Shannon Smith – 2011.2′ Grad.

I’m on fire, so thankful for TLC and have to report!!!!

I am happy to report I got a 7 minute not guilty verdict this morning on a child criminal sexual conduct case in Detroit, Michigan!  Our Michigan group helped me on this case — thanks to Marj, Cheryl, Keeley, Josh, Ian, JConline, Barton, Rhonda…..and anyone I unintentionally forgot!!!

Facts:  Elise, one of the cutest 9 year olds I’ve ever seen was sleeping over at the client’s house.  Client’s wife allowed the child to sleep in the client’s bed.  He was asleep with his son who was 4.  In the middle of the night, Clark goes into his room, gets in bed and spoons the person next to him.  Realizes it’s not his wife and tells the girl to go sleep with her dad.

She goes into her dad’s room and reports “Clark touched me.”  The conversation snowballs into allegations that Clark put his hands down her pajama pants and rubbed her privates.  The dad came out of the room and punched Clark.  Clark keeps saying, I’m sorry I touched your daughter, I thought it was my wife.  Forensic interview, 8 days later, she says the same story.  Exam three months later, same story.  At trial, same story. 

Our defense:  The conversations with the child that took place right after the allegation caused her to believe she was sexually assaulted and misunderstand a mistaken touch.  Her dad, believing that Clark must have touched her sexually to make her so upset caused her to become influenced that that is what happened.  We argued he did touch her, but not the way she claimed (even though she said it within the hour right after the incident). 

We could not argue this child was lying or not credible.  She seemed very credible (the exam judge told me not to try the case — she is “way too credible”).  We argued that her memory was not RELIABLE and that outside influences impacted her memory and belief about what happened.  It was a very expert intense case, which is why I was VERY concerned because the Judge was very nasty to me about my expert testifying.  He did let her testify but he totally picked and chose what was allowed.  Totally derailed the plan of attack, but there was no choice to hang on for dear life.

 

The TLC strengths in this trial definitely included soft cross.  (The judge did not allow useful voir dire.)  The complainant had a false memory she was sexually assaulted.  How could I be hard on her?  How could I be hard on her parents who also believed she was assaulted and tried to do the right thing for her????

My expert was critical to explain how false memories work.  TLC helped me focus on the story and avoid all the expert lingo.

TLC taught me how to get client prepped to testify.  He was a very nervous and angry client — angry he was in this position.  One day we just made him scream for 10 minutes to get it out of him.  It helped.  His testimony was beautiful.

The judge, who is a DEFROCKED CATHOLIC PRIEST (Dan Ambrose had him in two trial victories last year) was horrible to me throughout trial.  I would just stare into the jurors eyes as he yelled, thinking “save me please.”  They did.  I focused on relationship building with them while he went nutty in the background.  He yelled at me a TON and made horrible rulings.

This judge was so AWFUL that he found it appropriate for the 9 year old to carry her stuffed animals around the court and into the courtroom.  He ruled that it was not prejudicial to my client and ultimately tagged the stuffed animals as EVIDENCE over objection because they were present the night of the alleged assault. 

In spite of the AWFUL judge, the jury found my client not guilty in 7 minutes!   WHOO HOOOOOO.

I really think the “caring is contagious” theme of TLC proved itself to be true.

Shannon Smith

Class of 2011.2