I was appointed to represent Uncle Rudy who was charged with three counts of criminal sexual conduct with minors in the first degree. He stood accused of raping his three young nieces during a holiday visit with his sister. He would take the girls for a ride in his pick-up truck, pull off on a secluded road, and sexually assault them. One of the girls told their mother, and she immediately reported Rudy to the police. He denied he did it and demanded trial by jury. I was appointed to represent him in the Dorchester County Court of General Sessions.
The week before trial the Assistant Solicitor casually mentioned she’d located Uncle Rudy’s now grown female children in Ohio and she would be calling them as witnesses to testify he’d done the same thing to them when they were his nieces age. She excused her delay in informing me of this by claiming she didn’t want to tell me about them until she was certain they would come to South Carolina to testify. Gee, thanks.
I should have bit my tongue as soon as I said to myself, “What could possibly be worse?” What could possibly be worse than having to cross exam three sweet, innocent girls about being sexually molested by their uncle. I tip toed through my questioning of the girls trying hard not to alienate the jury any more than they already were. I could be a little more direct with Uncle Rudy’s grown daughters but they were hard as nails and rightfully pissed off at him for doing the same despicable things to them when they were growing up. There are a lot of things lawyers have to do they aren’t particularly proud of but what could possibly be worse than having to cross-examine sexually abused children?
Most people don’t know it but there’s a whole cottage industry that’s grown up around sexually abused children. The police in Dorchester County refer all abused and molested children to the Lowcountry Children’s Network for a complete forensic evaluation that includes a videotaped interview conducted by a trained staff member and medical examination by a licensed physician. The testimony of the interviewer and physician isn’t legally supposed to be offered merely to vouch for the credibility of the children witnesses but that’s exactly the way it comes across to the jury. Normally this show and tell by the child abuse “experts” is the kiss of death for the defendant in the courtroom.
Everything was going according to the prosecutor’s playbook, with Uncle Rudy’s conviction becoming more and more certain, until the Assistant Solicitor called the expert child abuse doctor to testify as to the results of her physical examinations of the girls. The easiest way for a witness to falter on the witness stand is to make the mistake thinking the trial is about themselves and that’s exactly how the Assistant Solicitor’s case began to fall apart. This physician felt compelled to drone on and on telling the jury just how smart she was, all about her education, training, experience, and tireless dedication to fighting against the scurge of child sexual abuse. Everything was “I this” and “me that”, all about her. Finally, sensing the jury was drifting, the Assistant Solicitor got around to asking the good doctor about the girls assaulted in this case. The first girl, the oldest who was nine, had an intact hymen but it had a hole in it. Although nobody asked, certainly not me, the good doctor felt obliged to disprove the hole in her hymen could have occurred by the girl masturbating. Oh, yes said the expert doctor, as she explained, there are studies upon studies establishing that girls masturbating doesn’t cause holes in hymens. I was sitting at counsel table and couldn’t help but notice the women on the jury looking at each other and shaking their heads. Not that I knew anything about it, it seemed the women juror didn’t believe nine year old’s masterbated all that much. The second even younger girl, aged seven, had an intact hymen and, again, although nobody asked, the good doctor felt compelled to explain that didn’t disprove sexual abuse. She conveniently revealed she had a rubber band around her wrist which she stretched while testifying the hymen could stretch like a rubber band. By this time I was focused on the women jurors reaction and, again, they shook their collective heads no, a seven year old’s hymen doesn’t stretch like a rubber band. The youngest, third girl had a broken hymen and the good doctor didn’t feel the need to bolster her testimony with premium grade bullshit. One thing you can say for the good doctor is she was rock solid on cross examination and made sure, whatever question I asked, she gave me a long, drawn out answer she had rehearsed to another question of her own choosing. The best I could do is finally get the judge to instruct the doctor to answer the questions asked. Certainly, your honor, she said with a beguiling smile as if her testimony was all a big game.
Uncle Rudy wisely decided not to testify and I won’t bore you with trying to reconstruct the feeble argument I made on his behalf in closing. I was soon to find out what could possibly be worse than having to cross examine those three sweet, innocent girls. The jury came back and convicted Uncle Billy of sexually assaulting the youngest child with the torn hymen but hung up on the other two girls because they diodn’t believe the good doctor’s expert testiomony. So, what could be worse? Having to try the case again for the two older girls the jury hung on.
Fortunately for everyone concerned, the girls, their grown up cousins, their parents, even the disappointed Assistant Solicitor and myself didn’t want to retry the case. The solicitor agreed if Uncle Rudy pled guilty to the other two cases, he would receive concurrent sentences. He was about to be maxed out on the one count he was already convicted for anyway, so it didn’t make a whole lot of difference to him. The plea bargain benefit he received was, if he’d been convicted of CSC with a minor, 1st degree, for a second or third time, he’d have been facing mandatory life without parole under a newly enacted statute.
Is there any lesson to be learned from this fiasco? Yes, for any witness, expert or otherwise, you intend to call to testify, remind them in no uncertain terms the case is not about them. It good advice for you to remember as an attorney whenever you feel like jumping up on your high horse during a trial. It’s not about you either.
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