12 Years for First Offense Lewd Act on Minor

[aardvarc]

My husband was convicted after three years of time extensions for the prosecution who never had any evidence, of lewd act on a minor.

Are you saying that the prosecutor stood in front of the court, stated that the victim says he committed the offense, and sat back down? If not, then the prosecution DID present evidence. Evidence isn't only physical, it can and does include statements from victims, witnesses, medical and other professionals who treated the victim, etc. etc. etc. Just because a crime scene tech didn't show up with samples and lab tests doesn't mean that many other forms of evidence weren't presented. Less than 20% of sex offense cases nationally even get referred to prosecutors (at last check I think it was closer to 17%) - mostly because of total lack of ANY corroborating evidence. If the case was referred, police felt there was SOMETHING. If the prosecution picked up the case, and didn't plead it out to a lesser offense (like a misdemeanor), then they concurred that their case was strong enough to bring for a full felony charge (less than 11% of the 15-20% that get referred get that far, on average).

The child was diagnosed shizophrenic at a public mental health facility in the area, but for some reason her recall of the incident is not in question.

Was the accusation before the diagnosis?

My husband's defense attorney ... never ordered expert witnesses, mental health witnesses, anything.

I'll agree that seems a bit odd. But it's also possible that such witnesses didn't have anything relevent that would have helped the case. The danger of using such witnesses, unless they have some slam dunk refuttal to the witness, is that such witnesses often have the effect of painting the victim in an even DEEPER light, helping the prosecution's case, and actually making the defendant look WORSE.

The girl also went all out there since she was getting so much attention and looking so pious and holy while my husband looked like a greasy creep out of nowhere all of a sudden, and said, you know what, he did it to two other girls in the family, too. Both of whom said uh.... no he didn't. One said it in writing, the other broke down under questioning by a detective and admitted the girl had pressured her into lying to help her get my husband.

That's exactly why we have trials...so that jurors can evaluate the credibility, or lack thereof, of testimony and circumstances. If jurors heard witnesses supposedly meant to support the prosecution's arguement say that they were pressured into lying, yet that jury STILL convicted, then some other elements or evidence took precident. Without reading the transcripts, none of us could possibly venture to guess what that was.

Once again, the defense attorny failed by not introducing the detective's report for the second girl because HE thought the girl MIGHT chicken out in court with the girl watching her and recant the recantation.

Putting minors on the stand in sex offense cases is a double edged sword - they'll often say ANYTHING to stop to discomfort or avoid the situation. Sometimes that hurts the prosecution, other times the defense. Thinking that a child witness might be problematic on the stand doesn't indicate anything other than unwillingness to try to see if she can get through it or not. Children aren't put on the stand unless absolutely necessary - because of exactly the risks you describe. You can't just assume that forcing her to the stand would have resulted in a different outcome (and really, if juries think a defense attorney is purposely trying to traumatize a minor to help their client, guess who they have handy to take it out on).

My husband never had anything but a traffic ticket before t his,

Which has no legal bearing on being charged.

always worked to support the endlessly gluttonous needs of wretched bovine he was married to at the time

So you're saying he has a history of making bad choices?

and doesn't have a clue why this happened except for the obvious that this is revenge for wanting to divorce the controlling heifer who tricked him into marrying her.

So you're also saying he's easily manipulated so such a point that he was "tricked" into a marriage?

The judge, who it is rumored extensively is a friend of the father of the accuser and the ex wife, sat on this for three and a half years and just allowed extension after extension, and sometimes just didn't call the case at all even when everyone was ready to go, saying later that he didn't have to and that was all there was to it.

Unless he was the judge who actually tried the case, rumor is meaningless. If you've got proof, you take it to the state judicial oversight body and ask them to investigate any possible misdeed in the judge not recusing himself from the case. (Which may have happened, since the case went to a different judge).

So he was tried and convicted, again with NO EVIDENCE, when not even there, and sentenced to 12 years for a first offense lewd act.

Not showing up, regardless of the reason or logistics, seriously damages any defendant's ability to defend themselves or to direct their council.

I have heard of men accused of multiple accounts of CSC getting five years, what the hell is the deal

If he was convicted under 16-15-140, the max sentence would have been 15 years, so 12 is well within the judge's discretion. Some judges are simply harsher on those convicted of felony sex offenses against minors than others. But the sentence is appropriate under South Carolina law.

and is this grounds for protesting the judge

On what grounds?

and how does this sound for appeal? South Carolina is one of the states in which an appeal can be granted for innefective counsel if it is so found.

