Pre-Trial – Learning the True Story of Innocence

When we believe our client is telling the truth, we’re looking for a reason why the complainant would necessarily lie, misrepresent the truth, or just be wrong. Often, we can come up with a variety of possible reasons, but is there evidence to support it in discovery and where can we find it. Although we did discover an interesting conversation between my client and the woman receiving the massage, it was not documented. My client had told the woman that he had a $3 million policy protecting him in case he did harm or touched somebody inappropriately. The next massage my client gave this woman was when the accusation of penetration came out, which was very significant.

I am a 25+ year Criminal Defense Lawyer in Colorado. Since attending the Trial Lawyer's College 3-Week program in 2010, I have gradually learned to implement the TLC methods in every part of trial from voir dire and opening statement, to direct and cross-examination, and into closing argument. I continued my training with TLC by attending grad courses, psychodrama programs, and regional seminars almost every year since he graduated. "I would have had a much better three-week college if I would have allowed psychodrama to be the foundation and trust the process a bit more. I saw people embracing it and I was jealous, and for whatever reason, I just didn’t feel like I could do it. And that’s a regret." Fortunately, I have progressed since then. I am honored to be Faculty at the college, teaching regularly.

I worked extensively with my client on this case. This included a session with trial consultant Kaitlin Larimer and recreated the event during a Discovering the Story session at TLC Grad II with Colby Volkey, as well as plaintiff’s attorneys that have sued on behalf of sexual assault victims – the varied perspectives were of great value. During trial, I treated the accuser respectfully while developing the evidence to show that she may have experienced unintentional psychological suggestion to think something more happened, when it didn't. I used methods during the cross examination of the opposing witnesses to show what suggestion is and how it developed the complaint in this case.

"Just because you are suing, that does not mean you are lying – many sue because they have been harmed.  But, a multimillion dollar lawsuit is a motivation.”

We need more than a motivation. During a re-creation, my client brought up this idea of something called pain referral, we started to consider might have been what happened." Pain referral happens when a person is touched in one area, but the sensation of touch or pain is felt in a different spot, often where the muscle connects to a bone. The body has a network of interconnecting sensory nerves that are also attached to muscles. When someone is touched in one place, the brain can create the feeling that pain is located somewhere else in the body, and in this case, the bone connected at the other end of the muscle. This is not uncommon, so I brought in a physical therapist to explain how pain referral works and they also commented on a number of other important issues.

The Trial

During Voir Dire, I created a safe environment for the jurors to feel comfortable in answering his questions. I encouraged the jurors to 'tell him more' and overall respected their opinions. During opening statement, he made sure he told a story.

"You have to tell a story of innocence. It’s my belief, and this comes from my training at TLC, and the training I’ve had working as a public defender, that the prosecutor tells a terrible story about how guilty your client is. And it’s my belief that your sole goal in opening is to honestly tell a story of innocence from the moment you stand up. Hopefully, the jury goes back to neutral, where they’re thinking, 'There’s something to watch in this case, I don’t know what happened, but we need to pay close attention to find out.'"

I used several other TLC methods during the direct examination of his client, as well as other witnesses to relay to the jury that my client did not do what the woman had accused him of. We brought demonstrative exhibits, including a massage table and dummy named Lamont, into trial so his client could show the jury exactly what happened.

"I believe my client was seen as credible to the jurors because I trusted him, and he trusted me, from all the time we spent together and the interactions we had prior to trial."

Another important detail we discovered, was that the accuser had been sexually assaulted in her past. While this information was excluded from evidence by the Judge, evidence of flashback and triggers were not. I disagree with this Rape Shield law interpretation. I suspect that as mental health issues are better known and more accepted, the law will clearly allow this type of testimony.

The prosecution called a “blind expert” psychologist. They are blind because they know nothing about the facts of the case and simply speak in generalities. One way to combat this is to hire an expert to counter them. In many cases, I do not think this does much, maybe it gets some to ignore both experts. I prefer to use the prosecution expert’s reading list to develop evidence supporting my case. I did it here.

The prosecution expert agreed with and read to the jury a book passage saying:

“A person can inhabit a trigger and that triggers a flashback and the trigger comes from something that’s similar to their previous trauma. They reread it in their head. They can’t discern from what’s actually happening in real life and then they feel the same emotion at the end of that; the fear, the pain, and the distrust.”

The prosecution expert agreed with and read the following quote to the jury:

“When something reminds traumatized people of the past, their right brain reacts as if the traumatic event were happening in the present.  But because their left brain is not working very well, they may not be aware that they are re-experiencing and re-enacting the past – they are just furious, terrified, enraged, ashamed or frozen.  After the emotional storm passes, they may look for something or somebody to blame for it.”  The Body Keeps the Score: Brain, Mind, and Body In the Healing of Trauma, Bessel Van Der Kolk, M.D. P.45 (2014)]

During questioning of the complainant's husband, a statement was presented that benefitted his client immensely. I tried to understand and empathize with him. I sensed he had his own questions about the case. I allowed him to feel comfortable with me. I didn't attack him and was never angry with him. A safe space was created for him to speak the truth, and in the end, the husband's statement was important to a victory. The issue was why he told the Detective something a little different from what he said to the Massage Envy manager.  What he said was that he was so angry that he embellished what his wife had told him [no penetration] and instead said that there was vaginal penetration. This embellishment was heard by his wife and suggested she should say it too. After hearing this, the wife said penetration. I think that was probably the end of the case for the prosecution. When the husband left the stand, there was a huge shift in the way the jury was looking at the case.

We, as trial attorneys, are working on saving the innocent from this machine that is running them over. And these people told me after, these jurors were very happy to protect him from the government. It wasn't every juror, but it was enough of them to make an impression on me and make an impression on my client, that they believed he was innocent as opposed to not guilty. After trial, my client and I walked to our cars, and 4 female jurors came up to my client and hugged him, telling him not to let this change his life. I don’t know that my client will ever trust the government, but at least my client can trust society. At least he trusts the jury.