyone in prison today had an attorney. They are in prison and their attorney continues their practice and continues to go home nightly to their family, a good meal and warm surroundings.

Now, the next question, "What if, during the initial interview with the attorney, they say they are willing to work with anyone?" Again, are they making a statement just to get you to retain them or are they serious? One perfect example: In a prior case, my client was changing attorneys. He interviewed several and wanted me present when he talked to the one he thought would be best. When I met the attorney, he was warm and friendly. He said it would be an honor working with me because of the prior experience I had. Those words convinced the client he had the right attorney and he retained him. During the next year my client was most impressed with his attorney because every motion the attorney prepared was sent to the client for his input, therefore, the client felt like an important part of his own defense. About a year later, the client was going to have a hearing on five motions, one asking that the case be dismissed. The client wanted me there. I agreed, but told the client not to acknowledge me in the courtroom because I would be seated on the opposite side hearing what I could from the accuser's parents. The hearing date and time arrived. I was in the courtroom seated by the parents of the accusing children and listening to everything they said. A short time after I got seated, my client and his wife entered the courtroom and seated themselves. Approximately 10 minutes later, their attorney arrived, shook hands with the client, then walked to the defense table. Shortly thereafter, a representative from the prosecutor's office arrived. That woman was not the prosecutor assigned to the case. The prosecutor assigned was in a trial in another courtroom and this woman was simply a stand-in for the hearing. She asked the defense attorney, "What are we here to argue?" The expression on the defense attorney's face went blank and he had no answer. He reached down on the defense table, picked up a file and started thumbing through it. Just at that point, someone called the prosecutor who was talking to the client's attorney and she walked across the courtroom, conducted a short conversation and returned to the defense attorney stating, "I am sorry, now what are we here to argue?" Again, the defense attorney had no response, picked up the same file he had earlier and started thumbing through it. At that time the judge entered, the prosecutor went to her table and the defense attorney stood at the defense table. Before anyone had a chance to say anything, the defense attorney asked the Court, "Your honor, I would like to know who those two men are sitting in the courtroom and what business they have being here." One of those two men was "me." I would have been humiliated if I would have had to explain who I was and what I was doing there, sitting beside the parents of the accusing children. Thankfully, the judge responded, "Sir, if at the completion of this hearing you would like to ask them that question personally and, if they choose to, they can answer, however, this is a public courtroom and they have every right to be here." Then the judge asked the defense, "What are we here for?" The defense attorney told the Court it had filed the five motions and the Court said it was ready for oral arguments. The defense attorney said, "Your Honor, I have nothing to add other than what is in the motions." The prosecutor said nothing and the Court reaffirmed that the defense had no argument other than what was in it's motions. At that time, the Court denied all motions and that ended the hearing. Now, the point was, the defense attorney could not respond to the prosecutor when asked what they were there to argue and he had no arguments for the Court because "He" was not the one who prepared the motions and obviously, he had no idea what was even in them. Just after leaving the Courtroom, my client told him that one of the "men" he was attempting to have identified was "Allen." The defense attorney immediately went into, "Well, tell Allen I am sorry I did not recognize him, and tell him how good we are doing." Needless to say, my client changed attorneys quickly. The lesson here is, watch what is going on. In that case, my client was impressed because he thought his attorney was making him an important part of the case, but in reality, the person contacting the client was the assistant who was actually preparing the motions and not that attorney who had met me a year earlier, was honored to have my assistance, yet never called me once.

Had my client in the above case gone to trial with that attorney, there is not much doubt he would have been convicted. His attorney was very good at lip service, but very poor at preparing a defense.

Although the above reflects 4 very simple questions, they are very serious issues you need to know. If you have been falsely accused of something as serious as molesting a child, you best make sure that you have an attorney who believes in your innocense and is ready and prepared for the fight of their lives, or you stand a good chance of being convicted and spending years in prison. So many defense attorneys "do not want to put their client on the witness stand." That may well be the right approach in a murder, a robbery, an embezzlement or some other crime, but it is not the proper advice in a child sexual abuse allegation. Simply put, that case comes down to he said/she said and who has the credibility. If a child testifies and gives an absolutely ridiculous story and the defendant fails to testify, there is a better chance than not of conviction. The jury heard one story only and, ridiculous or not, there was nothing to dispute it.

