JUSTICE WAS SERVED for another one of Michigan Criminal Defense Attorney
Brian J. Prain's clients when a jury found him
NOT GUILTY of sex crimes (Criminal Sexual Conduct) in May, 2016. It was a long journey,
but in the end, the jury came to a well-reasoned decision, and the client
finally has his life back. In a word: "relief," says Attorney
Brian J. Prain. Read on to find out how the job was done...
JB: Can you tell us what this person you defended was accused of?
BJP: Sure. The name of the actual charge he was facing was called
Assault With Intent to Commit Criminal Sexual Conduct Involving Sexual
Penetration. Because Criminal Sexual Conduct is often shortened to "CSC,"
this charge is also referred to as Assault With Intent to Commit CSC,
as well as Assault With Intent to Commit Sexual Penetration.
More specifically, the man I was defending was falsely accused of violently
attacking a woman and attempting by force to get her to perform oral sex
on him, among other things.
JB: How does this charge fit into the grand scheme of Michigan Criminal
Sexual Conduct laws?
BJP: The Michigan sex crime laws are complex, but they are generally broken-down
into four major categories:
Criminal Sexual Conduct in the First Degree,
Criminal Sexual Conduct in the Second Degree,
Criminal Sexual Conduct in the Third Degree
, and
Criminal Sexual Conduct in the Fourth Degree. Roughly, you could say that Assault With Intent to Commit Sexual Penetration
is somewhat like "Attempted" First Degree CSC or Third Degree CSC.
JB: If he were found guilty, what would the penalty have been?
BJP:
Assault With Intent to Commit Sexual Penetration, MCL 750.520g, is punishable by up to 10 years in Prison, and he would have been on
the public Sex Offender Registry for the remainder of his life after being
released from Prison. So basically, there was no way we could lose this case.
JB: So can you explain how you won the case and got another verdict of
NOT GUILTY?
BJP: The case was won in jury selection, also called "voir dire,"
and in opening statement. I've read before that something like 85%
of jurors make up their mind by the conclusion of the opening statements,
so I put a ton of work into those two segments
Every criminal trial breaks down into five separate and distinct phases.
The first phase is the jury selection, also known as "voir dire."
In voir dire, the attorneys gain an opportunity to open the jurors minds
to accept the arguments we will make at trial.
The next phase of the trial are opening statements, followed by the prosecution
calling their witnesses, including the accuser, and the defense attorney
cross-examines them. After the prosecution rests its case, the defense
attorney can call witnesses of their own, including the defendant himself.
However, there is no obligation to do so because the defendant has no
burden of proof. Finally, each side gets to give a closing argument.
I like to think of the trial as kind of like a football game. Each one
of those five phases of the trial represents an opportunity for the defense
attorney to advance down the field. You need to go 100 yards into the
end zone, and that represents an acquittal. When you think about it that
way, each of the five phases of the trial represents an opportunity to
go as many yards down the field as possible. In jury selection, maybe
we can go five or 10 yards toward an acquittal, but sometimes it's
possible to go 20, 30, or even 50 yards. So why not?
In this particular case, where my client was accused of Assault With Intent
to Commit CSC Involving Sexual Penetration, I think we went a good number
of yards down the field just in the jury selection alone. I'm not
going to reveal on my strategies on the Internet because I owe it to my
clients not to hurt their cases, but I will say this:
jury selection is the time to open the jurors minds to receive the argument
that will be made for the rest of the trial. In a case where one of my clients is accused of something serious like
Criminal Sexual Conduct, the number one thing that the jurors need to
understand is that they cannot trust the false accuser. Our natural tendency
is to think that just because the prosecution is investing their energy
and has brought criminal charges, that must mean that the accused person
is guilty – otherwise why would they do that? The presumption of
innocence is more of a legal fantasy that a reality.
Io in jury selection, we are going to be discussing whether the jurors
are open to the possibility that there are in fact people out there who
would falsely accuse someone of Criminal Sexual Conduct, or sex crimes,
or whatever you want to call them. Generally, the jurors will agree that
they are open to that possibility. But we must go one step further and
ask them to actually imagine the types of scenarios where that could actually
happen. We talk about how we know these things happen because we hear
about it and see it in the news. We know people spend 20 and 30 years
in prison sometimes for things that they didn't do, and it is very sad.
So… I've already gone further than I wanted to, so I'm just
going to leave you with this proposition: getting the jurors to accept
that this particular accuser is a liar and a manipulator her begins with
setting off the images of those liars and manipulators that are already
uploaded into their minds. There is nothing tricky or should I see about
this, either. It's effective, and it's the lawyer's job.
JB: What was the composition of the jury, as far as men and women goes?
BJP: there were 11 women and one man. They were a great and attentive jury,
and I appreciated every one of them individually.
JB: So do you feel good that you were able to get your client off?
BJP: well, I think I know where you're going with this, but before
I answer that question I have to let you know that I take issue with the
phrase "getting my client off." This person was truly innocent.
