Sherman & Plano, TX Criminal Defense Lawyer Blog

The convict-at-all-costs mentality that surrounds these cases is why many defense lawyers will tell you that aggravated sexual assault of a child trials have become the Salem Witch trials of modern times. One on trial in Texas for aggravated sexual assault of a child might as well be on trial in 17th century Salem, Massachusetts for the charge of consorting with Satan. One’s friends, neighbors and even family often come in and bear false witness against the accused for whatever motive or because they believe the child, and when the accused speaks in his defense, well we would expect someone consorting with Satan to deny that they were consorting with Satan.

The State will argue that we should expect no hard evidence or eyewitnesses because we would expect such perpetrators to do their deeds in secret with nobody around, because nobody consorting with Satan would allow there to be any witnesses to their crime lest they reveal themselves as evil doers. So we shouldn’t expect any evidence in such cases except the testimony of young children, and we all know that children do not lie (even when a parent prompts them to do so) (in fact, research indicates that a supermajority of children under 6 will repeat to another that uncle Bob put something yucky in their mouth when prompted by a parent). Such are the difficulties of such cases, making some forget that American justice has always placed the burden on the government of providing legitimate evidence to prove beyond any reasonable doubt that a person committed a crime to a fair and impartial jury.

So, when faced with the heinous accusation of aggravated sexual assault of a child, particularly in Texas where politics and religion can intermix with career law enforcement/child welfare workers who commit perjury to protect their jobs, a plea-bargain offer for paroleable time or probation may appear an attractive option to some, even when innocent. But a plea to such a crime or lesser included offense is never really an attractive option. So, if you or your family member faces such a false accusation, you need an attorney highly experienced criminal law specialist and with a winning record in such cases.

Last session, the Texas Legislature enacted Texas’s version “Jessica’s Law,” which increased the penalties for the crimes of aggravated sexual assault of a child under 6 and continuous sexual assault of a child. While most of us agree that a legitimate charge of such an offense should warrant a harsh punishment, those falsely accused of aggravated sexual assault of a child or continuous sexual assault of a child are painted into an even harder corner simply by being indicted. While these cases can be difficult to prosecute for various reasons, the legislation raises the issue once again of should we create such a stacked deck of state witnesses/false or highly questionable expertise, combined with draconian punishment schemes, whereby we dramatically increase the chance of false convictions to keep more of the guilty from getting away.

Under the new law, if an innocent person is convicted of such a crime, on no more evidence than the false testimony of a child (normally coached by a parent with motive to fabricate, and the children coming to believe the story themselves), he faces a minimum of twenty five years incarceration in the penitentiary. This time is served without the possibility of parole or “good time” credit. Thus, claiming your innocence and going to trial means you face a strong chance of dying in prison if a jury – who does not want to believe that a young child could tell such a story if false – takes the invitation of the prosecutor to rely on their own bias, prejudice and sympathies to convict. We all have strong feelings about such cases, and it is difficult to set aside these feelings and give a defendant the presumption of innocence and true “beyond a reasonable doubt” burden of proof due to our fears of children getting hurt.

Also highly concerning is that political prosecutors (elected in Texas) love to obtain such convictions that they can sell to the voters to show that they are “tough” and protecting your children – regardless of the innocence or strong evidence of innocence of the person accused. When State witnesses are shown to have committed perjury in appeals or subsequent proceedings, such actions are generally swept under the rug and the public is kept unaware. In “he-said/she-said” cases such as these, witnesses fabricating on the State’s behalf can be particularly lethal, where juries are searching for testimony to convict on. Jurors often take the “cloak of the State” as carrying more credibility than the average person off the street, and these witnesses know that (and know that they are unlikely to be prosecuted if exposed) when they twist and manipulate to help convict someone accused of such a horrible crime.

False accusations of sexual abuse plague our court system, locally and statewide, putting innocent people at risk of life in prison and wasting resources that could be used prosecuting legitimate cases. The typical false allegation case arises when kids are “coached” by an authority figure to make a false claim against another, with a motive for the adult to coach the child. Research shows that, after such coaching, children can start believing that the sexual assault took place the more often they are told (and tell themselves) the false story.

A case apparently on point is the Mineola Swinger’s case, which originated in Wood County, but went to trial in more prosecution-friendly Smith County, Texas. As reported on WFAA.com, the case began (supposedly) when four children in foster care accused a handful of adults of training them to perform sexual acts on stage at a nightclub in Mineola, a horrific tale which shocks the conscience upon reading its details.

However, the true background of the story is that these children’s professional foster parents, believed by defense lawyers to have coached the story, were themselves being investigated for abuse charges out of California during the relevant time period, and none of the children’s allegations have been corroborated by any evidence outside of the other children’s statements. Additionally, their foster mother was improperly allowed to sit in on their interviews by the Ranger investigating, further taining the evidence. Regardless, three citizens, based on the children’s testimony, trial court rulings which favored the State even when obviously contrary to clearly established law, and potential prosecutorial misconduct in suppressing key evidence favorable to the accused, several people were sentenced to life in prison. They were fortunate to have appellate lawyers who brought much of the misdeeds to light on appeal in State of Texas v. Patrick Kelly.