My best advice when dealing with an attorney is by assuring that everything said is supported by a paper trail. For example, I have a client whose attorney told him they needed to depose a deputy, but when it was learned that deputy no longer worked for that sheriff's department, suddenly the attorney changed his story and told the client it would be best "not" to depose that deputy because if they did not, the prosecution could not bring anything up at trial that was in that deputy's arrest report. That was one of the most ridiculous statements I have ever heard. I asked the client if they had that information in the form of an email and they said no, he just told us that on the phone. That is "not" the right answer. If a person is convicted, much of their success at having that conviction overturned will be based on proof they can provide. That means if you mount an argument of ineffective assistance of counsel, the burden of proof will be on the person convicted and regardless of what they were "told" by their attorney during their defense, that is not evidence, but something in writing could easily be. Make sure that you have a good paper trail between you and your attorney.

In reality, to a person falsely accused of child sexual abuse, your very life will be in the hands of your attorney. What shape will you really be in?

Shortly after your attorney is retained, usually, they will file a Motion for Discovery, requesting that the State provide all material the defense is entitled to.
Your attorney may have an associate or a private investigator they have worked with interview potential witnesses, take statements or complete other tasks in order to prepare the case for trial.
When your attorney does obtain the discovery from the State, they may or may not actually read it. Some attorneys have their paralegal or associate go over it. Many do not read it when it is received, but they will just prior to trial when they are preparing their client's defense.
Then begins the waiting game. Many defense attorneys believe that the longer the trial is delayed, the better off the defense will be. Some evidence can change, some can be destroyed or disappear and the memory of some witnesses can fade, even to the point where they may no longer have credibility. In most cases, waiting can be an excellent strategy, so that is usually a normal practice.
Just prior to the trial, the attorney will review all material and prepare their case. Now, in reality, that makes sense. Say an attorney has all the defense material, but the trial won't even be scheduled for months. It can be a complete waste of time to break everything down so far in advance of trial, especially when some circumstances could actually change so again, this is more or less a standard practice.
Normally, during the time between the arrest and trial, most defense attorneys do very little. In reality, there is very little for them to do. They follow a set of guidelines, if you will. They file their discovery motion, they have someone interview witnesses, they investigate the case, they wait for trial and then they prepare. Some very good criminal defense attorneys defend clients in exactly this manner and, in most criminal cases, there is absolutely nothing wrong with this approach at all. It works in most cases, but it is not the path that should be followed in a case where an allegation of sexual abuse has been made.
Representing the falsely accused in a child sexual abuse case is not an easy task, simply because defending these cases is far different than defending any other case, civil or criminal. These are the only cases where the accused is automatically "guilty" at the time the allegations are made. In any other criminal case, the accused is "innocent" until proven guilty, but here, the accused must "prove" their own innocense, or face years in prison for something they did not do. In reality, there are very few attorneys who specialize in defending child sexual abuse cases so, when retained to assist anyone who has been falsely accused, the first three things that I attempt to determine are:
- What has been done by the attorney since they were retained?
- Exactly what is the defense strategy?
- What can be done to correct any possible problems, if they exist?
While false allegations of child sexual abuse are nothing short of an epidemic in this country, they are not specific to any one area. For example, if I wanted to gain experience in defending the falsely accused and I remained in the Jackson, Mississippi area, I may see one, possibly two cases in my career, hardly enough to provide me with any real knowledge. The only reason that I have gained any expertise is that I have been willing to travel in my work, representing clients all over the world and have done this exclusively since 1989.
Obviously, most attorneys do not travel and it is doubtful that they have any real experience defending false allegations of child sexual abuse, regardless of what they may tell a client. Granted, there are some defense attorneys who were former prosecutors and, in that capacity, they may have been directly involved in several child sexual abuse cases, but prosecuting and defending these cases is as different as night and day.
As I said, most attorneys do not have experience in defending false allegation cases and, as a result, many treat them as they would any other criminal case. They are not, mainly because you are dealing with children, emotion and usually a group of people who are firmly convinced that the accused is guilty. The old, "Let's wait and see what the State has before we get excited," can be a fatal mistake. While that "theory" may work well when defending someone accused of murder or burglary, it is the worst approach imaginable in an allegation of child sexual abuse. For example, if I was accused of murder, nothing is lost by "waiting." Circumstances will not change. Dead is dead, regardless of how long I wait, so I really lose nothing and delaying could actually be beneficial. In a child sexual abuse case, "waiting" can quickly prove fatal to the accused, for several reasons:
