After 30 years as a criminal defense lawyer, I’ve defended everyone you can imagine, charged with every kind of crime you can imagine.  Still, I have to say that sex offenders are in a category all their own when it comes to criminals.

I think the biggest difference comes from the fact that sexual assault is an “intimate” crime–not that the perpetrator wants “intimacy” with the victim as most of us would consider it.  Almost every other crime I can think of–robbery, theft of a car, assault, and even murder doesn’t involve such close contact with the victim.

Sexual assault is really “up close and personal.”  It takes a different type of criminal to commit this kind of crime.

I’m not a psychologist, but in my experience most sex offenders aren’t really turned on by the sexual act.  Instead, it’s the power and dominance they have for a brief time.  Around men, quite often, sex offenders are losers and unable to hang with men in easy relationships.  Most sex offenders I’ve worked with are loners, misfits, or outcasts.  By assaulting women, they “prove” to themselves they are studs and attractive.

One particularly dangerous offender I represented years ago, before his sentencing for several rape convictions, bragged to  the probation officer he’d had sex with 100 women.  That statement showed up in the pre-sentence report to the judge.  At his sentencing, the defendant corrected the report to say he really had sex with over 200 women!!  (If true, I hope they weren’t rapes…)

Almost every sex offender I’ve represented has denied the act and blamed everything on the woman.  Often, they use force.  When the victim fights back, the offender can accuse the woman of “starting it.”  Even after the victims come into court and testify against the offenders and juries find them guilty, many still deny their guilt.

Guys who are “kiddie twiddlers,” who sexually assault children, are the hardest to work with.  The usual reaction I get is, “I know I didn’t do it.”  Then, even after I confront them with evidence through statements of the victims, forensic proof, and other witness’ statements, the offenders still deny everything.

At first, I assumed this was simply the usual human response to deny or minimize our guilt for acts we’ve done.  Now, I realize something more subtle is at work.

These men who assault kids find the act inexcusable, like  normal people do.  They think it’s so horrible that they, the sex offenders, could never possibly have done it because…well, because  “I could never do anything so horrible and gross.”  They block any memory of the act from their conscious minds–which is why they think they’re being honest when they say, “I didn’t do it.”

Any thoughts from you?

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Later, he confessed to everything.

Charged with 1st degree murder, he found it hard to plead guilty and check himself into a lifetime of prison, so he went to trial. His only hope lay in two possible outcomes: the jury would feel some sympathy for him and let him off with less than Murder 1 or the facts, as they came out in the trial, wouldn’t support the full charge. A mosquito had more hope of surviving the winter than Jim did of getting any leniency.

I was appointed to defend Jim.  How could I defend a guilty person?  The answer starts with: he was guilty…but of what?

When the Medical Examiner who conducted the autopsy on the victim testified, he broke the case wide open for Jim.

To prove Murder in the 1st degree, the prosecution must show that the killer “premeditated and intended” to kill the victim. That means the killer had some time to think about things, to realize what he was doing and, if possible, stop before death. For instance, if someone shoots a victim once, you could say it was intentional or maybe even accidental. But the third, fourth, and fifth shots would certainly be premeditated. In Minnesota, 2nd degree murder is defined as “intentional but without premeditation.”

Justivce means not only convicting a guilty person but also making sure the conviction fits exactly what the person did. Which one was Jim guilty of?

The Medical Examiner testified about the cause of death—choking around the throat that cut-off air to the victim which suffocated her. But…in this case, when Jim started to choke her, he broke a part of her spine that would have caused death instantaneously, without the long suffocation. For the defense, the Medical Examiner opened a huge door.

If Jim had broken her spinal column quickly, killed her instantly, then how could he have thought about what he was doing? How could he have premeditated the killing? He certainly intended to kill the girl, but did he have time to contemplate it, to premeditate the killing?

The jury decided he did not and found him guilty of 2nd degree Murder.  You may disagree that he deserved a break but to answer your question of how could I defend a guilty person, this case shows you how. I have to admit it wasn’t easy, but I think justice was done here.  What do you think?

The post How Can You Defend a Guilty Person? Part II appeared first on Colin T. Nelson.

Most people assume that a jury will find the accused guilty or innocent (not guilty).  Or that a decision of not guilty means they didn’t do it.  The media often has the same misunderstanding and uses the word “innocent.”  People think the prosecutor presents evidence of guilt and the defense presents evidence of innocence.  Wrong.

There are no jury trials in America today that have anything to do with innocence.  That’s because of three reasons:

1.  The accused is already presumed innocent during the entire jury trial.  No matter what the prosecutor says or how bad the evidence against the accused looks, he is presumed (automatically) innocent—unless the jury finds him guilty at the end of the trial.

