Last week, we beat a nine-count criminal sexual assault case after getting a separate four-count CSC case, with a different alleged victim, dismissed. The accused in both cases was one of our long-time divorce clients; a husband and father. We helped him every step of the way, not only in the pair of capital criminal cases, but also in a related pair of civil proceedings: the divorce and child abuse/parental termination proceedings.
His is a cautionary tale about the importance of carefully selecting a spouse or life partner. This post examines what can happen to a parent when state actors believe the false allegations of sexual assault.
Our client’s divorce began typically enough with a series of high-conflict child custody and parenting disputes. Wife took her two children along with our client’s then 4-year-old daughter, born during the marriage, and hit the road under the cover of night; she absconded in violation of temporary custody orders.
After surfacing in Connecticut, our legal team sprang into action to secure an order from the Michigan family court for the return of our client’s daughter. Next, we obtained a companion order from a local family court in Connecticut. This is when his wife began to play dirty.
At first, wife alleged our client was abusive and obtained a temporary injunction [known as a protection order or PPO]; we had our doubts about her allegations of assault. As soon as we obtained court orders for the return of the client’s four-year-old daughter, wife amended her assault allegations to include sexual assault against both her, and against their daughter.
We hired local counsel and appeared in Connecticut pro hac vice to locate the minor child and, with the involvement of local law enforcement, returned her to our client’s home here in Michigan. Ultimately, the Connecticut PPO was dismissed.
Wife amplified her allegations of child sexual abuse against their daughter and reached out to husband’s former live-in companion to complain about the array of proceedings then pending in the two separate state family courts. A conspiracy to bring down our client and ruin his life was unleashed.
A few weeks following the return of his daughter, a detective from the county sheriff visited our client wanting to speak with him about allegations of sexual abuse; the detective further indicated that the allegations concerned not only his daughter, but the twin daughters of his former live-in girlfriend.
We communicated on our client’s behalf with the detective to learn more about the allegations. We also cooperated with scheduling a forensic interview with our client’s daughter at the Sheriff’s request. Unbeknownst to us, the twins, now 19-years old, were also forensically interviewed. The bottom line was that our client’s wife and the twins provided graphic statements to law enforcement against our client.
Based on these allegations, our client was charged in two separate cases of multiple counts of criminal sexual conduct [CSC]; the case against his own four-year-old daughter contained four counts of first degree CSC; the case against the twins contained a nine count mix of CSC allegations. The twins alleged conduct from over twelve years ago.
At his arraignment, despite our arguments about the status of his divorce proceeding, the debunked PPO allegations, and the favorable family court rulings, our client’s bond was set at half a million dollars in each case. Fortunately, he was able to post the deed to his home as collateral and get out of the county jail on bond. Otherwise, our client would have awaited his trials while being incarcerated. He posted bond back in early 2022; his criminal matter remained pending until just last week when he was exonerated via jury acquittal on the case with the twins.
We were able to secure a nolle prosequi [dismissal by the county prosecutor] prior to the scheduled preliminary examination in the case involving our client’s daughter. Our theory was that the prosecutor knew that wife was not a credible witness and that she would never return to Michigan to provide the testimony necessary for a conviction. We believed the prosecutor feared that we would prevail at trial. But the prosecutor, however, did not dismiss the case involving the twins; that case dragged on for years until our client recently had his day in court.
As is typical of any parent facing CSC allegations against their child, the prosecutor lodges parental termination proceedings in the family court. Termination proceedings can be brought simultaneously with the CSC criminal charges or subsequent to those charges.
Not only did our client spend a week in the county jail with capital criminal charges hanging over his head, but he also faced losing all rights to his daughter forever. This parental and legal limbo lasted over four years in our client’s case. Understandably, he was not in a good place.
During the CPS investigation, we learned that wife had one of her other children removed from her care. Accordingly, she was ordered to submit to a psychiatric evaluation; she refused to comply.
Fortunately, we were able to stay our client’s parental termination proceedings while his criminal case remained pending. During this stay, we also secured weekly video and eventually supervised in-person parenting contact with his daughter on the theory that he remained innocent until proven guilty. As is often the case in CSC cases, the accused is deemed guilty unless and until proven innocent by a jury.
While these weighty matters remained pending, our client’s daughter went from preschool to the third grade. We had a series of meetings with him over this time period where we counseled him to stay occupied at work and to keep faith in our criminal justice system.
The reason for the lengthy delay in these protracted legal matters was that our legal team embarked on detailed significant discovery in his parental termination and capital criminal cases. Our investigation uncovered information that the twins had lodged prior sexual abuse allegations against other men in their mother’s lives, including their own father. The prior allegations were made around the same timeframe as the now-stale allegations of abuse against our client. Their allegations against the other men were ultimately unsubstantiated.
