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Out of Control Prosecutors
Posted by: Brent Horst
March 19, 2008
Topic: Defending Child Abuse Cases

After 20 years of being involved in criminal law I sometimes start to believe that I have seen it all.  Whenever this happens I am soon reminded that I have not.  This week while defending a client charged with multiple counts of sexual battery and rape of a child where the accuser is now 18, there is no evidence other than her accusation, no witnesses, no physical evidence, and she has plenty of motive to make a false allegation, the prosecutor actually stood up in court, in front of the judge, me, and my client and stated she was not going to provide a copy of the accusers statement to the police because it could be used by the Defendant to prepare a defense.  I'm not kidding.  Apparrantly this prosecutor does not believe in Due Process which provides to a person charged with a crime the absolute right to prepare and present a defense, and would prefer that we just skip the entire trial process so that she can get her conviction, justice and the innocent be damned. 

 While I have always maintained and continue to believe that most prosecutors are honest hard working persons of good character, the few bad apples that do exist can wield unbelievable power and reek havoc on a persons life, all without any fear of repercussion, as a prosecutor enjoys immunity for any acts he/she commit while acting in the course of their position as a prosecutor.  This particular prosecutor is obviously not interested in justice.  From her own words she obviously believes that an individual charged with a crime should not be allowed to prepare a defense.  In her world if we could simply skip the whole bothersome business of having a trial she would be much happier.  She belongs in the Mike Nyfong - Duke Lacrosse case -class of prosecutors.  The saddest part of this whole particular situation is that Tennessee Rules of Procedure do not require the prosecutor to turn over the accusers prior statement until after the accuser has testified during trial.  This makes it very difficult to review the statement with sufficient time to prepare a defense by looking for inconsistencies, and lies in the prior statement to demonstrate that the accuser is not credible.  However, most prosecutors in Tennessee will provide the statement well before trial understanding that if their case cannot survive pretrial scrutiny that maybe the State does not deserve to win because an innocent person's liberty might be in jeopardy.  Those prosecutors who refuse like this particular prosecutor did to turn the statement over prior to trial are rarely as bold as this prosecutor and will usually find some lame excuse never admiting in open court that they just do not want the Defendant to be able to prepare a defense. 

The reason I right about this incident is to try to sound the alarm that the State cannot always be trusted.  Many if not most people have a tendency to automatically believe that the prosecutor wears the white hat, that they are the good guys, and that they would never knowingly or recklessly convict an innocent person.  If you still believe this just ask yourself, if you had been charged with a similar crime as my current client but the State refused to even let you look at the accusers statement and you therefore are facing life in prison with no other evidence against you but you are not allowed to even know what the accuser claims that you did would you feel that you were being treated fairly and that justice was being done?  Next time you happen to find yourself on a jury don't buy what the government is selling just because they are the government.  Remember, sometimes the government cheats.   

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Most annoying telephone calls
Posted by: Brent Horst
January 10, 2008
Topic: A day in the life of a criminal defense lawyer

I get all types of telephone calls.  I don't mind most of them and am usually happy to spend a few minutes on the telephone with most people and often will even assist individuals who call with legal issues that have nothing to do with criminal law, explaining and providing direction to them on who they should contact or how to find the information they need. 

However, there are two calls that I routinely receive that are extremely annoying - so cut it out you guys. The first call  goes something like this: Hello, this is Billy Bob, I got charged with (fill in the blank) its just a misdemeanor and If I'm not likely to go to jail I was just wondering if  I need a lawyer.

The Second call goes something like this:  Hello, this is Billy Bob, ten years ago I plead guilty without a lawyer to (fill in the blank) and had no idea how much having that conviction was going to screw up my ability to (fill in the blank - get a job, own a fire arm, vote, etc) now I want to appeal or have the conviction expunged. Oh, I did not know I had to ask the judge at the time of my plea if I could later expunge the charge, well then lets appeal, what do you mean its too late to appeal , OK then but here is what happened, you see . . .  so what can we do, what do you mean nothing, but this conviction is just a pain in the a-- , you see like I said, when me and Bobby Jean . . .  so you see even though I plead guilty I wasn't guilty and did not know what I was doing so we must be able to do something.  When I get these calls I try my very best and so far I have been able to refrain from screaming ARE YOU KIDDING ME!  At least to the caller.  To myself this is exactly what I am saying

You know, when I have a leak in my kitchen sink if it is bad enough that I have to ask myself do I need a plumber the first thing I ask the plumber is NOT, do you think I need a plumber?  If I Have to ask then chances are I need the plumber.  If you have to ask chances are you need a lawyer. Yes, for many minor offenses you can go to court with an attorney and may get the same thing as the guy who was in front of you  on the docket who did not have a lawyer, and you may feel like you just wasted that money.  However, if you do have an attorney chances are you will not call me ten years later complaining that you plead guilty and now your sorry you did it.

There are defenses to almost every charge and almost every fact pattern.  In other words, I don't care how guilty you are there is a way to defend the case.  Even if the defense consists of nothing more than exhausting every possible legal challenge in an attempt to wear the state down so that they hopefully get tired of the case and offer a much better deal just to make you (and your annoying attorney - that would be me) go away.  If you hire an attorney and still end up pleading guilty and getting the same thing as the other guy you know you did all you could do, and furthermore, if there is a way to have the case expunged or otherwise handled in a manner that the conviction does not follow you forever the attorney will be able to explore that possibility and take care of it.  Just as I don't know the procedures for taking apart and repairing the plumbing for a kitchen sink there are procedures to expungements and things of that nature that althoughsimple enough, most non-lawyers do not know how the procedure works simply because they have never dealt with such things.  Pleading guilty then ten years later after all procedural deadlines have passed asking me to expunge the case or "do something" to help you is simply TOO LATE.