- A child, that is lying about being abused, will not hesitate to tell other lies and, where an accused was facing a single charge, "waiting" can easily result in them facing multiple counts, primarily due to improper interview techniques and the desire by the "experts" to "validate" the abuse and not find the truth. I told you about the worst case I have ever been involved in. The accused, in Cleveland, Ohio, found himself facing one allegation of improper touching when he allegedly showered with his young step-daughter. He retained Cleveland's best known criminal defense firm when the allegation arose, but absolutely nothing was done as they patiently waited for the State to complete their investigation. Approximately one month after the original allegation arose, the accused found himself facing 14 indictments; 12 for GSI (gross sexual imposition) and 2 for rape. In Ohio, rape is penetration, regardless of how slight and, if convicted, it carries mandatory life without possibility of parole. At that point, his defense attorney's best advice was to accept an 8-year plea because he could not win and would go to prison for the rest of his life. A new defense team was retained and, following a great deal of work and a three week trial, he was acquitted on all charges.
- There is a possibility that, when the total allegations surface, the accused will be jailed without bond, or with a bond that they cannot afford. I had a Michigan case where, when the allegations surfaced, the defense attorney wanted to wait until the preliminary hearing was completed before preparing a defense. In that particular case, based on the initial allegation, the accused should have been tested immediately, psychologically and sexually, but unfortunately the defense attorney had no knowledge of any of the testing available, even though one of the best facilities was right there in Michigan. To his credit, once the attorney was made aware of the benefits, he agreed, but he was unable to schedule anything for his client until after the preliminary hearing, which was only a few days away. The problem was, the accusing child made more allegations at the preliminary hearing, the accused's bond was revoked and he was jailed pending trial, so he was unable to assist in his own defense in any manner and, testing that could have proven beneficial, then became impossible. The accused in that case was found guilty and sentenced to 45 years.
In the majority of cases around the country, child accusers were probably interviewed by parents, possibly a police officer or detective and then by the interviewer at CPS. Multiple interviewing tends to lock kids into stories and it is rare that they will suddenly say, "Okay, I lied." "Nothing happened." They become trenched in their story and there is a possibility that they may continue discussing it, therefore, the allegations themselves could get worse. As an example, let's say a parent begins to see some inconsistency in their child's story and confronts them. They may well change and even add to the allegations, so that is at least a possibility. In addition, consider that the local therapist they are seeing could also assist in increasing the allegations.
If the strategy of any attorney, defending a false allegation of child sexual abuse, either is or was to wait until they determine what the State has in the way of evidence before beginning a defense, they need to understand the mechanics of what happens in these cases when a child is lying. A false allegation of sexual abuse is a lie and more often than not, that lie will grow following the initial disclosure by the child. An accused can easily find themselves facing one allegation one minute and multiple allegations the next. In addition, where there may be one child making allegations initially, it is easily possible for several others to make allegations as time passes and, with "experts" working with the child or children, there is no telling what the final outcome could be.
False allegations do grow and they grow many times because a child believes that they must keep refreshing, or adding to their story to be believed and to keep the attention they are getting. The unfortunate thing is that the "professionals" who deal with these children are not looking for the truth, just information to validate the allegation.
The key to breaking down a false allegation is to carefully analyze every statement a child has made, and compare each individual allegation against the other. For the most part, a description of real abuse remains constant where a false allegation tends to change like the wind. It is also beneficial to carefully examine exactly what was taking place in the child's life when the initial disclosure was made.
Many false allegations of abuse would be seen for what they really are quickly, if the "professionals" who interviewed the children did so properly and did not simply accept a story, at face value, as being the complete truth. The real problem is, when a child is lying about abuse, most of the people interviewing them will believe the child has not told everything and will continue the interviews until they think they got it all. This takes time, so as the defense waits to see what the State has, clearly, the State is simply attempting to build a case.

