This is BY FAR my favorite blog post I’ve ever had the opportunity to write, because I get to discuss a case that I’ve poured my heart and soul into over the last three years. Yesterday, the Court of Criminal Appeals affirmed the trial court’s court grant of post-conviction relief to a man that has been in prison nearly twenty years. I’ve thought about this case nearly every day since I was appointed in July 2012, and after being long-forgotten in the justice system, I am so pleased that Curtis has received a little justice.
Let me preface by saying, that the State of Tennessee can file a Rule 11 Application for Permission to Appeal. They can also decline to file a Rule 11. If they file a Rule 11 application, the Tennessee Supreme Court would then have to determine if they want to accept the case. So the fight isn’t over, but he’s a little about the CCA’s recent ruling:
Curtis Bolton’s two year-old son, Cody, died from a traumatic head injury the day before Thanksgiving in 1995. He had sustained a severe blow to the head. Curtis’s girlfriend initially stated that he fell from a high chair while Curtis went to the hospital to treat an injury he received at work earlier than day. She was the child’s caretaker while Curtis worked during the day. She had also given birth to her first child approximately four weeks prior. At trial, the State treated her like the victim, discussing her episiotomy and how her petite stature. After she was charged with murder, the girlfriend changed her story, stating that Curtis had thrown the baby into a wall several times.
This was back in 1995. Curtis was offered a twelve-year sentence, or he was told, he could go to trial and be parole eligible after 25 years. He had never seriously violated the law before this incident; he believed he might not be paroled at 25 years, but he didn’t know he would have to serve 51 years before becoming parole eligible. In fact, the law changed in July 1995, and once he convicted, he learned that he would have to serve a minimum of 51 years.
Curtis and his co-defendant girlfriend both went to trial. His attorney never filed a motion to sever, never consulted with a medical expert, and failed to object to numerous instances of prosecutorial misconduct throughout the trial. Prior to trial, Curtis and his attorney believed that the co-defendant would testify, and that she would say the child fell from a high chair. (This, despite her statements to police that Curtis threw the child into a wall.) The trial began and the State told jurors they would hear from the girlfriend because THEY were going to call her. The girlfriend was the last witness in the State’s case-in-chief. She and Curtis were both on trial for the felony murder. She left the defense table and testified for the State. When she finished, the State announced to the jury that, “he was the principal and she was merely an aider and abettor…” The State made their point, they believed the girlfriend’s testimony. They also relentlessly pegged her as the victim of a controlling, no-good boyfriend who “robbed her of her youth,” by getting her pregnant at age 17. Curtis made them “live at the mercy of the taxpayers.” During the onslaught of attacks from the DA and the co-defendant, Curtis’s attorney never uttered an object - never moved for a severance.
I wish I had time to detail all the additional facts, but if you want more details (and you know you do), you’ll have to just skim or read the opinion. You can find it here.
The CCA held that the trial court was correct: Curtis received ineffective assistance of counsel due to her attorney failing to move for a severance and he was prejudiced by counsel’s inaction. “Once it became known in the present case that the codefendant would testify for the State, any basis for sound trial strategy for proceeding in a joint trial disappeared.” The Court found that once it become clear that the State would be a proponent for the codefendant’s testimony, trial counsel should have realized the inherent prejudice in having the codefendant, on trial for the same offense, testify against Curtis. The State’s endorsement impacted the girlfriend’s “reliability and credibility in a profound manner.” If the case had been severed, the prejudice would not have existed in the same way. The CCA also found that Curtis was incorrectly advised about his sentence, which was deficient performance by trial counsel, but that he wasn’t prejudiced because he wouldn’t have plead guilty either way.
Sooooo kids, that’s the latest ruling. I’d love to write more, but I’ve got boatloads of client letters to get in the mail. Fingers crossed and positive thoughts for the future!
Here's the opinion: http://www.tsc.state.tn.us/sites/default/files/boltoncurtisopn.pdf
Imagine you’re staying in a house with family, when a non-family member brings over a child that you’ve never met. In the house are your mother, brother, grandmother, brother’s girlfriend, and your girlfriend. The child belongs to your brother’s girlfriend. The child had been scalded in a hot bath at a different location. You were not present, nor had ever been to the location where the child was scalded. At some point, you see some of the burns to the child (who is the care of her mother), and go purchase medical supplies to treat the injuries. (Mother and boyfriend haven’t done anything to assist child.)