So, the purpose of my little rant here is simply to say, if keeping your record clean and all your civil rights in tact is important to you my advise even for small misdemeanor charges is yes you do need a lawyer.  If you don't please don't call me ten years later complaining about how difficult life is now.

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State Secrets (The Discovery Process in Criminal Cases)
Posted by: Brent Horst
December 29, 2007
Topic: A day in the life of a criminal defense lawyer

One thing that is extremely frustrating is when some prosecutors find it necessary to try to hide information.   I understand the need for "State Secrets" in the context of wars and national security.  However, in the context of the typical criminal prosecution there is no place for "State Secrets" and the hiding of information by the State.  Such actions even though often allowed by the rules of procedure seem to me to be an obvious violation of due process rights.

In some states like Tennessee and in the Federal system a person charged with a crime has very limited rights to see the State's evidence prior to trial.  The Defendant is not allowed take a forced sworn deposition from witnesses, he is not allowed to subpoena records from the State or from witnesses because he thinks there may be favorable evidence in those records, and the government is not required to even list the witnesses it plans to present at trial or even to tell the Defendant what the witnesses are expected to say.  About the only thing the State is required to turn over in the Federal System and in some states like Tennessee are statements the government plans to present at trial which were allegedly made by the Defendant, and any test results of an expert the State plans to call as a witness.  

Civil litigants have more discovery rights in a civil lawsuit than a defendant in a criminal case; which certainly seems to be upside down when a defendant in a criminal case could be going to prison and a civil suit is usually only about money.

All this being said, some prosecutors - those who understand that their job is to seek justice not to just get convictions realize the injustice of hiding information from a defendant and many provide open file discovery allowing the defendant to review and have a copy of everything that they have.  These prosecutors understand that if the evidence they have cannot survive pre-trial scrutiny and they can only win their case by surprising the defense at trial then it is likely that their case is not worthy and not strong enough to justify taking a mans freedom.  I have enormous respect for these types of prosecutors.

 On the other hand, I just don't understand those prosecutors who hide facts and evidence, and will fight tooth and nail against disclosing facts to the Defense.  I am currently dealing with a case right now that is great example of how some prosecutors will hide behind procedural rules and go to extreme efforts to gain an unfair advanage over a defendant.  I am defending a person accused of child abuse.  A young girl suffered a broken arm.  Despite the fact that she initially told her sister and the hospital that she hurt her arm by falling the State became convinced the injury was caused by intentional abuse and the state did a "forensic interview" of the girl who allegedly stated during that "forensic interview"  that my client hurt her arm.  Although the prosecutor has agreed to let me come to his office to look at a DVD recording of the interview he will not let me have a copy of the interview.  I was able to convince the judge presiding over the case to order that I be allowed to have a copy of the interview arguing that a "forensic interview" is in fact a result of a scientific test due to the fact that a forensic interview is supposed to be done in a "scientific manner".  Even after this ruling by the judge the State has still refused to give me a copy and has filed a motion with the court asking the judge to reconsider her ruling.

The frustrating part is that I do not understand what the State believes the harm is for me to have a copy of that interview other than if they are afraid that allowing me to have a copy will harm their chances of a conviction, and it is unfortuneate and unfair if this is the reason that they will not let me have a copy.  I know it is the local district attorney's policy to not allow defense attorney's to have copies of the interviews - but why - unless it is to gain unfair advantage?  I understand that in some cases such as sexual abuse allegations the State may be concerned about the privacy of the accuser due to the sensitive topic.  However, those concerns can be dealt with by the court issuing orders that the defense attorney not let anyone else see the DVD and that it must be returned or destroyed once the case is over.  Having copies to work with as the case progresses and as the defense attorney prepares for trial is essential.  Having tried many cases I can tell you that when preparing for trial an attorney needs to review a witnesses statement numerous times and trying to prepare for trial simply from notes made while viewing the interview at the prosecutors office is simply not sufficient and will usually hinder my ability to effectively prepare a defense.  Denying the defense attorney a copy of this interview simply provides the State with an unfair advantage.  They can look at the interview as many times as they need, I am denied the same right.  Hopefully the judge in this case will stand firm and will not reverse her earlier ruling.  It is unfortunate that we even have to fight this battle.  Criminal cases should be about truth.  There should be no hiding or hording of information. 

When it comes to the criminal justice system there should be no tolerance for "State Secrets".

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Ten Tips (Maybe Eleven) On Defending Child Sexual Abuse Allegations
Posted by: Brent Horst
December 28, 2007
Topic: Defending Child Abuse Cases

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Congratulations to Judge Destry
Posted by: Brent Horst
December 12, 2007
Topic: A day in the life of a criminal defense lawyer

Twenty years ago I walked into the State Attorney's office in Clearwater Florida to begin my first day of work as an Assistant State Attorney for State Attorney Jimmy Russell.  I was escorted to an office (to be fair it was more of a closet) only big enough for two desks to sit side by side.  Seated at the other desk was Matt Destry who had also just started as an Assistant State Attorney.  We spent many years as colleagues prosecuting cases from DUI to Drugs to Murder. 

On Monday December 11, 2007 my friend began his first day as a Circuit Judge for the 17th Judicial District, Broward County, Fort Lauderdale Florida.  You have come a long way since our first days in Clearwater Judge and I could not be prouder.

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