What experts has your attorney previously used in cases where allegations of child sexual abuse have surfaced? This is a key question because experts can play a vital role in these cases. They can actually dispel allegations of child sexual abuse, but many attorneys have never used experts and have no idea even as to the proper procedure for assuring that they get the correct expert.
Exactly what procedure does your attorney use to select experts, if they do use them? Again, most have no clue other than to ask another attorney, possibly ask a friend, who may be a psychologist, or simply to look for a name in the "yellow pages."
Is your attorney familiar with the "Parental Alienation Syndrome," or "PAS?" If they are not even aware of PAS, they may not understand, or even believe, that one parent is actually capable of instigating a false allegation of sexual abuse through their child and that can certainly lead to future problems.
What is your attorney's stand on allowing you to interview with social services? In many cases, the response from the attorney is "automatic" and amounts to, "No way." Each case is different and each must be addressed accordingly, so staying away from social service interviews is not always the best solution.
What is your attorney's stand on accepting a "plea?" Many attorneys will tell their client that it is far better to accept a light sentence, or in some cases, even probation, rather than risk going to prison for years if found guilty by a jury. The problem with this is, I have yet to talk with anyone who did accept a plea and then later thought that they made the right decision. Simply put, a plea, regardless of what it is called, is an admission of guilt and, regardless of the sentence involved, the accused needs to understand that they, most probably, will be forced to register as a sex offender for the rest of their life. A plea may sound appealing and like an easy way out, but consider what affect it would have on someone's entire future.
Another factor that could be a problem is local politics. A local lawyer may not want to "rock the boat" because they have to continue to practice long after the case for the accused ends.
Your attorney must be able to properly examine a child witness, without having a judge or a jury believe they are beating up on the child. They must be forceful in assuring that they have all discovery. They must be able to attack a prosecutor, police officer, DSS worker, doctor, therapist or anyone else involved in the State's case and, believe me, that is not an easy task for some local attorneys.
Any attorney with experience defending these cases realizes that a child, on the witness stand, may quickly resort to tears when being questioned. That is usually not an issue with the State, simply because the State is not putting the child under any pressure by asking them to supply details. A child that is lying cannot supply details to events that never took place, although they may try. If an attorney has a child on the stand who does resort to tears, some become frustrated and stop the examination and some charge ahead, upsetting a jury. One of the best attorneys I have ever worked with would immediately ask for recess at the sign of the first tear and would continue to do that every time the child got upset. On one occasion, he did it 8 times before the child realized it was not working and then the attorney carefully and methodically destroyed their allegation.
Any attorney with experience defending these cases realizes that jury voir dire is one of their best opportunities to "educate" the jury and take a great deal of the "sting" out of the allegations. Questions asked in these cases are far different than any other criminal case.
Any attorney with experience defending these cases looks carefully at their client to determine what, if any, testing and/or experts would be necessary.
Any attorney with experience defending these cases has knowledge of a "taint" hearing and the updated laws that apply to filing a motion to have the child accuser evaluated.
Any attorney with experience defending these cases does not accept expert opinions from the State, lab or otherwise, at face value, but has their own expert review all discovery and most especially the opinions of the State's experts.