What do you do? Do you take the child away from her mother and take her to the hospital? No one else in the household, including your own mother or grandmother, took the child to see a doctor – should you? You make an effort to get ointment and bandages for the child, but are you breaking the law if you don’t personally take the child to the hospital? Those are just the sort of questions that arose in State v. Donald Higgins.
In Tennessee, penalties for aggravated child abuse and neglect are the same. That means the punishment doled out for failing to do something is the same as the punishment administered for actually inflicting an abusive punishment. This is one of those laws that just feels unfair. In other words, your failure to act regarding a three-day old burn is treated the same as if you personally inflicted that burn on the child and then take him to the hospital. The child abuse and neglect statute, TCA 39-15-402 reads as follows:
(a) A person commits the offense of aggravated child abuse, aggravated child neglect or aggravated child endangerment, who commits child abuse, as defined in § 39-15-401(a); child neglect, as defined in § 39-15-401(b); or child endangerment, as defined in § 39-15-401(c) and:
(1) The act of abuse, neglect or endangerment results in serious bodily injury to the child;
(2) A deadly weapon, dangerous instrumentality or controlled substance is used to accomplish the act of abuse, neglect or endangerment; or
(3) The act of abuse, neglect or endangerment was especially heinous, atrocious or cruel, or involved the infliction of torture to the victim.
The neglect statute also requires that the child be knowingly neglected and that the neglect adversely affect the child’s health and welfare. 39-15-401. In Mr. Higgins’ case, he was charged and convicted of aggravated child neglect because the child suffered seriously bodily injury. He was sentenced to twenty-eight years in prison for not taking a child, that he had no right to control, to the hospital.
On Tuesday, the Court of Criminal Appeals reversed the jury’s conviction, finding that there was insufficient evidence to support the conviction. The court first looked at whether Mr. Higgins fell under loco parentis, meaning he would have a legal duty to the child. The panel concluded that at all times the child was under the exclusive care and control of her mother, who resisted suggestions that she be taken for medical treatment of her burns. Mr. Higgins, after viewing a portion of the injury to the child’s leg, told the mother to take the child to the doctor, but she refused.
The court also disagreed with the State’s argument that Mr. Higgins was criminally responsible for the neglect of the mother and boyfriend. Criminal responsibility requires the defendant to “knowingly, intentionally, and with common intent united with the principal offender in the commission of the crime.” Higgins at 9. At trial and on appeal, the State argued that Mr. Higgins was trying to protect his brother and that he had seen the injuries more than the single encounter, whereafter he went out and purchased supplies. The CCA found that the State was merely speculating and presented no proof during trial to support its theory. The State’s theory that Mr. Higgins discouraged medical treatment was not supported by any evidence, and the CCA determined that he was the only person that attempted to provide any medical treatment.
The Higgins case is scary, because under the theory employed by the prosecutor, any person on the street that comes into contact with a visibly-injured child, but does nothing, could be subject to prosecution. If the child’s parent refuses care, do you rip the child from their arms? Must you call the police? Does it depend on the severity of the injury? None of these answers have clear answers. No one wants to see an abused child, but at what point do we limit who should be held responsible? Read the full opinion at
We are mixing it up this Monday morning, featuring a little favorable federal case law. Attorneys in the Sixth Circuit so rarely receive good news (if they were collectively a character on the Oregon Trail they would NEVER make it to the West Coast, losing their lives time and time again to dysentery, or Scarlett Fever, or the Plague), that it probably feels like Christmas in July for Frank Randolph. (Frank’s appellate counsel was a firm in Atlanta that has also represented T.I. and Ben Roethlisberger.) Frank’s the defendant in United States v. Randolph, and he likely celebrated over the weekend, because the Sixth Circuit reversed and remanded a judgment of acquittal in his favor. Let’s discuss Frank’s case:
Frank was a family man, and to his detriment, he became entangled in his half-brother’s Pulaski, Tennessee, drug-trafficking operation. Through the use of confidential informants, video and wiretap surveillance, the Government determined that Frank was helping his half-brother hide drug proceeds. In 2011, agents seized firearms and cash from Frank’s house – approximately $165,000 in property, including $2,100 in marked money that had been part of a controlled buy. Frank was charged in a Second Superceding Indictment with:
1. Conspiracy to violate federal drug laws;
2. Conspiracy to commit money laundering;
3. Knowingly possessing firearms in furtherance of drug trafficking;
4. Accessory after the fact; and
5. Perjury at the initial appearance.
Frank tried to work out a plea agreement, but it fell through because he refused to admit that he had obtained controlled substances for his half-brother. Frank went to trial with two other defendants, and he was found guilty of drug trafficking, money laundering, perjury, and aiding and abetting. The jury determined that Frank was “guilty” of drug trafficking, but when addressing the sub-questions, of which drugs - cocaine, cocaine base, or marijuana - the jury selected the “None” box. Very confusing. Frank’s range of punishment began at 97 months, but the District Judge sentenced him to 70 months. Frank filed a motion for new trial and judgment of acquittal – how could he be guilty of a drug trafficking conspiracy that didn’t involve any of the charged drugs?
