A few weeks ago, I was privileged to take part in a question and answer session with a group of visiting English high school students. Fairly predictably, one of the students asked how I feel when I get a guilty person off on a "technicality." I gave my usual Defending the Constitution, Slippery Slope, etc. response.
Frequently, however, people are more specific and ask me (knowing that I am a father to small children) how I can defend "child molesters."
Well, one reason I haven't posted here in quite a while is that I became obsessed with a case--something I told those English kids a good lawyer should never allow to happen. And the case that tempted me into obsession involved an alleged child molester who will most likely get off "on a technicality."
Mr. X was arrested a couple of months ago for a violation of Penal Code section 288.5 (continuous abuse of a child under 14) alleged to have occurred sometime between September 2000 and September of 2001.
Even though my client is 22 now, he was arraigned in juvenile court because he was under eighteen at the time of the alleged crime.
Just prior to the trial, the petition was amended to extend the time period to March 2002. (My client turned 18 in September of 2001.)
After losing a speedy trial motion (the judged ruled that a 3-year delay in serving a warrant was not unreasonable), my client went to trial before a judge (juveniles are not entitled to a jury trial) and lost. (Because this was juvenile court, instead of the client being found guilty, the "petition was found true.")
After trial, I argued that the case must be dismissed because after the petition was amended to allege a period extending beyond my client's eighteenth birthday it became an adult felony complaint (albeit mislabeled as a juvenile petition) and my client was denied his right to a jury trial as an adult. (It was irrelevant that the judge found that the minimum three lewd acts occurred prior to my client's eighteenth birthday--it was the dates alleged, not the dates proven, that precluded juvenile court jurisdiction.) The prosecutor responded that I should have objected to her "mistake" earlier instead of quietly sitting through a bench trial. The judge said it was "invited error." Hopefully, before the judge comes back next week with a decision, he will realize that there is no such thing as an implied waiver of jury trial.
If the judge denies the motion to dismiss, the case will go back to the client's county of residence, where (notwithstanding the true finding here on the petition) my client's current age will permit him to instantly seal his record (normally juveniles must wait until they are 18--my client is already over 18) and will preclude the court from imposing any punishment.
Was any justice done here?
My client will avoid any punishment, and his record will stay clean.
A friend in the DA's office who had heard about this case told me that he believes the true finding provides closure for the victim, even if that finding is ultimately vacated.