Sex Offenses including Second Degree Rape charges are among the most serious criminal offenses that are handled in the criminal just system. Anyone who is charged with Rape or any other Sex Offense requires the assistance of an Aggressive and Experienced Criminal Attorney who has substantial experience handling these types of cases. In the twenty years that I have been practicing exclusively criminal law, I have handled scores if not hundreds of Rape and Sex Offense cases both as a prosecutor and as a criminal defense attorney.
I have written many times in this space about the importance of hiring an experienced criminal specialist when charged with any criminal offense. When dealing with Rape of Sex Offense charges, it is not just important, it is an imperative. I just finished successfully defending a 19 year old charged with Second Degree Rape in St. Mary’s County that was a shocking example of what can happen if this imperative is not observed. I was brought into the case 8 months after the charges were filed and just after the client’s current lawyer told him that he should plead guilty to Second Degree Rape and accept a 12 year prison sentence. His parents then reached out to me for a second opinion. Here are the facts:
My client (I will refer to him as “Joe”) was 18 years old at the time of the incident which occurred late last year. The incident occurred at a house party hosted by a sister and brother who Joe went to high school with. The party was attended by upwards of 100 people and copious amounts of alcohol was consumed by most everyone who attended. Many of the party goers, including Joe, also smoked marijuana throughout the night. Several witnesses, included the host of the party who was called by the State, testified that Joe was “highly intoxicated”. In fact, in his initial interview with the police, the host of the party volunteered his opinion that Joe was very drunk without even being directly asked that question.
By the early morning hours only 15-20 people were left at the party, most of whom were highly intoxicated. Joe was seen by several witnesses sitting on the couch very close to a 19 year old girl (I will call her “Jane”) whose boyfriend was passed out in the other room. According to Joe’s friends, Jane was awake and responsive. One said he specifically recalled seeing her kiss Joe. According to Jane’s friends, she was essentially passed out.
The testimony was undisputed that at this point one of Jane’s friends saw what was going on and led her away to a bedroom where the two laid down on the king size bed. It was approximately 6:00am. Shortly thereafter, Joe went back to the bedroom and climbed in bed with the two girls. Approximately 15 minutes later, Jane’s friend woke up and began screaming that Joe was raping Jane. According to her, when she woke up, she looked over and saw Joe on top of Jane. She claimed that she could see his bare buttocks and that he was making a thrusting motion.
All three got out of bed and others rushed down the hall to investigate. Witnesses claimed that Joe was seen buckling his belt and that he immediately denied that he had raped Jane. Jane claimed to remember nothing at all from the incident although curiously, she was able to immediately carry on a coherent conversation and did not appear to anyone, including 3 police officers who interviewed her, to still be under the influence. Her remarkable recovery from total incapacitation to total lucidity in less than a minute would become an issue in the trial.
Shortly thereafter a detective responded to the scene to handle the investigation. To call his investigation superficial and a rush to judgment would truly be an understatement. He conducted taped interviews of just 3 witness for a grand total of 14 minutes. One was the girl who was in bed with Jane who screamed rape. The others saw nothing that occurred between Joe and Jane and just described the party. He never interviewed Jane, who had been transported to the hospital so that a rape kit could be done (the examination showed no trauma to her genital area or anywhere else), or Joe who had left the party prior to the detective’s arrival. Instead, he went directly from the scene to the commissioner and swore out an arrest warrant for my client for Second Degree Rape. The legal theory was Jane was so intoxicated that she was “helpless” and therefore could not consent. In order to prove this, the State would have to prove not only that she was in fact incapable of consenting to sexual contact, but also that Joe, in spite of his own intoxication, knew or should have known of Jane’s inability to consent and that the two did in fact have sexual intercourse.
Joe was arrested the day after the warrant was issued. According to the taped statement that Joe gave upon his arrest, he climbed into bed just looking for a place to sleep. He said that Jane and he began “spooning” and he began to massage her breasts and groin areas outside of her clothing. He stated that although she did not speak, she moved her body and made noises that indicated to him that she was, as he put it, “into it” and therefore consenting. Throughout the interview Joe maintained that he was very drunk and high and that his memory was fuzzy at best. After several hours of very aggressive and, in my opinion, coercive questioning, he “admitted” that he did put his hand inside of her pants and that his finger may have “barely” gone in between her labia but not all of the way inside of her vagina.He adamantly maintained that at the time, he believed that Jane was consenting and that he absolutely did not have sex with her. Later he told me and others that he was scared and confused and felt tremendous pressure to tell the detective what he wanted to hear. For those who have not experienced an aggressive interrogation, it is difficult to understand or believe that someone would admit that he did something that he didn’t do but it is very common, particularly with young inexperienced defendants.
But as noted above, he had already been charged prior to giving his statement. In fact, the entire investigation took less than 4 hours including the time it took to draft the warrant. The detective did collect the bedding from the scene and later the clothing of both Jane and Joe, and the rape kit from the hospital but, he never sent any of it to the lab for testing. When cross-examined about his failure to do so, he testified that “that’s on me (him)” and that he “must have forgot”. I’ve never seen anything like that in my career. He forgot? I really don’t mean to be flippant but to liken this investigation to the “Keystone Cops” would be an insult to the Keystone Cops.
Joe was indicted by the State’s Attorney 19 days later and sat in jail for the next 8 months until I was hired at which time the family bailed him out. The family called me after the attorney who was representing Joe at the time recommended that he accept the State’s plea offer which was to plead guilty to Second Degree Rape and serve 12 years in prison. It took me all of 10 minutes reviewing the evidence to confirm that there was legally insufficient evidence to support that charge. Jane claimed to remember nothing. The witness obviously could not see if Joe’s penis was inside of Jane and she never claimed to be able to. Joe emphatically denied that he had sex with jane and there was zero physical evidence. I was astonished that the State would pursue a rape charge under these facts and even more astonished that a defense attorney would advise someone to plead guilty to rape when there was simply no evidence.
The case went to trial in March and as predicted the Judge dismissed the Rape charge at the end of the State’s case finding that the State had failed to produce prima facia evidence to support that charge. He was ultimately convicted only of the lesser included sex offense for touching her genitalia with his hands. We disagreed with that decision both because the evidence demonstrated that Jane was not incapacitated and because the evidence was uncontroverted that Joe was extremely intoxicated and therefore not capable of determining whether she was too intoxicated to consent. However, the judge granted Joe probation and indicated a willingness to consider allowing him to expunge the matter upon successful completion of the period of probation so we will not appeal. Obviously, it was a very good thing indeed that his parents determined that Joe had the wrong lawyer, even if it was just in the knick of time.