Non-Capital Sexual Battery To A Person Over 12 Years Of Age Defense

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.

Good evening and welcome to Florida Criminal Law TV. My name is Stephen G. Cobb and we have been covering sexual battery offenses in this special segment of Florida Criminal Law TV. Now, we are going to cover sexual battery where the accuser is over the age of 12 so these are not capital offenses. There are many different variants of them. And generally speaking, they all involve mandatory prison, sexual offender designation, sexual offender registration and the possibility of a Jimmy Ryce Hearing. And a Jimmy Ryce Hearing is simply a civil commitment trial after someone who has served a sentence is then made a civil defendant for permanent lifetime commitment due to dangerousness.

So, these kinds of cases are very, very important when it comes to whether or not they are handled correctly. And I am going to give you two examples of real-life cases, again using anonymized names like Smith and Doe and things like that because that is appropriate. So, in my first example, a business owner had an employee and he asked a very simple question, “Why do you want to meet with me?” And the employee could not really give an answer. But he relented and in his mind, he was going to meet the employee at her normal location of work. Instead, she showed up to another location. And then, after talking for a few minutes, she left. He thought that is kind of odd. The next thing you know, an investigator is calling him wanting to interview him about allegations of sexual assault and sexual battery. He is blown away and calls me immediately.

I intervened and it took eight months before an arrest warrant came down. And sure enough, as the case is going on, here are some things we uncovered that played into the defense of this charge because these kinds of cases were really scary before the Me-Too movement. They were one of the types of cases that you just cannot get a fair trial on, to be blunt about it. You can get a trial as fair as possible but even before the Me-Too movement, it was very difficult because when the question is asked, “Is there anyone here who would not want to sit on this case because they could not be fair knowing it is a sex offense”, you would be stunned at how many hands go up in the air when we are trying to pick a jury. It is higher than for any other case, it always has been. And after Me-Too, it is even higher. And this is a real problem for people who are falsely accused.

So, we start at looking at motive and here is what we found. We found, first of all, that the complaining witness, the accuser in the case, did not want to meet her boss at the business where the premises were rented. She showed up at the business where the premises were owned. That is curious. Next, we find out that she consulted not one, not two, not three but four different plaintiff’s lawyers with her parents after the allegations. That is suspicious. And the whole time I am thinking to myself, this looks like financial interest but I cannot prove it. So, we took her deposition. And during her deposition, she testified under oath before trial, “No, I am not interested in money at all”, “What happened in those meetings with plaintiff’s attorneys”, “Oh, I was just trying to understand my rights and my parents did most of the talking, I was not really paying attention”, and you hear this all the time, “I am not trying to get money; I just want to make sure it never happens to anyone else”. Now, sometimes when people are saying this, they are telling the truth. When she was saying this, she was lying through these things known as her teeth.

How do we know this? Well, this was one of the very first Facebook discovery cases that was done in Florida. And trying to get evidence from Facebook or any other social media site is like trying to pull teeth from a hen. It is pretty darn hard even with tweezers and an unconscious hen. However, we were able to do it as part of the discovery process. We compelled her to give us those private messages, not a public stuff. And so, we proceed during the trial, I release all this information to the prosecutor who still, knowing that the complaining witness was going to lie on the stand, called her to the stand. Is that ethical? Apparently, this prosecutor thought so. I do not think you call witnesses to the stand if you know they are going to lie.

And the way they do the dance around that is they go, “Well, they might lie about this but they are not lying about this and I am only going to ask about this over here that they are not going to lie about”. It is like come on, get serious. And she was serious enough to call her to trial and we actually did have a trial with a 6-person jury, it will get 12 in Florida unless it is a capital case. And in court, I busted her and I said, “Didn’t you say to so and so in a private message dated such and such at such and such a time, ‘I am going to get $300,000’?” She exploded into tears, the courtroom was cleared and I immediately asked the judge to issue an order for contempt to eliminate acting in the courtroom. You should have seen a look on her face and that of the prosecutor. I thought both of their heads were going to explode. But this is a common tactic. The trial by tears, feel sorry for me. There is this specific jury instruction at the end of every trial that says, “Sympathy or desire to take it out on someone because you are angry at them, those are not lawful reasons to return a verdict”. The lawful reasons relate to the evidence and the rules.

So, the judge did not grant my motion but the crying was stopped and sure enough, she had to answer “Yes, I did send that private message indicating that I would get $300,000”. So, then I hit her with the next one, “Isn’t it true that on a later day, you said, ‘I am going to get $300,000 and buy a sweet-ass truck and you are going to be jealous’?” That is a direct quote. And she had to admit yes, she did, in fact, say that. And then, further on, the third one was, “Isn’t it true that you were bragging just a few weeks before we got these records, which was really close to trial, that you were going to get $2.2 million and you would not even have to go to court?” Yes. “Isn’t it also true that two-and-a-half weeks, …” and I gave her the date and the time and the page number in this ginormous, I mean huge stack of information we got from Facebook, “… isn’t it true that you repeated that claim of $2.2 million and embellished on it some more”, “Yes”. Now, during the trial, the state objected when I wanted to ask her about her mental health medication because in her Facebook records, we found, “Because I turned 18, I no longer can get my mental health medication”, and the judge ruled against us on that. I thought it was relevant to show that this was someone who was either consciously lying or suffering a mental illness that detached her from the truth. But the judge did not allow that.

Nevertheless, the client was found not guilty. And let me tell you, when you are standing next to somebody right before a jury verdict on a life-changing case, two things occur. When they leave the room, almost every client has asked me, “What do you think they are going to do?” And my response has been consistent for over quarter of a century, “You will find out when I do”. And secondly, you do not need to look over at that person to know they are utterly terrified, that they can be wrongfully convicted. And this man was not.

In the next segment, I am going to talk about another type of defense other than financial motive because that is what this defense really is. This was a financially motivated complaining witness who made the accusation. In the next segment, we are going to talk about a completely different type of defense. And as you can see already from this series, each case is different even if the charge is the same and even if the charge is not the same, you will find recurring defenses but in every case, they are very factually specific. A defense that will work in one case will not even apply in another and you will see that in our very next video.

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.