That's pretty much a given in all states. But you'll need to be more specific on exactly and precisely HOW the counsel was ineffective. Choices about who to put on the stand typically aren't going to cut it for appeal - they are strategy decisions, weighing the potential benefit to the client versus the potential determent to the client. As noted, children on the stand in sex offense cases often do more harm than good at the end of the day, particularly when called by the defense, whom the jury is going to see as "the bad guy" unless the testimony is absolutely earth shattering. And, as one minor already recanted on the stand, and the jury still convicted, what do you think putting another on will accomplish?

Am I the only one who finds this sentence fishy?

It's within the legal parameters, even for a first offense. The crime accused was a serious felony.

When he was transported back and heard his sentence, he appealed to the judge for a reasonalbe sentence based on his previous good standing in community, lack of legal trouble before, and strong desire to provide for his daughter and keep an intact family.

But the judge isn't legally obligated to grant that request.

Your best course of action at this point, is to take your transcripts to several criminal defense attorneys in the jurisdiction in question, and ask them if grounds for appeal exist. Do so quickly, because the window of opportunity isn't open forever, and the more opinions you get on it the better you'll be able to make an informed decision. You should be aware however, that there is a difference between a seasoned trial attorney excluding witnesses from questioning if feeling that those witnesses would hurt the client, and the ineffectiveness of counsel, which typically requires some gross oversight or other issue.

[completelyshatterred]

There is no part of that I do not understand. I am not acting as my husband's counsel nor am I seeking to. I am interested in taking an active role in researching, understanding, and knowing what is going on. As clearly stated a couple times now, I am looking for members to share similar experiences, stories of other cases that this might bring to mind, legal points that others may have knowledge, familiarity, or understanding of, or experience with; etc... I am not looking for support or handholding or cheering up or any counselling or any other nonsense. I stated twice now what I was hoping for in terms of communication here, I also stated explicity that I understand that nothing here constitutes legal advice, and I asked for members who could share relevant experiences or opinions, or even leads for study to satisfy my own personal knowledge and desire to be an informed support person for my husband and ask knowledgeable questions of the attorney I do decide to retain. Why you keep talking about counseling I can't for the life of me figure out; you won't answer a question directly and you make vague references to being in denial. If you have nothing to add, that's fine, this was directed at someone who might want to share an interest for this part of the law. If you don't want to talk to me, then don't; if you're going to reply to everything I say, even after I go out of my way to explain in long-winded detail EXACTLY what I meant, with irrelevant comments that you will not explain the meaning of, I can understand your frustration because we seem to be missing each other's points? I am sorry if I'm not getting something you're hinting at but could you do me the favor or explaining your meaning when I tell you I'm unsure of it and ask for clarification. I think I've made MYSELF more than clear so that you or anyone else wouldn't be confused about my intent or my meaning? If not, how may I make my communication more clear? Could you please stop expecting me to read your mind and tell me what you actually mean when I ask? And could you please also stop making irrelevant comments?

What part of all that do you not understand? If you're going to be snotty, dismissive, and derogatory why don't you just stop reading this thread and leave it for someone who might be interested in actual communication?

aardvarc, thanks for your response it's given me much to think about. I'm trying to post while taking care of the baby and obviously I can only get a minute here or there. It's time to put her to bed now, and while I certainly don't expect youto sit around waiting for my response, I will respond sometime late tonight. There is one misunderstanding that may be due to my quick writing and general lack of grammar since I'm hurrying, there was not a girl who recanted on the stand, there was one who recanted to the detective investigating, and the defense attorney didn't call her because he feared she would chicken out on the stand. I have a few more points to seek your opinion on and reply to you about. Thank you so much. Sorry for bad grammar/run on sentences etc just trying to get it out in a hurry it's not always correct.

[Dogmatique]

I'm not being either snotty OR dismissive.

I'm trying to get across that your husband - because he's the subject here - NEEDS AN ATTORNEY. I also mentioned much earlier on that he may have recourse against his attorney.

Whether or not you or he think his sentencing is out of line is really somewhat moot. The point remains that he needs legal counsel.

I don't how many other ways this can be expressed?

And yes, you and your family need counseling because no matter what "did" or "did not" happen, you need help dealing with this matter.