The Sixth Circuit found that Frank had a valid argument and ordered that his conviction for trafficking be reversed because, “…the jury could not have found him guilty of the conspiracy while simultaneously determining that the conspiracy did not involve any of the charged drugs.” Randolph at 6. In federal court, a drug trafficking conspiracy requires 3 things: (1) an agreement to violate drug laws; (2) knowledge and intent to join the conspiracy; and (3) participation in the conspiracy. Further defined, the jury had to find that Frank, “knowingly or intentionally … manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.”
So what’s the real issue for Frank: Whether or not the jury’s judgment form in his case is inconsistent, and, if it is inconsistent, is it reviewable?
Historically, the courts have elected not to review inconsistent verdicts. The Sixth Circuit, cited Dunn v. United States, a 1932 SCOTUS decision, “that a verdict may have been the result of compromise or of a mistake on the part of the jury, but that verdicts cannot be upsets by speculation or inquiry into such matters.” The decisions are generally non-reviewable because the defendant would be protected against irrational jurors through the process of trial and appellate review of sufficiency of the evidence.
Frank wasn’t worried though, because there are two scenarios in which inconsistent verdicts may be reviewed: (1) when they “are marked by such inconsistency as to indicate arbitrariness or irrationality,” and (2) “where a guilty verdict on one count necessarily excludes a finding of guilt on another.” Frank’s case was a little different. Here, the Sixth Circuit deemed there was “an internal inconsistency in the same count as it relates to the same defendants, in the same verdict.”
After going through analysis of how sister circuits have handled the same scenario, this panel decided that Frank’s verdict was inconsistent to the point that a judgment of acquittal should be granted – the jury’s special verdict finding negated an essential element of the offense. Good news, Frank, you’re getting a new sentencing hearing, sans Count One!
For all the details, including the nitty-gritty on citations, and three smaller issues that didn’t work out so well for Frank (did the trial court err in the exclusion of a special agent’s testimony on laundered funds? did the trial counsel err in determining Frank laundered over $200,000? And did the trial court err in denying Frank the “minimal role” reduction?) see the full case here: http://www.ca6.uscourts.gov/opinions.pdf/15a0163p-06.pdf
Today’s decision in State v. James Thomas brings the third reversal, in about the last month, for prosecutorial misconduct in cases tried in Davidson County. (Notably, none of the DAs that argued any of these cases are still employed with the District Attorney’s office in Nashville.) It’s nice to see the Court of Criminal Appeals setting limits to what prosecutors can argue, because once these statements are made to jurors, you can't un-ring the bell.
To me, this case seems less egregious than the others, but you can decide.
Here are the facts:
M.B., the victim, testified that she dated the defendant for approximately two years when they broke up. During that time, he had been accused of domestic assault, and they had separate and reunited. During December 2009, they were living together, but the victim had plans to move out, and the understanding was that they were no longer in a romantic relationship.
M.B. stated that the Defendant would text her requesting sex when he was on the couch and she was in the bedroom. She stated that during the month of December 2009, she was forced to have nonconsensual sex with the Defendant on five separate occasions. On the night of December 27, 2009, she testified that the Defendant came into the bedroom and when she refused his requests, he retrieved a gun, and said he had a bullet in the gun for each of them. The Defendant put away the gun, returned to the bed, and engaged in nonconsensual sex with M.B.
The next day, M.B. went to the doctor who diagnosed her with pneumonia, but she never mentioned the rape. That night, the Defendant beat her up, but when taking out the order of protection, the victim never mentioned the rape. After telling a police officer during a domestic disturbance call, M.B. was interviewed by a sex crimes unit detective, who testified that the victim was very emotional during the interview, and it is the detective’s job to determine which victims are credible so the case can be prosecuted.