Although we were able to use this information to great advantage in the parental termination proceedings, the rules of evidence tightly restricted our use of the evidence in the capital criminal trial. Nevertheless, in advance of the scheduled trial, we moved the trial court for what is known as a Butler hearing. This procedural device allowed us to see how far the trial court would go relative to the evidence that the twin complainants had issued prior false allegations of sexual assault against other men.
At the Butler hearing, the trial judge indicated that she would allow us to open the proverbial evidentiary door relative to the prior false allegations of abuse. But she indicated it would be a “game time” decision made during the actual jury trial.
We also sought and obtained the psychological records of one of the twins. The trial judge reviewed the alleged victim’s psychological records in camera to determine whether they contained any exculpatory evidence and reported they did not contain such evidence.
Not willing to wait for a “game time” decision on the issue of prior false allegations of sexual assault, we lodged an interlocutory appeal on behalf of our client with the Michigan Court of Appeals.
Obtaining the psychological records and concluding our appeal took more than a year. Our application for leave to appeal was granted by the Michigan Court of Appeals and oral argument was scheduled in Lansing several months later. Although the trial judge’s ruling was affirmed, the appellate court remanded the case with some key instructions regarding how we could question the alleged twin victims on cross-examination at trial.
For example, the Court of Appeals indicated that we were not precluded from exploring whether the twins had ever been told to lie about their father by their mother. The appellate court also indicated we could explore the possibility that the twins were lying again at our client’s jury trial. In other words, we obtained a green light from the Court of Appeals to attack the complainants’ credibility by inquiring into whether they had previously lied about their father.
We took full advantage of this nuanced ruling to fine-tune our cross-examination of the alleged victims. Our confidence was nevertheless tempered because we knew the rules of evidence prevented us from presenting the whole story to the jury. That story was rife with facts of an entire series of prior false allegations against several significant others in the victims’ mother’s life.
Finally, a year after the appellate ruling, our client had his day in court. By the time a jury was selected, he had been living under the cloud of capital criminal charges for approximately 54-months.
On the day of trial we arrived at the courthouse to select a jury from a pool of about 200 county residents; the proverbial jury of your peers. Because our client was charged with a capital offense [meaning that life imprisonment was a mandatory sentence upon conviction] each side had a dozen preemptory challenges within the jury venire. A preemptory challenge means the prospective juror is simply excused without the party having to articulate any reason whatsoever for the dismissal.
After several hours of judge-directed voir dire, the jury pool was significantly curtailed. Quite apart from the parties’ challenges, prospective jurors divulged a multitude of reasons for wanting off our case. The following are among the excuses given that day:
Each of these potential jurors were excused by the trial judge. The voir dire process consumed the entire first day of trial.
When the prosecution began their case in chief, they surprisingly put the parents of the twins on the witness stand first. Suspecting that we were going to call the alleged victims’ parents, perhaps the prosecution’s strategy was to steal our thunder.
Neither parent of the twins made a good witness for the prosecution. Both the mother and father of the victims -long divorced- testified they harbored “suspicions” about our client going back as far as 2020, but neither parent took any action. Father testified that he eventually contacted the state police but felt like he got the “run around” and dropped the matter.
On cross examination of the parents, we were able to detail the dysfunctional relationship each parent had with their twin daughters. The big question left hanging in the air was: why didn’t you do anything if you thought that your daughters were being abused?
Next came the twins themselves. Each gave excruciatingly detailed testimony about the abuse they allegedly suffered at the hands of our client. On cross-examination, however, we were able to expose the flaws in the differing timelines the sisters gave at the preliminary exam and during the trial, not to mention the vast discrepancies between the testimony of the twins themselves.
We also exposed their prior testimony indicating that their mother instructed them to lie about their father. Our scope of cross-examination also included probing their potential motive for lying about what happened; the twins each indicated they were concerned about our client’s minor daughter and that they did not believe he should have custody of this girl based on what they said happened to them. This testimony just did not ring true.
After two days of deliberation, the jury came back with an acquittal on all nine CSC counts. Our effective cross-examination was possible due to the thorough preparation and long-term investigation of each of the many angles of all of these cases: the two separate capital criminal cases; the long-closed CPS cases; and the simultaneously pending parental termination case. Cross-referencing the facts from across these several cases was instrumental in allowing us to move seamlessly through cross-examination of the prosecutor’s witnesses. We planted a series of reasonable doubts in the collective mind of the jury.
Relentless preparation and a confident presentation paid off with an acquittal. Our client faced the prospect of spending the rest of his life in prison. The pressure was on our legal team to deliver lifesaving results.
When an accused is convicted of first-degree CSC, they do not get to walk out of the courtroom to await their sentencing hearing. Our client was able to walk out of the courtroom and was shortly thereafter reunited with his 9-year-old daughter.
If you or someone in your family faces difficult court proceedings, contact our law firm to schedule a free consultation. We can assess your particular circumstances and advise you of a range of legal options.
Post #316
Divorce | family court | criminal sexual conduct | child protective services | capital offense | jury trial | child custody