[completelyshatterred]

OK I'm losing interest in your mysterious one-liners. Point taken, I will get counseled. Whew that cleared up a whole lot! Thanks for the in-depth discourse. I'm not really interested in what you suspect, nor am I interested in being told I don't know what I know... so thank you kindly and I regard any conversation between us as pretty much being over. I surely do promise you I will get counseling and that seems to be all you think is needed so I guess I'll just ignore all legal issues and get that all-important counseling. I will get counseled til the cows come home, I pinky promise you that and hope it makes you feel better and as if all issues have been addressed.

And thanks for the advice to get a lawyer. I would never have thought of that on my own. I am thank ful that there are those with superior intellects such as yours to shed light on the obvious.

[Dogmatique]

OK I'm losing interest in your mysterious one-liners. Point taken, I will get counseled. Whew that cleared up a whole lot! Thanks for the in-depth discourse. I'm not really interested in what you suspect, nor am I interested in being told I don't know what I know... so thank you kindly and I regard any conversation between us as pretty much being over. I surely do promise you I will get counseling and that seems to be all you think is needed so I guess I'll just ignore all legal issues and get that all-important counseling. I will get counseled til the cows come home, I pinky promise you that and hope it makes you feel better and as if all issues have been addressed.

And thanks for the advice to get a lawyer. I would never have thought of that on my own. I am thank ful that there are those with superior intellects such as yours to shed light on the obvious.

You're welcome.

[completelyshatterred]

you saying that the prosecutor stood in front of the court, stated that the victim says he committed the offense, and sat back down? If not, then the prosecution DID present evidence. Evidence isn't only physical, it can and does include statements from victims, witnesses, medical and other professionals who treated the victim, etc. etc. etc. Just because a crime scene tech didn't show up with samples and lab tests doesn't mean that many other forms of evidence weren't presented. Less than 20% of sex offense cases nationally even get referred to prosecutors (at last check I think it was closer to 17%) - mostly because of total lack of ANY corroborating evidence. If the case was referred, police felt there was SOMETHING. If the prosecution picked up the case, and didn't plead it out to a lesser offense (like a misdemeanor), then they concurred that their case was strong enough to bring for a full felony charge (less than 11% of the 15-20% that get referred get that far, on average).
The prosecution called the girl herself, her mother, her father, and the counselor to whom she "confided" the "attack" (gag me). All of these witnesses simply regurgitated the girl's story: Yes, it started with telling the school counselor. And then the mom was told and then the dad. This was the extent of the evidence. Of course the prosecution did not try to establish any baseline of behavioral problems in the child, they simply avoided the question of the girl's everyday behavior. She was painted as a pious little victim, with all of today's trendy victim-speak in full effect. Her psychological report was not included anywhere, mentioned at all even. The defense lawyer didn't bring it up either! He was scared to. Has no experience with sex crimes, like I said inherited the case from dead partner and didn't want to refund money so showed and kept the chair warm. The defense lawyer also didn't mention to my husband that it would be a good idea to have psychological profile done on him, to establish that he has normal sexual responses and no mental issues. We found out later that would have been an acceptable and good thing for us to do and asked him about it and he said Oh, I just assumed you wouldn't have the money to pay for that.




Was the accusation before the diagnosis?
A diagnosis had been made by a private doctor earlier in her life (schizophrenia runs in her family, several females are afflicted) but the taking of medication had been spotty, this girl's parents are not famous for taking good care of her. I don't know if the school knew, I th ink they probably did and that is why additional exams were ordered for the court I guess, but then not used, I think because some pushy social worker convinced someone somewhere that it's not nice to talk about this kind of stuff when someone is a "victim" although how she was a victim from the get-go I'm not sure, but it seemed to be assumed all around that she was and that everything just had to be arranged to let that preconceived "truth" come out.


I'll agree that seems a bit odd. But it's also possible that such witnesses didn't have anything relevent that would have helped the case. The danger of using such witnesses, unless they have some slam dunk refuttal to the witness, is that such witnesses often have the effect of painting the victim in an even DEEPER light, helping the prosecution's case, and actually making the defendant look WORSE.
Hmm I'm not sure what you mean by this. The girl broke down sobbing to the detective and flat out said that the accuser had pushed her into going along with it and lying for her. I think that is pretty much a slam dunk injury to the prosecution's case but that's just me and I'm starting to think that my perception of the law heretofore was pretty naive.


