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Confession with an apology

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March 26, 2005, 13:14
Martha W. Warner
Confession with an apology
Have a case with a video confession that contains a lot of sorrow , crying and apologizing as Defendant admits to molesting 4 little girls including his daughter. One of my Judges thinks that a jury will give this guy Probation because the tape is so exculpatory. The Defendant will not testify if I offer the tape. I know some of you have done this type of case before. Have a couple of weeks to decide but I'd like to hear the pros and cons.
March 27, 2005, 02:43
BLeonard
If you have an otherwise strong case you might consider holding the confession back until the very end. If you feel like you are there, rest without it. I've done it maybe three times and it is a nail biter. However,I really don't see probation for a child sex offender with four victims. That would be one weak a-- jury. Of course he's weeping now-either from true remorse or because he's caught and embarrassed-but next time the urge hits, would those jurors want to be responsible for what happens?
March 28, 2005, 10:33
GG
Sounds mitigating rather than exculpatory. I'd try to focus the jury on the amount of time between the acts charged and the confession, as well as the fact that he didn't apologize until caught.

He was only sorry once he was caught and began worrying about himself. That would be my theme.

Before I made a deal about putting the tape on vs. defendant testifying, I'd ask his attorney why he is not pleading guilty to the jury or without an agreed rec to the court.

If he puts you, and more importantly, the child victims through the horrors of reliving the victimization through a jury trial and having to testify, then I wouldn't do him or his attorney any favors.

[This message was edited by Greg Gilleland on 03-29-05 at .]
March 28, 2005, 10:44
JB
I can't imagine trying a case of child abuse without telling the jury that the defendant admitted committing the crime. Awfully risky to make the child the focus of such a case.

If you are worried that a jury will give probation for such an awful crime, simply because the defendant cries on a videotape, then you've got bigger problems than that decision.

Let the jury know how many years the child will spend crying when -- he/she goes on their first date, prom, etc. Not to mention the issues of marriage and raising their own children. Have an expert describe the life-long effects of child abuse. In other words, you make the jury cry for the child.

A few tears by the defendant should not balance out the awfulness of the crime. And, if it does, then so be it, as we accept jury punishment. But, the more awful verdict would be Not Guilty.
March 28, 2005, 13:02
Clay A.
Like many of the other posters I think the decision to not put on relevant evidence almost always backfires. Put that tape on after being set up just like John and others suggested. Such as: Officer at the time this video was made did the "hero" know it was all over? Did he break down the very first time you asked? How long did he weep after the camera was off? Never provide the defense with the opportunity to have an "ah Ha" moment in front of the jury introducing something you had that showed the defendant was guilty.

Totally unrelated, don't listen to judges telling you what juries will do. Judges resolve conflict. No case is ever good enough for the prosecutor to try. No defense is ever solid enough the defense shouldn't plead.

You gut told you that molesting 4 little girls, including your daughter, merits pen time in your jurisdiction. You are right. Watch that jury send him right where he belongs. If they don't, at least you didn't fail to do your part.
March 29, 2005, 10:05
Tim Cole
I vote to put it on. I can't imagine a jury buying into an apology for a molester of FOUR children. If you don't, and the jury lets the guy go you will forever second guess your decision.
March 29, 2005, 16:04
Diana Adams
Use the tape. I would pick out phrases he uses to turn on him in closing: "I'm sorry" - that's right, he is one sorry SOB. "I 'm sick" - most people see a doctor when they have symptoms, did he go to the therapist the 1st time, 2nd time, etc. As much as it may turn your stomach, study the tape. I bet he gives you the ammunition himself. Good luck! Besides, I think the good people of Bee County don't want him in their community.
March 29, 2005, 17:08
ML
I vote to use it. As a side note, you might have some issues with the extraneous stuff in the confession (until you get to punishment). Aside from that, lay the ground work for your assault on this piece of crap in voir dire. You might ask the panel whether they have encountered a situation where their kids have been caught red-handed doing something wrong and then started apologizing and crying like crazy. Try to find out who your bleeding hearts might be. Of course, you can't commit them and ask them how they would handle or react to a confession like the one you have. But the panel will know where you're headed and you can probably pick out your weak ones and your strong ones and act accordingly. You'll find 12 who will slam dunk that pervert, crying or not. All of the previous posts are excellent but John's angle is sure to evoke a lot of sympathy for the victim. Those crocodile tears were shed because he got caught. What about the years of tears which will be shed by those little girls...
March 30, 2005, 10:21
WHM
but I would always put on a confession. The last thing you want happening at trial is for the crossexamination to "uncover" the fact that an admissible statement was provided that you are "hiding." They may not be able to get into the contents of the statement without your introducing it, but if the jury thinks you're keeping something from them, that will never work to your benefit.

Besides, assuming you convict him, don't you think he is likely to take the stand and put on the same show? The punishment aspect of the case will likely be the same either way.
March 31, 2005, 18:43
Martha W. Warner
Woke up last night at 3AM and made the decision to offer the whiner's tape. Your ideas are great and I like the idea of touching on the confession in voir dire.Have another issue that worries me as well. I have two victims in a three count case and the Defense has not asked for a severance. I have an oral sex with one child and then he exposed himself to both kids on another date. The part that makes it interesting is that I will be able to offer other extraneous offenses for two kids not just one. Am I running the risk of a reversal in the face of that recent case where the judge stacked the sentences? Have no desire to try it twice.
April 01, 2005, 01:40
BLeonard
I wasn't necessarily advocating for not using the statement in this case; I don't know enough about the facts. I do believe that there are a narrow set of cases where it is good strategy to "hold back" a statement or not use it at all. Suppose the defendant sets up a bogus self-defense claim in his statement? There are times I would want to hold it and force him to take the stand. As defense attorneys often say, we can't cross-examine a video tape.

You must file a motion ahead of trial to keep defense counsel from mentioning the contents of any self serving defendant statements or the fact that the defendant gave a statement at all. For this proposition, cite Allridge v State, 762 SW2d 146 (Tex.Crim.App. 1988); 489 U.S. 1040 (Feb. 21, 1989), cert denied. then if you try your case correctly you are in control of when, if and how any statement comes in.

Although it is the rare case where such a strategy is needed, they do come around. Additionally, an Allridge motion keeps you in control of the how and when even where you plan to use the statement all along.

One last: Your defendant is eligible for probation? Have you considered how you will qualify your panel when the defendant has more than one victim? The defense lawyer may not be able to get into the facts but the wiley one will read the indictment, which she can do. You might consider waiving the exposure on the non-agg sex assaulted child. It is only a ten-year offense and could be the reason you keep good State's jurors whom you will otherwise lose. If that second exposure occurred in the presence of the agg sex assaulted child there are still a number of strong arguments to be made for its admission.