I am often confronted with clients who want to change lawyers because for one reason or another they have lost confidence in their current attorney. I have blogged about this issue often and usually do so by positing the rhetorical question, “did you hire the right lawyer”. I recently confronted this situation with a client who was charged with Second Degree Rape and related offenses. Obviously these are very serious charges that need to be handled by someone who knows what he or she is doing. In addition to facing serious jail time, anyone convicted of a sex offense faces the daunting prospect of being required to register as a sex offender for the rest of his life.
Unfortunately, there are many attorneys who will take on cases such as this one, who simply do not know what they are doing. Needless to say the results can be disastrous for the client depending upon at what point in the process the client determines that he is not be well represented. This particular client figured it out somewhere in the middle. That is, in time to prevent total disaster but not before suffering significant but unnecessary consequences. I have handled scores of sex offenses in my career but never one with facts quite like this one.
My client is a highly educated and successful man who was just north of 40 years old. He was separated from his wife and living alone in an apartment. He went out to have a few drinks one evening. He went first to a bar where he knew the bartender and consumed 2-3 drinks. He then went to a second bar where he met a friend and had a few more. Finally he went back to the first bar and had a final 2 drinks staying until last call. I was able to piece together proof of all of this through messages he sent and received on Facebook, text messages, credit card receipts and through interviews with the witnesses. Through these efforts I was able to prove that he had consumed at least 7 alcoholic beverages that night. This is a vital piece of evidence but I will get back to that shortly.
At around 2am, my client returned to his apartment building and proceeded on the elevator to his floor. Once there he encountered a young woman of approximately 25 who was sitting in the hall. She told him that she had gotten locked out of her apartment. After conversing for a few minutes he asked her if she would like to come into his apartment and call someone. She agreed and once inside they continued to converse for a while. One thing led to another and they ended up in bed together and ultimately had sexual intercourse.
She then said that she wanted to leave. He asked for her phone number which she gave to him (a fake of course) and she left. A few hours later the police came to his door and told him that he was being accused of rape. Needless to say he was stunned. He immediately hired another attorney who is not a full time criminal specialist as I am. The attorney seemed not at all interested in the fact that the defendant was himself quite intoxicated when the encounter occurred and actually tried to minimize that fact when they met with the detective and the State’s Attorney who was handling the case. Instead he just insisted to the authorities that this was a “consensual encounter” seemingly unaware that one of the theories upon which a person can be convicted of rape is that the victim was too intoxicated to consent.
He also seemed to be unaware that the best defense in a case like this is that the client was just as drunk as the alleged victim. The reason this is a defense is that the statute requires that the state prove that the defendant “knew or should have known” that the victim was unable to consent due to her intoxication. This element is virtually impossible for the state to prove if the defendant was drunk as well The prosecutor would literally have to argue, “ladies and gentlemen, the victim’s intoxication rendered her unable to consent but the defendant’s intoxication not only did not interfere with his ability to consent, it did not even interfere with his ability to know that the victim was too drunk to consent.” An untenable argument to say the least.
Based on the statement of the victim and the client’s failure to assert a strong defense, the State’s Attorney and the detectives decided to charge him with Second Degree Rape. He was arrested and spent three long days in Central Booking before his family could post his six figure bail. He was subsequently indicted and that is when he decided that he needed different counsel.
He came to see me and I immediately told him that, as I wrote earlier, the fact that the he was drunk too, AND WE CAN PROVE IT, was THE vital piece of evidence. He was shocked and told me that the other attorney told him to minimize how much he had to drink and never mentioned that him being drunk could be a defense to the charge. I assured him that it certainly was. I put together a packet for the State’s Attorney that included sworn statements from the witnesses and the other proof I described and she ultimately dismissed the case. But I first had to convince her that we weren’t manufacturing the evidence because she couldn’t understand why the previous attorney didn’t assert this defense before she ever charged the case. In fact, his failure to do so made her task of explaining to the victim why she could not proceed with the case far more difficult because before she knew about our defense she told her she could prove it and indicted the client.
The silver lining is that the charges have been dismissed and are now expunged from his record but I am virtually certain that he would never have been charged in the first place had he been properly represented from the beginning. This mistake did not cost him his freedom or his future as it has with many others, but it did cause him significant unnecessary legal and bail fees as well the embarrassment and fear that go along with being under criminal indictment for the 4 months that it took me to fix the mistake made by his first attorney. He literally almost had a nervous breakdown in the process, As I have written many times before, these are in many cases avoidable mistakes. A few direct questions to the attorney about what types of cases he or she regularly handles along with a few minutes of research on the internet is really all that it should take to avoid being represented by an attorney who is not a specialist in whatever type of case a person has.