Assault With Intent to Commit CSC - NOT GUILTY!

NOT GUILTY!JUSTICE WAS SERVED for another one of Michigan Criminal Defense Attorney Brian J. Prain's clients when a jury found him NOT GUILTY of sex crimes (Criminal Sexual Conduct) in May, 2016. It was a long journey, but in the end, the jury came to a well-reasoned decision, and the client finally has his life back. In a word: "relief," says Attorney Brian J. Prain. Read on to find out how the job was done... JB: Can you tell us what this person you defended was accused of? BJP: Sure. The name of the actual charge he was facing was called Assault With Intent to Commit Criminal Sexual Conduct Involving Sexual Penetration. Because Criminal Sexual Conduct is often shortened to "CSC," this charge is also referred to as Assault With Intent to Commit CSC, as well as Assault With Intent to Commit Sexual Penetration. More specifically, the man I was defending was falsely accused of violently attacking a woman and attempting by force to get her to perform oral sex on him, among other things. JB: How does this charge fit into the grand scheme of Michigan Criminal Sexual Conduct laws? BJP: The Michigan sex crime laws are complex, but they are generally broken-down into four major categories: Criminal Sexual Conduct in the First Degree, Criminal Sexual Conduct in the Second Degree, Criminal Sexual Conduct in the Third Degree , and Criminal Sexual Conduct in the Fourth Degree. Roughly, you could say that Assault With Intent to Commit Sexual Penetration is somewhat like "Attempted" First Degree CSC or Third Degree CSC. JB: If he were found guilty, what would the penalty have been? BJP: Assault With Intent to Commit Sexual Penetration, MCL 750.520g, is punishable by up to 10 years in Prison, and he would have been on the public Sex Offender Registry for the remainder of his life after being released from Prison. So basically, there was no way we could lose this case.
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JB: So can you explain how you won the case and got another verdict of NOT GUILTY? BJP: The case was won in jury selection, also called "voir dire," and in opening statement. I've read before that something like 85% of jurors make up their mind by the conclusion of the opening statements, so I put a ton of work into those two segments Every criminal trial breaks down into five separate and distinct phases. The first phase is the jury selection, also known as "voir dire." In voir dire, the attorneys gain an opportunity to open the jurors minds to accept the arguments we will make at trial. The next phase of the trial are opening statements, followed by the prosecution calling their witnesses, including the accuser, and the defense attorney cross-examines them. After the prosecution rests its case, the defense attorney can call witnesses of their own, including the defendant himself. However, there is no obligation to do so because the defendant has no burden of proof. Finally, each side gets to give a closing argument. I like to think of the trial as kind of like a football game. Each one of those five phases of the trial represents an opportunity for the defense attorney to advance down the field. You need to go 100 yards into the end zone, and that represents an acquittal. When you think about it that way, each of the five phases of the trial represents an opportunity to go as many yards down the field as possible. In jury selection, maybe we can go five or 10 yards toward an acquittal, but sometimes it's possible to go 20, 30, or even 50 yards. So why not? In this particular case, where my client was accused of Assault With Intent to Commit CSC Involving Sexual Penetration, I think we went a good number of yards down the field just in the jury selection alone. I'm not going to reveal on my strategies on the Internet because I owe it to my clients not to hurt their cases, but I will say this: jury selection is the time to open the jurors minds to receive the argument that will be made for the rest of the trial. In a case where one of my clients is accused of something serious like Criminal Sexual Conduct, the number one thing that the jurors need to understand is that they cannot trust the false accuser. Our natural tendency is to think that just because the prosecution is investing their energy and has brought criminal charges, that must mean that the accused person is guilty – otherwise why would they do that? The presumption of innocence is more of a legal fantasy that a reality.