That's exactly why we have trials...so that jurors can evaluate the credibility, or lack thereof, of testimony and circumstances. If jurors heard witnesses supposedly meant to support the prosecution's arguement say that they were pressured into lying, yet that jury STILL convicted, then some other elements or evidence took precident. Without reading the transcripts, none of us could possibly venture to guess what that was.
No, that's what I'm sayhing, it is IMO one of the strongest pieces of evidence in favor of my husband's innocence and it was never heard because the lawyer didn't want to be bothered to call the witness. I'm saying I don't think the jury would have convicted if they had heard the girl get on teh stand and say that the accusser had pushed her to lie to help her get my husband.


Putting minors on the stand in sex offense cases is a double edged sword - they'll often say ANYTHING to stop to discomfort or avoid the situation. Sometimes that hurts the prosecution, other times the defense. Thinking that a child witness might be problematic on the stand doesn't indicate anything other than unwillingness to try to see if she can get through it or not. Children aren't put on the stand unless absolutely necessary - because of exactly the risks you describe. You can't just assume that forcing her to the stand would have resulted in a different outcome (and really, if juries think a defense attorney is purposely trying to traumatize a minor to help their client, guess who they have handy to take it out on).
I guess I just don't understand the convoluted place our legal system has come to. A man has to weigh the risk of putting a truthful witness on the stand in his favor when she has become remorseful and wants to tell the truth; because it might backfire on him?! I can understand technically what you're saying but I am still suffering feelings of disgust for the way the legal system treats men, I suppose. You're damned if you do and damned if you don't. Innocent men have to live in fear of being in a vengeful, deceitful woman's crosshairs and have to learn to navigate a hopeless system of smoke and mirrors? Why is there not more awareness of this?



Which has no legal bearing on being charged.
No, not on being charged; but for some reason I always thought that one factor of sentence consideration was standing in the community/previous record/weighing of value to society and likelihood of offending again? Don't first offenders usually receive lighter sentences customarily, rather than being inexplicably at the heavier end of the possible sentence spectrum?


So you're saying he has a history of making bad choices?
I know very few people who don't. He married when he was 20, too young, not nearly savvy enough, did something not entirely the smartest thing to do although with what he thought were the right intentions. Something not unheard of in a young adult. I don't think it's that uncommon.


So you're also saying he's easily manipulated so such a point that he was "tricked" into a marriage?
The woman told him she was pregnant. And once again, as a newly independent adult, he was easily manipulated, a young man wanting to do the right thing, yes manipulated by a woman who had no concept of a relationship, just what she wanted right then at that moment and what she had to do to get it. Yeah, he was gullible and learned his lesson from it. I don't think that's a crime and I don't think it's relevant.



Unless he was the judge who actually tried the case, rumor is meaningless. If you've got proof, you take it to the state judicial oversight body and ask them to investigate any possible misdeed in the judge not recusing himself from the case. (Which may have happened, since the case went to a different judge).
We don't have proof, which is why the state judicial disciplinary board took no action, or at least said they wouldn't, but maybe the did something because the new judge was assigned. The father is a very powerful and relatively wealthy man in this small town, no one will say anything against him. Going to a different judge may have done more harm than good though, as I'm not sure if he even had access to some of the things that were either thrown out or just not used in trial (not sure which way that works), such as girl's mental status, the other girl admitting to the lie.



Not showing up, regardless of the reason or logistics, seriously damages any defendant's ability to defend themselves or to direct their council.
I agree, ultimately it was our responsibility to get him there. But why was it OK for the prosecution to get 3yrs worth of extensions and we couldn't get one? And the mystery remains as to why it was pushed through with such amazing speed once it became well known to the prosecution, which after 3yrs of trying to "collect evidence," never did so and went to trial with the same sorry non-evidence it started out with 3yrs earlier, that he was far out of town? They knowing damn well his financial situation since they were the ones who caused him to lose his job by going forward with this false accusation, that it was likely that if they got it to trial FAST he might not be able to come up with the funds. Techinically, I can not blame them, but in the real world you and I both know that was a desperate, shady move to win a case they had no hope of proving.



If he was convicted under 16-15-140, the max sentence would have been 15 years, so 12 is well within the judge's discretion. Some judges are simply harsher on those convicted of felony sex offenses against minors than others. But the sentence is appropriate under South Carolina law.
I'm not sure of the code, it was a class D non-violent felony, yes 15 was the max so that was probably it. I understand it was within the judge's power but I think the judgement exercised was inexplicably harsh and clearly not customary. Isn't the convicted's prior record or lacd of supposed to be taken into account?




