Discovering and Showing a Case Theme in Trial with Trial Lawyers College Methods

by Cheryl A. Carpenter, TLC 2000

My client R is a 27 year old man. He was criminally charged with sexually assaulting and raping a 14 year old gir. He was recently found not guilty after a jury trial jury. I could not have gotten justice for R without assistance and support from my brothers and sisters at TLC. All of you were involved in this case if I didn't talk to you about it. This is because of what I've learned from all those involved with TLC. TLC is a source of wisdom and support for me. Special gratitude to Marj Russell and Rafe Foreman. Read on to see why.

Here are the brief facts: R (my client), 27 year old man, met a 14 year old girl, D, on an internet dating website. It was more risqué than Match.com and had photos of scantily clad or partially naked people on the profile pictures. Both R and D were on the website and started chatting via email and text messages. After about 2 months of talking, they set up a meeting. R thought he was meeting a 18 year old girl, not 14 year old. Still not good, since 18 seems young for a 27 year old. They met and R had doubts about the age of D but still went ahead with the date. The date turned into a two hour time frame of running errands plus a trip to R's house. During the time at the house, D alleged that R had sex with her. She claims she said stop but R allegedly said, "I'm not stopping until I'm done." (This alleged element of force doesn't matter since R is charged with statutory rape). D said she was told to take a shower after the sex. D immediately told 2 friends. She kept it from her mom. Mom finds out through grapevine a few weeks later. Mom confronts her daughter. D finally says she had sex with R and goes to hospital for rape kit and interview with cops. R is charged.

R has trial with other counsel. Hung jury. Because of fear of re-trial, R pleads guilty with a promise of probation and no jail. After the plea, the horror of the sex offender registry sinks in. R loses a job he had for the last 10 years. R is threatened that if continues to live with his girlfriend and her 10 year old daughter, Child Protective Services will come out and take kid away from mom for failure to protect. R calls me. I am able to convince the judge to withdraw the plea. Judge tells me, "Cheryl, I didn't see a motive for this girl to lie during the first trial. Is your client sure he wants me to grant this motion?" I told the judge I will present a motive to lie. Judge smiles and grants the motion to withdraw plea. New trial date is set.

I bring in Marj Russell to help me discover the story of the case. I cannot tell you how essential this was. Marj is brilliant. We reenacted the incident with R. We learn a lot. We also go to R's house where the alleged incident occurred. Marj, R and I are in the basement where D says she had sex. D has testified earlier that she walked naked from the basement bedroom to the bathroom because R told her to take a shower. Marj takes this walks and says, "No female would walk this naked, especially if they were just raped. D would have wrapped a sheet around her or put her clothes around her." At trial, I cross examined D about this naked walk. It was a chapter in my cross. Afterwards, a 60'ish female juror told me, "I could not believe D took a shower because I would never make that walk naked. I'm too self-consciousness." Thank you Marj, for helping me find this gold nugget. We only figured this out by being at the scene and feeling it.

Marj also helped with case theme of lie spinning out of control and lies for different reasons. D lied to friends to save face from rejection, lied to mom so not to get in trouble, and lied to police to possibly protect another boy. This is good stuff. In these cases, understanding and explaining the motive to lie is paramount. Judge already told me he didn't see one in first trial and I know I'd never get a jury to acquit if I didn't have a believable motive to lie.

I also had several telephone calls with Rafe Foreman about this case. I tell Rafe about my fears of this case that R should never have picked D up. She is too young and R should have seen this right off the bat. Why did R even spend a couple of hours with D unless he wanted to and did have sex with D? Rafe listens, feels my fears, and helps me turn story around. He tells me how it takes him a long time to determine the age of a person. Rafe helps me reverse roles with my client to see that he was only doing what any other man may do

I also work on a mock voir dire with Marj with her law students. This was a very important piece of trial prep work. Practicing the voir dire was helpful but the feedback from the jurors was the pot at the end of the rainbow. I will never forget a mock juror telling us afterward that she had something to share but nobody asked her to share it. I made it a point in my trial to specifically say to the jurors, "If anyone of you have something you want to share but I didn't ask the right question, please share that with us." I will always remember to give jurors a chance in voir dire to say anything that is on their mind and I will specifically ask this general question.

The weekend before the trial comes. I don't know about you, but I get the panicked, about to jump off a ledge, feeling before a big trial. I call Rafe again. He talks me off the ledge. He helps me focus. We refine my voir dire. He also gives me the nugget of reversing roles with the jury in the beginning of my closing argument. I use this nugget and tell the jury, "If I was sitting next to you, as your fellow juror, I would be thinking. . . why am I even here? The officer in charge has suspicions about the truthfulness of D's story. D's mother thought she was lying in the beginning. And D told me that she doesn't even want to be here." I go stand next to R and tell the jury that they are here for R. They are here to stop the madness. To stop the nightmare he's been living with. My villain was the cops and prosecutor. I told the jurors I felt bad for D. I could understand how she got to where she was. What I didn't understand is how the cops failed to investigate for exculpatory evidence

Lack of investigation a big theme. I got cops to testify they didn't go to R's house to look to see if there was a bedroom in the basement because all evidence would be gone after 48-72 hours. I said this is for incriminating evidence. But evidence to show that R didn't do it would still be there. I painted a picture of different police jurisdictions handing the case off. I got one cop to say he didn't do anything else on it because it was out of his hands. He had already passed it on. He didn't need to worry about it anymore. Got cop to say this wasn't an important case for him. The ones where kids snatched off street were important but this wasn't. He put it on back burner. I ended my cross with, "Don't you think this is of the upmost importance to R?" Cop said yes. Then I said he said/she said cases physical evidence is important. Yes. If don't have this, details about incident from complaining witness are important. Yes. In this case, D didn't give you many details. Yes. This made you suspicious of the truthfulness of D's story. About a 15 second pause. Cop was begging prosecutor to object she didn't. Cop finally answered, "Probably." BINGO. No further questions.

During voir dire, I finally committed to standing in silence until jury shared with me. I usually chicken out and ask another question rather than stand in silence. I stood in silence for 60 seconds. That is an eternity. Then I said, "This is so hard for me to stand in silence. It's so hard not to have any of you to answer." The jury laughed in unison. It was like we released tension together. After this, the jurors were talking. Three woman dismissed themselves for cause when nobody was questioning them. It was after I went and sat down. In a courtroom filled with silence as replacement jurors are walking to the box, the women just raised their hands. They said they weren't the right kind of juror for this case and couldn't be fair to R. I felt such gratitude to these women.

During my cross of D, I used the empathetic cross I learned at TLC. I always picture Maren Chuloupka turning the pages of a book when I do this and I'm talking to my young sons. I told D how hard it must have been for her mom to confront her. How it must have hurt to have her mom's first words be, "Are you having sex?!" How much she didn't want to go to the hospital but she couldn't stop her mom from taking her there. At this point, D said, "My mom said if I didn't tell the truth, she would take me to the hospital and the doctor would examine me and find out if I had sex." Wow. This had never been mentioned by D before. Not in preliminary exam testimony, to cops or during first trial. D disclosed this to me, of all people the atty who is cross examining her. This shows the power of an empathetic cross.

My trial wasn't my trial. It was all of yours. For every single Warrior. I specifically thanked Marj and Rafe, but you were all a part of it. To quote David Smith, "Thank god I'm a Warrior!"