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On Behalf of Gary S. Bernstein, P.A. | Apr 21, 2020 | Criminal Defense |
I couldn’t do that with the last question the judge asked “Do any of you have strong feelings about sexual abuse of a minor?” The entire panel- all 75- stood and at the bench did not want to be involved in this case. When we went to the bench to individually interview the jurors about all their answers, I asked the judge if they had 75 more in the jury room to replace the entire panel? He smiled and said let’s see what happens when we question them. To the judge’s credit (and he was as good a judge as I have ever appeared before), he explained about the defendant having to receive a fair trial and that you have to set that emotion aside and listen to both sides and render a verdict based solely on the evidence and not emotion. He was patient with each juror and most of the panel then said they would follow that, so I had 12 jurors who said they would set that emotion apart.
When I got up and gave my opening statement, I told the jury let’s start with the 800 pound gorilla in the room- nobody wants to call a 6 year old a liar. I explained that there is a difference between believing something, and that something being true. There was no issue that my client would tickle her- however was it intended to be for sexual purposes even if his hand crossed over her belt line? She had been “interviewed” by 4 family members- none of it recorded on their iPhones or even the child’s iPad where she was able to access a violent board game. THEN she went to DSS for a forensic videotaped interview. Now the child who was now 6 years old came in holding her stuffed dog and with a bright bow in her hair. She gave a version totally inconsistent with the videotaped version that was played to the jury. Additionally she had made up a story about my client stealing bikes and the police coming to the house that was totally false. I told the jury that her mother who later cut off her father’s (my client’s older brother) visitation, used this allegation to file for custody.
Everything that the child told the social worker that could be checked by the police turned out to be 100% false. There was no evidence to support her claim and I argued that she was made to be a “victim” by her mother and her mother’s family. Notwithstanding that, I still had the cutest 6 year old who everybody on the jury wanted to hug and instinctively wanted to defend and protect.
The jury was out about 2 hours and acquitted of all the charges. It would have been such a gross miscarriage of justice if he had been convicted. The State’s offer was jail then sex offender probation, and lifetime sex offender registration. Justice was served yesterday and 12 people who may have loathed my client at the start of the trial, set that aside and did as they swore to do. They made sure the justice system worked, and the judge thanked them for their commitment to duty. I didn’t get to thank them, nor will I ever, but I thank them here for being the kind of citizens that insure our justice system is fair and just.
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