Defending the Wrongfully Accused in the #MeToo Era
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A Dallas County jury recently acquitted professional boxer and frequent television commentator Jermell Charlo of a felony criminal charge of assault family violence.
Defending against these kinds of allegations is never easy and it becomes even more of a challenge when the accused is a celebrity. As such, the acquittal in this case presents some valuable lessons about representing any client facing such an incendiary accusation.
The shockingly high number of wrongful convictions has made it clear that, in the legal system, rushing to judgment is dangerous. When someone’s life is literally on the line, it is more important than ever to carefully and neutrally look at every piece of evidence, every angle.
At the same time, people who have suffered family violence and sexual assault need to be taken seriously. Their claims need to be fully investigated and, if factually and legally appropriate, charges should be filed.
The popularity of movements like #MeToo have shined a necessary light on these issues but have also created unintended societal pressure to rush to judgment. Making matters worse, increased attention has also led to people intentionally making false accusations. Motives for these can vary widely from vengeance on an ex-romantic partner, to attention-seeking, to simple greed.
These social movements and the media attention they focus on these accusations have created very strong opinions on both sides of the issue. For an accused person standing trial, it is vitally important to uncover these opinions. If a potential juror has a strong opinion that favors believing the accuser and is hostile to any critical analysis of the accuser, and if that person sits on a jury, there is almost no chance of a fair and impartial trial, the hallmark of our system.
Trial consultant Kellye Raymond explains, "Handling a case that deals with these sensitive issues and potentially false accusations must be developed differently than any other case because awareness of potential biases and your efforts to out these biases in jury selection must be done with extreme care."
Uncovering strong opinions is only the first step, of course. Once uncovered, a skillful defense lawyer must move to strike jurors whose strong opinions will prevent them from rendering a fair and impartial verdict. The lawyer should also seek to inoculate positive jurors, so they don’t get struck by the opposing side and at the same time weave the defense’s case theme into jury selection.
Once in trial, the defense strategy must not only acknowledge the prevailing social attitudes on family violence accusations but also incorporate them in such a way that the jurors understand that they are not being immoral or unreasonable for thoroughly and critically analyzing the accusation against the accused.
Of course, that defense strategy starts well before trial, preferably from the moment the potential client walks in to the lawyer’s office for the initial consultation. Developing the strategy takes time and greatly benefits from the use of focus groups and/or mock trials to identify good/bad facts, identify and develop themes, and ultimately hone arguments.
Kellye Raymond goes a step further: "One of the best uses of a focus group or mock trial is not only to develop themes and hone arguments, but also to learn as much about the weaknesses of your case and the strengths of the State’s case. Your focus group should always be done with an eye towards the state’s best-case trial scenario and the defense’s worst-case trial scenario."
All the possible motives discussed here were on display in Jermell’s trial: the accuser was an ex-romantic partner upset about the relationship; by accusing a professional athlete, the accusation garnered media attention, which harmed Jermell professionally; and the accuser sued Jermell in civil court for monetary damages. A key in this case was to start early by putting the evidence before focus groups to see how they reacted and what arguments would carry more weight later in trial. The mock jurors heard the best evidence from the prosecution's case and on the defense side, they did not hear or see any evidence the court might exclude. The focus groups not only indicated what evidence was important to them and what was not, but also helped shape defense themes and arguments and became a part of the trial from jury selection through opening statements to cross examination, direct examination, and ultimately in closing argument.
Defending the wrongfully accused in the era hyper-focused on family violence can be daunting but is not impossible. Done correctly, the truth can prevail, and jurors can feel proud of carrying out their civil duty and upholding justice.
Mike Howard is a criminal defense attorney in Dallas. He represented Jermell Charlo at trial. Howard’s email is mhoward@mikehowardlaw.com.