The State presented texts from the defendant to the victim, but the victim’s texts to him were “unavailable.” The State played the interview of the Defendant, where he denied nonconsensual sex, but agreed that he and the victim had fought. The Defendant testified at trial that the incident did not occur in the way the victim had described. The Defendant was convicted and sentenced to 16 years.
The CCA reversed on two grounds: the detective should not have been permitted to testify (over the objection of trial counsel) regarding the victim’s credibility, and the prosecutor made improper statements during Closing Argument.
First, the CCA disagreed with the State’s argument that, asking a sex crimes detective about the cases she chooses to prosecute and the legitimacy of the case before the jury, fell under Tennessee Rule of Evidence 105. The CCA found that such a line of questioning is inadmissible, and “whether or not a crime was committed and the Defendant’s guilt are legal determinations...” (This language is great, because it can be used to prevent an officer from testifying about the credibility of the defendant or the victim, or the legitimacy of the officer’s determinations, regarding any type of offense.) Though the police officer did not directly say, “I believe M.B.,” the CCA found that her testimony about credibility was clear to the jury, and it was not harmless error.
Second, the CCA found that the State’s closing argument violated the law in Judge and Goltz, even under a plain error analysis. Trial counsel did not object at trial. The CCA found that six separate statements made by the prosecutor were intended to express his personal belief in the credibility of the victim, the sex crimes detective’s personal belief in the credibility of the victim, or the prosecutor’s personal disbelief of the Defendant. Because this was a case of “he said, she said,” without any other corroborating evidence of a rape, the CCA found that these comments of personal belief were more powerful to a jury than if there had been significant evidence of guilt.
Again, I don’t think the misconduct in this case is overwhelmingly egregious, but it’s there. When combined with the line of questioning designed to show that the sex crimes detective is selective about what cases she prosecutes, and she chose to prosecute this case, I think the misconduct becomes notable. Read the FULL OPINION HERE.
Double jeopardy means that “no person shall … by subject for the same offense to be twice put in jeopardy of life or limb.”
In this recent Tennessee Supreme Court decision, the justices addressed whether the conviction of Terrence Feaster violated the Double Jeopardy clause of the US and Tennessee constitutions. Mr. Feaster was convicted of attempted voluntary manslaughter, aggravated assault, and false imprisonment for the beating of a woman with whom he had been living for approximately two weeks. At trial, the victim testified that she and Mr. Feaster returned to her residence after leaving a bar where the defendant had become extremely intoxicated. Her testimony at trial was: that the beating was without provocation, the defendant threatened to kill her if she moved, and when she returned home from the hospital several days later, some of her possessions were missing. Mr. Feaster testified at trial that the victim had initiated the fight by punching him in the face several times. The crime scene was bloody, and the victim was in the hospital unconscious for three days following the beating. Mr. Feaster testified that the victim asked him to call 911, and to remove all the drugs and guns from her house before he left.
So we start off with a terrible situation, a hokey explanation by Mr. Feaster, and some really serious charges: Feaster was charged with attempted first degree murder, aggravated assault, two counts of especially aggravated kidnapping, and one count of aggravated robbery. The defendant was found guilty of: one count of attempted voluntary manslaughter, aggravated assault, and one count of false imprisonment. (This leads me to believe that the jury believed he beat the crap out of her, but that they didn’t really believe she was innocent, and maybe she had guns and drugs in the house. Pure speculation, on my part.)
The issue: whether the count of attempted voluntary manslaughter and aggravated assault should merge based on past court precedent.
The answer: No.
The analysis: Before answering the substantive question, the Tennessee Supreme Court had to analyze whether State v. Denton (Tenn. 1996) or State v. Watkins (Tenn. 2012) was the applicable standard for Mr. Feaster’s case. (Denton was in effect at the time of the offense, but Watkins later overruled Denton’s criteria for determining double jeopardy.) When the Court abandoned the four-part Denton test, they adopted, in State v. Watkins, the same-elements test established under Blockburger (USSC 1932).
Here, the Tennessee Supreme Court held that Watkins, the 2012 case, would apply to Feaster’s conviction, which preceded the 2012 change in the double jeopardy standard. The court cited the “analytical shortcoming of the Denton test” and the wide acceptance of the Blockburger standards in “federal courts and the vast majority of our sister states.”
Watkins, following Blockburger, focused first on a determination of legislative intent: did the General Assembly intend for multiple punishments to be imposed? If this is unknown, go to the next question: do the convictions arise out of the same act or transaction? If the answer is yes, then go to the next question: do either of the offenses include elements that the other one does not?