On what grounds?
I'm sorry I'm doing the "quote" style reply and I've lost the ? that went to this; I think this is where I asked if this is grounds for judicial discipline or correction. If so, my answer is as above, that I'm asking if anyone raises eyebrows at judges who issue uncustomarily harsh sentences for first time offenders?


That's pretty much a given in all states. But you'll need to be more specific on exactly and precisely HOW the counsel was ineffective. Choices about who to put on the stand typically aren't going to cut it for appeal - they are strategy decisions, weighing the potential benefit to the client versus the potential determent to the client. As noted, children on the stand in sex offense cases often do more harm than good at the end of the day, particularly when called by the defense, whom the jury is going to see as "the bad guy" unless the testimony is absolutely earth shattering. And, as one minor already recanted on the stand, and the jury still convicted, what do you think putting another on will accomplish?
Well the one minor recanting on the stand thing I addressed earlier, it was probably a miscommunication on my part as I was speeding through my earlier posts. I think it actually counts as a gross error to not put on the stand the girl who did recant. Oh wait I think I know my error. Two girls were implicated, and after three years of games with the court one of them is no longer a minor. The one who did testify on his b ehalf signed a "deposition" I think? and testified that nothing happened to her but the one who broke down with the detective is in fact still aminor and was not called to the stand as I think she should have been. And I guess in the eyes of the law his heinous lack of offering this huge evidence in our favor would just be seen as his prerogrative and not grounds for an ineffective counsel appeal? However, coupled with the not telling us we should have had a mental exam done, also the fact that the defense lawyer spoke with my husband's father about specific dtails of the case without permission (my husband never would have allowed this but the lawyer did it anyway we found out later) how does that look to an appeals court do you think? Gotta go baby's crying. Thanks.

[completelyshatterred]

It's not letting me edit my last post. I wanted to add that the one who did testify on his behalf was sister-in-law, the middle sister between the wife who was oldest and the accuser who was youngest. Also testifying on his behalf as character witness type things I guess were the wife and the mother-in-law, the wife it is HEAVILY rumored and suspected even by family members close to her that she is the one behind, possibly implanting a suggestion or outright making a request but on the surface she appeared to be rooting for him, and at the original hearing for all of this signed deposition and everything for him because she would do anything to make him think she was on his side; they are divorced now and through the grapevine she wants to change her testimony to spite him but is scared she'll end up with perjury or contempt charges. It is said by "double agents" in the family that everyone thinks she started this to passive-aggresively punish him for initiating divorce and also to strip him of power over his own life so that he would remain dependent on her, which he did for a time because he lost his job. But it got out of her hands and now she regrets it because she didn't realize how far it would be taken, she just wanted to scare him but now the girl won't recant because the sick little creep is getting off on the attention and sympathy. <--- Just telling you what the consensus is in this family. I already know that's not proof I'm just adding it for background to our conversation.

[cbg]

Okay, I have a question for you since you are so dismissive of all the previous attempts to help you. Evidently if it's not done exactly the way you want, it's not done.

EXACTLY what do you expect a message board to be able to accomplish in this matter?

Perhaps if we know your expectations, someone will be able to meet them. Or perhaps not.

[completelyshatterred]

I'm not sure what in previous posts does not spell it out clearly since I repeated it several times for you? I am hoping for discussion on some of my points?

If you can't understand that then I t hink I have little hope of making you understand it. I am not looking for you to do anything for me. I do not expect you to solve my problems. I am looking for conversation and opinion from people who may be familiar with any part of the subject I've discusses?

How many times do I have to say it?

I think the site administrator and some of the forum leaders may be wondering if I'm trying to solicit legal advice and scared to respond because you think I don't understand that this is not a binding agreement for legal advice and you people are not responsible for the outcome of this case, but I understand that and I can not hold anyone legally liable for anything discussed here. I understand no one here in any way represents me legally or is responsible for giving me advice that I should follow in my legal situation. <---- There do you want me to sign a contract so that you don't have to be scared I'm not looking to hold anyone liable for anything FFS I was just t rying to have a conversation. Apparently that's too much for anyone except aardvarc to wrap their heads around. Screw it if I have to explain myself this many times in the same manner it's not gonna happen. For the life of me I don't knwo what's so hard to understand about I WAS LOOKING FOR DISCUSSION. Perhaps one day the light bulb will go on over your heads but for now don't worry I won't bother you anymore. Bye

[Dogmatique]

What you're not understanding is it's not that type of forum - as is quite obvious.