2.  The 5th Amendment to the Constitution guarantees that an accused may remain silent during a jury trial and can’t be forced to testify.  He may offer evidence to show the jury he’s not guilty, but he doesn’t have to prove that he’s innocent.

3.  Since the government has accused a citizen with a crime and has the power, the government is required to prove guilt.  They have to prove it beyond a reasonable doubt.  They must also convince all twelve jurors.  If the government fails, the jury is instructed to find the accused Not Guilty.

It doesn’t mean the accused is innocent.  Instead, it means the government failed to prove their case.

There are only two verdict forms given in a jury trial: Guilty and Not Guilty.  There’s no verdict of Innocent.

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1.  Celebrity lawyers get their reputations in many ways—usually it’s because they began as exceptionally good lawyers.  This involves hard work, preparation, knowledge of the law, and an ability to work effectively with prosecutors and judges.  If you are charged with a crime and can afford to hire a lawyer like this—do it!  You’ll be in good hands.

2.  Sometimes, a celebrity lawyer get to that status by representing other celebrities—and may really be a worthless lawyer!  Obviously, avoid these.  But how can you tell?

–A bad lawyer will rarely talk with you or listen to your ideas.

–A bad lawyer won’t tell you about the evidence against you, possible defenses, and any communications from the prosecutor.

–A bad lawyer won’t be able to answer your questions about the law—he probably doesn’t know much law

—A bad lawyer spends more time talking to the media that talking to you.  If you learn more about your case in the media that from your lawyer—that’s a bad sign!

–A good lawyer is one that you feel comfortable with and can trust.  Your interests always come first.  (Even before you pay)

3.  If not a celebrity lawyer, who should you choose?

–If your income is low, go with a Public Defender.  They are experts in criminal work because that’s what they do all the time.

–A possible problem could be their caseloads which are high.  You must make certain the Public Defender lawyer has enough time to give your case her full attention.

–Check the local BAR Association.  They often publish lists of lawyers who are considered the “best” in their fields.  The lists come from other lawyers who recommend the “best” lawyers for the list.  This is really the bottom-line: do other lawyers in the area respect the lawyer you’re considering?  And it could be the best are also celebrity lawyers.

–Depending on your income, these “best” lawyers may be willing to take your case at reduced fees.

In the meantime, good luck.  But the best advice I can give you is to not get charged with a crime!!

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For 150 years, courts have recognized that people who have a significant mental illness may be found not guilty of a crime—even it they did the crime.  The Amygdala Hijack is a term psychologists use for an activity in the brain where it goes “haywire.”  Each of us has two parts (and more, of course!) to our brains.  They’re called the neocortex and the amygdala.  The neocortex is the thinking, rational part that over rides the primitive, impulsive part called the amygdala.  We need both because in times of danger, the amygdala fires and tells us to run!  In other situations, where we may be tempted, at first. to violence the neocortex acts.  It tells us to “think before acting.”  See this article in Psychology Today.  http://www.psychologytoday.com/files/attachments/51483/handling-the-hijack.pdf

However, for people who suffer from post traumatic stress disorder, the brain is slightly jumbled.  PTSD means the person has experienced a traumatic incident that scarred them.  It’s so bad they continue to re-live the situation.  Even in the absence of an actual threat.  The person’s brain sees the threat while the amygdala fires to warn the body.  It fires so  fast that it “hijacks” the neocortex so the brain/body act impulsively as if the threat were real.

So far, there aren’t any states that accept the amygdala hijack as a defense.  But PTSD was tried during the 1980s.  Particularly for Vietnam vets and the Battered Woman Syndrome, lawyers attempted to convince courts to allow the defense.

The weirdest case was the “Twinkie” defense.  The accused was found not guilty because he’d eaten dozens of Twinkies right before the crime.  He was so full of sugar his brain malfunctioned.  Of course, this happened in a California court—no one else agrees with it.

But there is a lot of legitimate research and psychological experts that say our legal system is long over-due for an up date into the 21st Century regarding mental illness.

What do you think?  Should we open the doors to the use of these mental illness defenses?

In my own research for the new book, I created a character who is accused of killing his wife.  The defense lawyer, Ted Rohrbacher, wants to try the amygdala hijack as a defense.  The prosecutor fights him every inch of the way.  There’s another problem, too.  No one can find the wife’s body.  So, can the husband be found guilty of murder if there’s no body to prove she died?  Even if he did kill her, can he get off because his brain was hijacked by the amygdala?

The book’s coming out soon!  I’ll let you know when.

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