Applying Watkins to Feaster’s convictions, the Supreme Court affirmed the CCA, finding that attempted voluntary manslaughter and aggravated assault arose out of the same incident, but contain “numerous elements that the other does not.”
So, there you have it. Any pre-2012 cases require the application of Blockburger, not Denton.
Read the full opinion HERE.
YES. Absolutely. The plea to guilt can be for the smallest of offenses (think about 5 people sitting in the same apartment, all arrested for 1 joint and a handful of pills, and none of them can make bond, so Person 1 steps up and takes the charges because: 1. he/she isn't currently on probation, 2. is being offered probation which means he gets out of jail immediately, and 3. has a job/kids/cats that he/she has got to return to TODAY).
*After deliberation, I've changed Person 1 to the more appropriate "Innocent-Guilty Man."
And yes, I've seen this happen. In the incident described above, Innocent-Guilty Man pleaded guilty because he couldn't make bond and would lose his job if he remained in jail another day. Notably, the folks arrested were in an apartment playing video games when police conducted a 30-minute knock (that was before they ever got to the talkin') at 10:00 at night (literally, 30 minutes, and when the people inside declined to open the door, the police opened the window and moved around the blinds to look inside). After police began redecorating the drapes, the owner told them they could come in because they were petrified it was going to happen anyway, possibly with guns. Can you imagine if that happened at your house?!
Anyway, the person that pleaded guilty to possession of the drugs (a roach and a couple of pills) found in the apartment, Innocent-Guilty Man, was sitting in a vehicle outside in the complex when the police made entry into the apartment. Innocent-Guilty Man acknowledged to police that he was getting ready to visit some people in the apartment. Innocent-Guilty Man had never stepped foot in the apartment, but after searching Innocent-Guilty Man's vehicle numerous times and finding nothing illegal, police hauled him into the apartment and arrested him, along with everyone else. Innocent-Guilty Man (who was not my client) didn't have the time or money to litigate the slew of constitutional violations that the police racked up that night. This case had my blood boiling for days, but the people who were truly effected by it -- the people sitting in jail -- were the ones that felt the sting of the system.
So, even for the smallest crime, there are lots of reasons that someone might choose to plead guilty for something that he didn't even do. Someone might listen to Innocent-Guilty Man tell his harrowing tale, hearing him conclude, "And I wasn't EVEN IN THE APARTMENT! And I didn't EVEN HAVE ANYTHING ILLEGAL IN MY CAR" and think, "yeahhhhh, right." But it's true - all of it.
And likewise, when someone is face 304 (or even 44) years in prison, they might also choose to plead guilty to something they did not do, because it gives them the potential to have a life again one day, rather than die in prison. This recent article shines light on some particularly egregious examples of Innocent-Guilty people. We all say, "I could NEVER plead to something I didn't do - especially something really heinous - like child abuse." But people do.
Here's the link: http://www.thecrimereport.org/viewpoints/2015-06-why-innocent-defendants-plead-guilty-to-rape-charges.
"Research suggest that people are 50 percent more likely to make an error in identifying a person from another race, although individuals who have a lot of contact with the other race tend to be more accurate. The same is true of identifying someone of a different age. But because of its commitment to nondiscrimination, the law generally doesn’t acknowledge or address this reality — and most police officers, judges, and jurors don’t even know it’s an issue." --- Read the article in its entirety, here.
The old phrase "birds of a feather" takes on a more nuanced context in the discussion of cross-racial identification - birds of a feather that flock together may not be very good at identifying birds of other feathers. And the Massachusetts Supreme Court is doing something about it. In a recent case, Commonwealth v. Balstaldo, the MA Court held:
"In criminal trials that commence after the issuance of this opinion, a cross-racial instruction should always be included when giving the model eyewitness identification instruction, unless the parties agree that there was no cross-racial identification."
Scientific evidence has proven time and time again that witnesses have greater difficulty at accurately identifying someone that is from a different race, rather than someone of the same race. The Innocence Project highlighted how this can effect exoneration rates:
Eyewitness misidentification is the single leading contributing cause of wrongful conviction, arising in 72 percent of the 325 wrongful convictions identified through post-conviction DNA testing. Among these cases, at least 42 percent involved a cross-race or cross-ethnic eyewitness misidentification. - See more.
