Florida Criminal Defense and DUI Defense Blog

3May, 21

prosecutors don't always do what's rightI want to talk about prosecutors. Prosecutors have a tough job.

Defense attorneys, our responsibility is to zealously represent our client. The prosecutors’ job is to seek justice. These are not mirror images.

I’m fond of telling young lawyers, “You can’t count on prosecutors to do the right thing.”

Now let me explain that.

I don’t mean by that that prosecutors are evil. They’re not. They have an important job to do and, frankly, it’s not a job I would want. It’s a challenging job.

But as a defense attorney, you have to be prepared for a prosecutor not to do the right thing, or at least, not to see what you see as the right thing to do.

Let me tell you a horror story of one of the worst examples of that.

I once represented a young man who was accused of kidnapping and rape (they call it sexual battery in Florida). He had a checkered past. He was only recently released from prison prior to the incident they are accusing him of (by “recently” I mean he’d been out for a couple of years). He was not an angel or a choirboy.

He gets accused of kidnapping and rape, and I pick up the file and I read through the report. Here’s what the accuser claimed happened:

She said, “I saw him at child support court and he was angry about my seeking child support for our baby. We weren’t together then, he was my ex-boyfriend, but he was the father of my baby. He yelled at me all the way down the hall. He yelled at me in the elevator. We got off the elevator and we were by the metal detectors at the front door of the courthouse and he was yelling at me again. He walked out first and the guards that work the metal detector told me to go right across the hall and get a restraining order, an injunction against domestic violence. So, I went in there and I got the paperwork and I took my baby home.

“I went in my house in Port St. Lucie and I put the baby in the playpen. Then I walked out through the garage down my driveway to get my mail. When I came back into the garage, he’d been hiding in my garage and he took me at gunpoint back into the house and he put me up on the kitchen island and he raped me.”

That was the ‘gist of her claim.

Well, I went and talked to my client, who was in jail being held without bond, as you can imagine. If he were convicted of these charges, he would have been sentenced to life in prison, mandatory life without parole because he was what’s called a prison releasee reoffender. So, it was a high stakes case.

I go out and I meet my client and he said, “I didn’t do it. I wasn’t there. I wasn’t at her house. I wasn’t at the courthouse.”

Okay, let me do my job.

I went about investigating his case. I started by going to the courthouse and talking with one of the very helpful people that runs courthouse security. This was a long, long time ago. We had cameras on every hallway in the courthouse. I got him to put me in a room with the camera guy and pull up the date, so that I could look to see if they’re arguing out in the hallway and if they were arguing in front of the metal detector.

And what I saw was – my client was not on camera on any of the three floors of the courthouse and he wasn’t on camera in front of the metal detector. I interviewed the guys that worked the metal detector and nobody remembered him.

I looked across the hall and I noticed that that was not the family court clerk’s office where a person can even get a restraining order. At that time, it was the law library. The clerk’s office where you get restraining orders, at that time, was down the hall in what we now call the new courthouse wing. I’ve been at this long enough to remember that that was the original courthouse.

Anyway, I went down the hall and checked with the people that do restraining orders and one of them said she came in to get paperwork but she never brought it back.

I noticed, as I was coming out of the door of that clerk’s office, that across the hall was the child support clerk’s office, so I went in there to look up the case. It turned out that, not only had my client not been at the courthouse that day, but the case wasn’t even in court that day. And this lady’s claim for child support against my client – the case had not been in court for six months. And when it was in court six months earlier, it was postponed without being rescheduled because my client not only wasn’t there, but he hadn’t even been served with the child support claim.

So, I figured this woman was clearly lying about what happened at the courthouse.

Then I did the depositions of the police officers involved in investigating her claims. Without being too graphic about it, I learned that there was no forensic evidence left on the counter top on the kitchen island. In a sexual assault case, you might expect there to be DNA evidence. You might expect there to be bodily fluids. You might expect there to be hairs. None.

This to me seemed unusual if what she was claiming happened at her house was true. We already knew she was lying about the courthouse, but that didn’t mean she was necessarily lying about what happened at her house, so we had to go through this. No forensic evidence of any kind. Not even any fingerprints showing that my client had ever been inside the house.

Then I take the woman’s deposition. It was the last thing I needed to do before taking the case to trial.

I asked her to explain the lack of any forensic evidence at her house. What she said was, “He wore a condom.”

The kitchen island is three feet high. My client was five feet even, which means the kitchen island came up to his chest.

She said that his feet never left the ground. He never put the gun down. And while holding the gun on her with one hand, he was able to reach into his pocket, pull out a packaged condom, open the package, take the condom out of the package and put the condom on, and then still, without putting the gun down, and without his feet leaving the ground, he sexually assaulted her on top of the kitchen island.

Now I don’t want to make too light about this, but if his feet never left the floor and the kitchen island is three feet tall and he’s only five feet tall, he probably belongs in the Guinness Book of World Records for male endowment.

When the deposition ended, and I stayed at the prosecutor’s office, and I said, “Look, she’s lying about this. She’s lying about this. She’s lying about this. She’s lying about this. This never happened.”

The prosecutor looked at me and said, “I’m not going to tell her she wasn’t raped. Let a jury tell her.”

So, this case had to go to trial and my client had to sit there and rely on me, and I had to rely on the jury to do the right thing.

I’m good at what I do, and I tried that case with as much passion as I’ve tried any case. Fortunately the jury did do the right thing, and they very quickly came back with a verdict of not guilty. And he’s a free man today.

I shouldn’t be telling you that story about a trial victory because the prosecutor should have done the right thing and dismissed the case. And it’s a good thing that I didn’t count on her doing the right thing, and I did all my homework so that I could win the case at trial. That’s my job. It’s not my job to rely on prosecutors to do theirs.

Attorney Mike Kessler
Written by: Attorney Mike Kessler

Attorney Kessler has been practicing criminal law in Florida for 30 years. He is recognized as is a leading authority on drunk-driving defense as well as a founding member of the Saint Lucie County Association of Criminal Defense Lawyers and co-author of The DUI Book: Florida Edition, the definitive resource on DUI in Florida.

To speak with Mike, call 772-466-4900 or click here for a free consultation.

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