Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.
Simply put, the penalties for a child abuse conviction in Florida are bad. Depending on the type of child abuse involved, it can range anywhere from a year in jail up to life in prison. It can actually result in the death penalty. For example, many years ago I defended the most serious mass murder in this particular county, and the defendant was extremely difficult. In retrospect, I wish I had known about brain imaging. This difficult individual was convicted of having shot three victims who were under the age of 12, which is considered a statutory aggravator. A statutory aggravator is a fancy way of saying that something enhances a sentence by an act of law, specifically a statute. Under Florida’s death penalty statute, there are a series of grounds for aggravation that indicate when the death penalty is more appropriate. They also indicate grounds for mitigation of sentence, which are legal reasons for a sentence of life in prison rather than the death penalty. In this particular scenario, three of the decedents were under the age of 12. As a result, the individual was sentenced to three consecutive death sentences. If the decedents were adults, the individual would have received consecutive life sentences. The penalties for child abuse convictions are bad. These cases need to be handled with the highest level of expertise.
What Are The Possible Defenses Used In Child Abuse Cases?
There are several types of defenses that are specific to these cases, and some that are general defenses. The classic example of a type of defense that would fit this and many other types of cases is what we loosely call a SODDIT defense. That acronym simply means Some Other Dude Did It. That’s one defense. The first time I used the SODDIT defense in a major felony trial, it was on a double capital sexual battery involving not one but two children under the age of 12. The evidence quite clearly showed that the children had physical injuries to their genitalia that were not just consistent with sexual abuse as a form of child abuse but they were specific for this type of child abuse.
The problem was the perpetrator and that’s why my client was found not guilty because it was quite clear the children had been abused but based on their history, based on the fact that they were both taken away from not one but both biological parents and the fact that both parents testified in a manner at trial that the jury perceived as very shady and dishonest, that’s why my client was acquitted. So that’s a classic example of a case involving child abuse, specifically sexual abuse and a SODDIT defense because some other dude did it. Another type of defense is it didn’t happen at all. This is where we come into the false allegation cases. When we’re talking about false allegation cases, we’re often talking about very, very young children. Sometimes they may be lying; and in other cases, they sincerely believe something happened to them that did not happen because of the influence of other people’s fear in their testimony.
There are other types of defenses that are more technical in nature. For example, there are times when the prosecution will overcharge an individual with these types of offenses and let’s say, for example, in my last case, my client was charged with four counts. However, based upon the law of the case, not something that someone can look up with a quick Google search on the Florida statutes indicated that you have to use a specialized legal search engine and you have to actually know what you’re looking for, we were able to successfully argue before trial that the individual could not be charged with two of the counts because the other two counts that were part of this four-count charging document meant that there would be a double jeopardy issue.
It was a very unique situation; you don’t run into it very often but basically, we couldn’t get the charges dismissed, rather the prosecution had to decide which charges they were going to pursue. That’s a very rare scenario, but that’s an example of where legal research, skill, experience and actual trial experience makes all the difference in the world because there are many defenses that you wouldn’t recognize by looking at it. Here is the defense that people may not think of as a defense. Somebody confesses, and then we find out that a technique was used unlawfully to coerce the confession. Well, that means that particular bit of evidence, the statement, is thrown out, it’s suppressed and that may not kill the case entirely but the motion to suppress may damage the case.
Let’s go back to the example I used in the beginning of capital sexual battery, two children under the age of 12, quite clear that they had been sexually abused. Let’s take that same fact pattern and imagine that my client had confessed. Well, in the actual case, he did not confess at all. In fact, he denied those. However, let’s say for the sake of argument that someone confesses after they have been improperly interrogated. Well, if that statement is suppressed and cannot be used at trial, the state’s case would be wounded so badly that could completely change the plea negotiations or result in an acquittal at trial. There is nothing worse from a defendant’s point of view between a situation like, “Gosh, you are charged with capital sexual battery. Your plea offer is life in prison, or if you lose at trial, life in prison”.
There is not much choice there. But if the statement is suppressed and there isn’t sufficient other evidence, the prosecution, based on the strength of the defense case, may just decide, “Maybe we should substitute the charge to a non-sex offense, maybe we should look at probation”, all of a sudden because the evidence was suppressed, the dynamic of the case with settlement parameters are entirely changed. Those are some defenses that can apply but I’ve barely scratched the scratch of the surface considering all the technical defenses that most people don’t think of because they are not in their latest Netflix movie involving lawyers in the courtroom drama. A lot of what people think they know about the criminal justice system is influenced by media, entirely wrong and the hard labor of actually working criminal defense cases is something that’s not very sexy for recreational media viewing.
Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.
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