Due to being knee-deep in an eighty-page appellate brief, I didn’t have an opportunity to cover the latest (and one of the few) victories for the defense bar. Last week, the Court of Criminal Appeals reversed the conviction of a Nashville man sentenced to serve nearly ten years in prison for three counts of aggravated sexual battery. The child had very few details of what happened to her or when it happened – she was unable to identify the man that allegedly touched her. In State v. Robinson, the CCA reversed after a finding that persistent prosecutorial misconduct prevented Mr. Robinson from receiving a fair trial.
“The Due Process Clause of the 5th and 14th Amendments to the United States Constitution and Article I, section 9 of the Tennessee Constitution affords the Defendant the right to a fair trial free from improper comments by the prosecutor during closing argument.” United States v. Gonzalez-Lopez, 548 U.S. 140 (2006); Johnson v. State, 38 S.W.3d 52 (Tenn. 2001).
To truly achieve justice, child sex prosecutions require an even-tempered prosecutor and a zealous defense attorney. Accusations involving children are the type that prompt people to pick up pitchforks and grab Molotov cocktails – no one likes a child molester. So let’s talk about State v. Robinson.
In Robinson, the child, B.C. was seven at the time of the incident. The date and year of the first allegation of sexual battery is unknown. The second date is alleged to have occurred on February 5, 2012. On that date, Mr. Robinson, who had been a groundskeeper in an apartment complex, was out working when B.C. rode her bike over to him. B.C. said she pulled her pants down, he touched her privates, and then gave her a dollar – which she lost. B.C.’s mother came out to look for her and after not finding B.C. where she was supposed to be riding her bike, became upset. B.C.’s mother immediately asked her if Mr. Robinson ever touched her. B.C. testified she was afraid that she would get “whupped” by her mom, who appeared mad that B.C. wasn’t riding her bike where she was supposed to. Notably, the area where this alleged touching happened was in the middle of an apartment complex where tenants frequently walked their dogs; multiple windows looked down onto the area.
The behavior exhibited by the prosecutors in this case was completely inappropriate and as a result, the CCA held that they committed non-structural reversible error. The prosecutors made derogatory remarks about defense counsel, bolstered the credibility of their own witnesses, repeatedly asked jurors to “send a message,” and inserted issues not in the record in an attempt to secure the conviction they so desperately wanted. The prosecutors’ “persistent pattern” of comments resulted in cumulative error. Here’s a sample:
THE STATE: What in the hell was he doing behind that apartment building. What were they doing. If they weren’t doing what B.C. said they were doing, what were they doing, because he hasn’t offered any explanation for that through any of his witnesses.
DEFENSE COUNSEL: Objection, your Honor. If I may approach on this occasion?
STATE: It’s closing argument.
THE COURT: I know what it is. All right. Let’s approach.
DEFENSE COUNSEL: No, no. I don’t want to make a speaking objection.
THE STATE: Mr. Robinson obviously doesn’t have to testify. Everybody knows that, right. We have all been told that since jury selection. I’m not talking about his testimony. I’m talking about the witnesses from the witness stand. He chose to put on proof, and he didn’t offer you any proof from any of those witnesses as to what else was going on and what he was doing with B.C.
THE STATE: Here’s what we do, Ladies and Gentlemen. We put out public service announcements to tell children to tell if something is happening to them. Because sexual abuse occurs in private. It doesn’t happen in the open eye, that’s true, but it certainly can happen in public places. And we worry about that. It happens with coaches at ball fields. [Defense counsel] talked that. We tell them to tell because we are worked about the youth pastor at church. Right there in church in the middle of everybody. We are worked about the teacher at school. We are worked about the Boy Scout leader, the Girl Scout leader. We tell them to tell because we know that it happens right under our noses all of the time. And the only way we are going to know about it is if they come forward and give us the information. That’s it. They have a right to be believed. And, you know, we don’t what is happening to them if they don’t tell us.
It’s important to note that it is really difficult for an attorney to find their feet and object during opposing counsel’s closing argument (that’s when all the egregious statements were made in Mr. Robinson’s case). Objecting in closing argument makes you feel like a jerk – and you certainly wouldn’t want someone objecting while you made your argument – there’s a feeling of reciprocity. However, objecting is critical to cutting off this type of behavior and preserving the record for appeal. In these types of cases, where a prosecutor is urging the jury to convict based the vague descriptions of a child with a “guileless heart,” someone has to remove the emotion and focus on the facts. That someone is the defense attorney.
P.S. – The CCA opinion is this case is extremely well-written. Its covers all of the bases – from plain error analysis to constitutional and non-constitutional error. Read the full opinion HERE.
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