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Criminal Attorney Oklahoma Defense Lawyer Adam R. Banner OKLAHOMA CRIMINAL DEFENSE ATTORNEY AT LAW

The Oklahoma Legal Group Blog

Case Dismissed: Child Sexual Abuse

Adam Banner - Tuesday, August 28, 2018

Every client is scared of jury trial. I don't blame them. Hell, I know plenty of attorneys that are scared of jury trial. It might surprise you, but there are lots of attorneys that go their ENTIRE career without trying one single case to a jury. Why? The fear of the unknown. 

Jury trial is the ultimate roll of the dice. No matter how good you think your facts are, there is always the potential you get a bad jury that ultimately convicts. Sure, there is plenty of preparation and planning that goes into a win-worthy defense, but there is always an element of chance that is completely out of your control, no matter how hard you have prepped.

There are obviously other reasons one might be fearful of taking a case all the way to jury, but that fear of the unknown seems to be the issue my clients deal with first and foremost. However, some clients have the wherewithal and the courage to face the unknown. Some clients put their faith in the system and the lawyer they have hired. It's those clients that stand to risk the most, but it's those clients that stand to gain the most as well.

Sometimes, you have to be willing to push a criminal case all the way to a jury trial in order to get the prosecution to reevaluate their case. Recently, I had a client charged in southern Oklahoma with two counts of child sexual abuse. The allegations actually amounted to lewd molestation of a minor and first degree rape, but the prosecution chose to charge the allegations as child sexual abuse instead. Plenty of prosecutors do this for three reasons: 1) it's an 85% crime, 2) the charge carries punishment up to life in prison, and 3) it is a broad statute that allows the prosecution to prove their case with varying allegations as opposed to more specific ones. Regardless, my client was facing a lot of time, and the facts weren't looking good for him.

I was retained much later in the case. The client had previoulsy hired a local attorney who took him through his preliminary hearing. When the client realized that the prosecution was threatening a life sentence, he and his family decided to hire someone with the trial experience to evaluate his defense and make sure that every avenue was exhausted.

When I accepted the case, I immediately began reviewing the evidence. I realized that vital physical evidence had not been tested for DNA. I knew that it was possible, based on the alleged victim's timeline, that DNA could potentially be gathered from the evidence (assuming it was actually there).

The catch though, is that the evidence would be consumed by a DNA analysis, meaning we would not be able to hire our own experts to re-examine the results and potentially run a retest. I explained to the client that this was a risk, and that if it came out negatively for the client, there would be no chance to combat the results. He assured me that his DNA would not be found on the evidence. He continued to maintain his innocence. We went forward with the consumption analysis.

The reports regarding the evidence eventually came back only a couple of weeks prior to trial. Not only did the DNA exclude my client, but it also revealed that someone else's DNA was present instead. The prosecution wisely dismissed all charges.

The story here? If you are innocent, fight. It is a frightening thought, but there are times in life where you have to face the unknown and embrace it. When your life is one the line, you can't simply give up the ghost because you are afraid of what might happen. You have to be willing to make an educated and contemplated risk. To do so, you need good counsel.

Still, there are some reasons to enter into a plea agreement with the prosecution. There is something to be said for going with the "known" as opposed to the "unknown" when the result will be bearable (or better comparatively). Sometimes it is safer to plead if there is a deal in place that will keep you from jail and a conviction. Sometimes the evidence against you can appear very incriminating regardless of guilt. In those situations, it's often advisable to take a deal to mitigate the amount of prison time you will face. However, if you are contemplating a plea deal, make sure that you have exhausted all of your options. 

In some cases, you have to take your defense all the way to the end before the truth becomes clear. Sometimes you have to force a case to trial in order to get the prosecution to reexamine the strengths and weaknesses of their case.

Be careful though: taking this approach does not guarantee that you will be successful. There are plenty of innocent people in jail who tried to fight the prosecution all the way to the end. Luckily, it worked out for my client in this instance. 






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