I understand that the average person believes that a huge percentage of
the people charged with crimes are guilty. The fact of the matter is,
all anybody really has to do these days is call the cops and say "he
raped me, he assaulted me," and they're just going to believe
that person and bring charges. It's really just that simple. There
is no justice, only relief when an innocent person gets their life back.
But to answer your question, I was very relieved. Not happy, just relieved.
I must've slept for three days after it was over. Trial is an exhausting
experience. You're up all night during the days in between.
JB: So you're saying that anybody can call the cops and accuse someone
of Criminal Sexual Conduct and there getting arrested? Doesn't the
court and the Judge have a way to put a stop to that when the government
tries to do that to someone?
BJP: That is correct. Essentially someone calls the police, says that it
happened, and that's it - you're in trouble.
Judges have very limited power to do anything, and even when they should
exercise their power to do the right thing, they don't.
I think the bigger question that we have to answer is this: why don't
police and prosecutors distinguished these cases and throw out the garbage
ones? I can understand that if somebody is truly the victim of Criminal
Sexual Conduct and there are no eyewitnesses there, that it wouldn't
be right to just allow the perpetrator to go free. In fact, in every Criminal
Sexual Conduct trial, the judge reads a jury instruction says that the
alleged victim's testimony need not be corroborated by other evidence
to prove the defendant guilty if that testimony proves guilt beyond a
reasonable doubt on it's own.
But what I really struggle with is the fact that there are so many cases
where there is actual evidence of innocence that is ignored. Evidence
that the accuser is lying, and they just try to sweep it under the rug.
They're playing with peoples lives, and it means nothing to them.
It's a very scary thought.
JB: Sid you experience any problems with the way you were treated by the
Judge or prosecutor? I know you've said in the past that many judges
are pro prosecution.
BJP: No, there were a few times of course when I disagreed with some rulings
that the judge made, but by and large I felt that my client got a fair
trial. That is not always the case. I've had trials where it feels
like the Judge and prosecutor are tag-teaming me to try to destroy me
in front of the jury. And I've got to find a way to rise above that
and still win.
JB: So do you think you did a perfect job?
BJP: Of course not! Nobody is perfect. I'm a
perfectionist, but I'm not perfect. I made mistakes at the trial – every attorney
next mistakes and every child. There were questions I probably should've
asked that I didn't, and even with all my hundreds of hours of preparation,
certain things didn't come out quite the exact way I wanted them to.
But in a CSC case, or any type of criminal case, I find that an analogy
applies perfectly. It reminds me of a book that my grandfather gave me,
"2201 Fascinating Facts." One of the fascinating facts was this
list of all the different parts of the human body that you could lose
and still live. Your arms, your legs, your spleen, the majority of your
intestines, one of your lungs, and just this massive and amazing list
of things. What really keeps us alive is a small core of essential parts
(reminds me of some of the cars I've driven as a youngster, too).
A trial is like that. The judge may yell at you during cross-examination
tell you you can't ask questions that you thought were important to
your defense. Your closing argument might be lackluster. But there is
just this central core that, as long as you hold onto it, you can still
win. That central core has to do with your connection with those jurors.
They can be 10 million things going on in that court room, but when you
train yourself to remember that it's all about those 12 people, that's
what really counts.
JB: How come some trial lawyers win and their clients are acquitted, while
other trial lawyers lose and their clients end up in Prison with a felony
record for Criminal Sexual Conduct?
BJP: Well, there are the obvious reasons. Some attorneys don't prepare,
don't care, don't get along with their client because they'll
take any case for whatever little amount of money they can get, etc. That's
just bad lawyering. People that have those lawyers are never going to
stand a chance, and it's very sad.
But even if we isolate the group of lawyers who do work hard, some of these
lawyers still lose quite often. Why is that? Well I think it has to do
with the fact that a lot of lawyers think they are there to defend their
client. He's a nice guy. He works hard. He wouldn't do this. That's
the wrong approach. Almost 100% of the energy during a trial should be
devoted to attacking the false accuser – prosecuting them if you well.
When a great friend and mentor taught me that, it changed my life and career.
In my opening statements now, I regularly get up without hesitation and
call the accuser "sick and twisted" if I feel that that is the
truth of the matter. We cannot expect the jury to reach any conclusions
that we are afraid to say.
JB: Interesting. Now, if I'm facing a Criminal Sexual Conduct charge,
how can I get you to defend me? Can you get me a Not Guilty verdict, too?
BJP: If you need a Criminal Defense Attorney and are interested in hiring
us, just call us up! (248) 731-4543. Someone there can guide you through
the process and get you in touch with me.
Not every case can be won, but part of being a good trial lawyer is distinguishing
the cases that have that potential from the ones that don't. The approach
the lawyer takes will depend on that.
JB: Well, thanks for your time. Always a pleasure picking your brain.
BJP: likewise, my friend. I hope you had a fun and relaxing Memorial Day
weekend. Let's hope we can chat again soon...