RELATED: Read the news article about this Criminal Sexual Conduct NOT GUILTY verdict
Io in jury selection, we are going to be discussing whether the jurors are open to the possibility that there are in fact people out there who would falsely accuse someone of Criminal Sexual Conduct, or sex crimes, or whatever you want to call them. Generally, the jurors will agree that they are open to that possibility. But we must go one step further and ask them to actually imagine the types of scenarios where that could actually happen. We talk about how we know these things happen because we hear about it and see it in the news. We know people spend 20 and 30 years in prison sometimes for things that they didn't do, and it is very sad. So… I've already gone further than I wanted to, so I'm just going to leave you with this proposition: getting the jurors to accept that this particular accuser is a liar and a manipulator her begins with setting off the images of those liars and manipulators that are already uploaded into their minds. There is nothing tricky or should I see about this, either. It's effective, and it's the lawyer's job. JB: What was the composition of the jury, as far as men and women goes? BJP: there were 11 women and one man. They were a great and attentive jury, and I appreciated every one of them individually. JB: So do you feel good that you were able to get your client off? BJP: well, I think I know where you're going with this, but before I answer that question I have to let you know that I take issue with the phrase "getting my client off." This person was truly innocent. I understand that the average person believes that a huge percentage of the people charged with crimes are guilty. The fact of the matter is, all anybody really has to do these days is call the cops and say "he raped me, he assaulted me," and they're just going to believe that person and bring charges. It's really just that simple. There is no justice, only relief when an innocent person gets their life back. But to answer your question, I was very relieved. Not happy, just relieved. I must've slept for three days after it was over. Trial is an exhausting experience. You're up all night during the days in between. JB: So you're saying that anybody can call the cops and accuse someone of Criminal Sexual Conduct and there getting arrested? Doesn't the court and the Judge have a way to put a stop to that when the government tries to do that to someone? BJP: That is correct. Essentially someone calls the police, says that it happened, and that's it - you're in trouble. Judges have very limited power to do anything, and even when they should exercise their power to do the right thing, they don't. I think the bigger question that we have to answer is this: why don't police and prosecutors distinguished these cases and throw out the garbage ones? I can understand that if somebody is truly the victim of Criminal Sexual Conduct and there are no eyewitnesses there, that it wouldn't be right to just allow the perpetrator to go free. In fact, in every Criminal Sexual Conduct trial, the judge reads a jury instruction says that the alleged victim's testimony need not be corroborated by other evidence to prove the defendant guilty if that testimony proves guilt beyond a reasonable doubt on it's own. But what I really struggle with is the fact that there are so many cases where there is actual evidence of innocence that is ignored. Evidence that the accuser is lying, and they just try to sweep it under the rug. They're playing with peoples lives, and it means nothing to them. It's a very scary thought. JB: Sid you experience any problems with the way you were treated by the Judge or prosecutor? I know you've said in the past that many judges are pro prosecution. BJP: No, there were a few times of course when I disagreed with some rulings that the judge made, but by and large I felt that my client got a fair trial. That is not always the case. I've had trials where it feels like the Judge and prosecutor are tag-teaming me to try to destroy me in front of the jury. And I've got to find a way to rise above that and still win. JB: So do you think you did a perfect job? BJP: Of course not! Nobody is perfect. I'm a perfectionist, but I'm not perfect. I made mistakes at the trial – every attorney next mistakes and every child. There were questions I probably should've asked that I didn't, and even with all my hundreds of hours of preparation, certain things didn't come out quite the exact way I wanted them to. But in a CSC case, or any type of criminal case, I find that an analogy applies perfectly. It reminds me of a book that my grandfather gave me, "2201 Fascinating Facts." One of the fascinating facts was this list of all the different parts of the human body that you could lose and still live. Your arms, your legs, your spleen, the majority of your intestines, one of your lungs, and just this massive and amazing list of things. What really keeps us alive is a small core of essential parts (reminds me of some of the cars I've driven as a youngster, too). A trial is like that. The judge may yell at you during cross-examination tell you you can't ask questions that you thought were important to your defense. Your closing argument might be lackluster. But there is just this central core that, as long as you hold onto it, you can still win. That central core has to do with your connection with those jurors. They can be 10 million things going on in that court room, but when you train yourself to remember that it's all about those 12 people, that's what really counts. JB: How come some trial lawyers win and their clients are acquitted, while other trial lawyers lose and their clients end up in Prison with a felony record for Criminal Sexual Conduct? BJP: Well, there are the obvious reasons. Some attorneys don't prepare, don't care, don't get along with their client because they'll take any case for whatever little amount of money they can get, etc. That's just bad lawyering. People that have those lawyers are never going to stand a chance, and it's very sad. But even if we isolate the group of lawyers who do work hard, some of these lawyers still lose quite often. Why is that? Well I think it has to do with the fact that a lot of lawyers think they are there to defend their client. He's a nice guy. He works hard. He wouldn't do this. That's the wrong approach. Almost 100% of the energy during a trial should be devoted to attacking the false accuser – prosecuting them if you well. When a great friend and mentor taught me that, it changed my life and career. In my opening statements now, I regularly get up without hesitation and call the accuser "sick and twisted" if I feel that that is the truth of the matter. We cannot expect the jury to reach any conclusions that we are afraid to say. JB: Interesting. Now, if I'm facing a Criminal Sexual Conduct charge, how can I get you to defend me? Can you get me a Not Guilty verdict, too? BJP: If you need a Criminal Defense Attorney and are interested in hiring us, just call us up! (248) 731-4543. Someone there can guide you through the process and get you in touch with me. Not every case can be won, but part of being a good trial lawyer is distinguishing the cases that have that potential from the ones that don't. The approach the lawyer takes will depend on that. JB: Well, thanks for your time. Always a pleasure picking your brain. BJP: likewise, my friend. I hope you had a fun and relaxing Memorial Day weekend. Let's hope we can chat again soon...
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