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http://www.nytimes.com/2015/10/30/us/owen-labrie-st-pauls-school-sentencing.html?hp&action=click&pgtype=Homepage&module=second-column-region&region=top-news&WT.nav=top-news

The image came from a website called, conveniently, JEZBEL. Cannot make this shit up.

A year in jail? He’s a kid. She’s a kid. What do either of them know? They both have a lot to learn. But jail? A year in jail?

The judge sentenced the kid to incarceration, avoiding being sentenced himself. Soft on crime. Insensitive to victims of domestic violence. Too cognizant of the power of the monied.

A sidetone: many years ago when I worked hard as a trial lawyer, I tried a sexual assault case in the Bronx. Lawyers had avoided these cases and the Administrative Judge, Billy Kappelman, literally roamed the halls, robed, with his Law Secretary, looking for lawyers to try these cases. The bureau chief of the newly created sex crimes bureau had a ton of cases, evidence laws had been skewed to protect the accuser (who was still called a victim) and lawyers felt queasy asking questions about what went on below the waste, especially if it wasn’t face to face. And, most of these guys were in jail, unable to make bail. Judges kept them in to avoid being chastised for being soft on the victimization of women, despite most of the crimes are “he said, she said”.

These were assigned cases and when you are building a practice, you need the experience trying cases, so you do it. Every witness who testifies that your client did it is a tough one to question and it doesn’t matter if it’s a murder or a rape or a urinating in public. You do it, because it’s the 6th Amendment and all accused are entitled to counsel and a trial. It’s also one of those reasons the system for appointing Public Defenders and Assigned Counsel is assailed: you don’t always get the most experienced attorneys. Sometimes, no, not so much anymore, you get indigent attorneys representing indigent defendants. It’s not that I was a babe-before-the -bench; I had 20 trials under my belt. But poor people cannot afford Ben Brafman and Ben Brafman cannot afford to represent people who don’t have money.

Well, the case went in poorly. All the complainants prior sexual experience discovered through diligent investigation had been excluded. She came in dressed and prepared. A social worker and cop watched from the front row, lending credibility to the process. If they, the system believed her, you, the jury should too.

Every question I asked on cross brought a grimace or an objection. She stopped to sob or cry, bringing the ADA to their feet with a hankie. After getting the best version of the events I could, I stopped. Then, my client took the stand, with my approval and to the consternation of the ADA. He told his story. And the ADA couldn’t budge him.

What really happened? Who knows? Truth? What is truth? It’s always distorted, even if under oath. The prosecutor argued that, “… of course he would say that. He’s on trial. He’s the one who could be convicted. He’s a rapist.” Yada, yada, yada. Did you hear the questions asked by his attorney, an argument that put me on trial, like I was somehow promoting sexual violence by defending him. Weren’t you listening. Did you see her pain. She will live with this forever. The violence. The shame.

In substance the ADA posited that why would a woman come here and testify if she weren’t telling the truth? CODE – she talked about having a penis in her vagina, a personal thing, a private, intimate event to a group of strangers. Truth! What the witness said was the truth and you must convict.

Me. I argued the law, the medical reports and the fact that everyone was equal here and there was no way to understand how the incident happened or how it ended with any degree of certainty. I humanized my client, not an easy task, suggesting that she picked him up, not the other way around. So, if you didn’t like him, too bad, she got him to take her home. He’s thinking sex. Who knows what she’s thinking? In the South Bronx, you didn’t go to talk about Homer or Voltaire in those days. And, if you want to know who showed courage here by testifying, it was him, not her. He’s the victim, not the other way around.

No vaginal tearing. No bruises. No scratches, except on him. And it took place in his apartment, a place she went voluntarily.

The jury acquitted in less than an hour. They hesitated after the Judge’s instructions to have lunch and schmooze. I never talked to jurors after a verdict. It never teaches you anything about juries or the system, except not to listen to them. One juror, a middle-aged, middle class woman, walked over to my client as she was leaving the courtroom, shook his hand and whispered in his ear, “Be more careful with the next woman.”

Author: duckshots

Lapsed lawyer. Reader. Photographer. Jewish. Strongly attached to loving, caring, wife-Sharon. Working at remaining relevant. Hoping that my body and mind outlive my dreams. Maybe something I blog will make some sense.

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