“I swear to you, Steve, I did not do it!
Virtually every client of mine accused of a crime has uttered a variation of the above since I became a lawyer over 27 years ago.
Panicked and sweating, my client (I will call him “Ethan,” not his real name) was sitting in my office. Ethan continued: “She was my girlfriend. I had sex with her and then told her that I was breaking up with her. She went nuts and started to scratch and hit herself, all the while screaming “rape!” She smashed lamps and threw things so the neighbors could hear. I tried to calm her down. She scratched my face with her fingernails and then screamed even louder. I freaked out and ran before the police came. Some of her neighbors saw me leave her apartment.”
Ethan described her as petite and pretty, someone who cried easily. I also learned that she had over-stayed her visa and was thus illegally in the United States. She had hoped to marry Ethan in order to stay in the country.
A few days before he came to my office, Ethan received a call from an investigator from the San Francisco police department requesting an interview with him at the station house to “clear up some questions.” He was understandably fearful. Without any eyewitnesses, it would be his word against the district attorney, it’s forensic laboratory, the Sheriff’s office and a typically conservative, pro - prosecution Judge.
To my mind, Ethan’s story was plausible. But was it a believable one? On the prosecution’s side was a small, pretty woman who cried easily. The district attorney’s forensic laboratory would produce evidence of sex (in the form of Ethan’s semen) , plus signs of a struggle in the form of Ethan’s skin fragments under her nails. In addition there were the broken items in her apartment and her screams, heard by neighbors.
I grilled Ethan about the facts, testing him for contradictions. He seemed genuine and truthful. Nevertheless I was cautious. I remembered my first client interview as a law school intern working for the Marin County Public Defender’s office. The interviewee was an inmate behind bars awaiting his first court date. He cried. He told me he was in the wrong place at the wrong time. He was a victim of circumstance. I believed his version of the facts - until I found out that two eyewitnesses had a video of him battering and robbing two victims at the same time with a baseball bat.
Ethan was just as emphatic as my first client. I placed a call to the police investigator and discovered where the girlfriend’s scratches were placed on Ethan’s body, and how her clothes were torn. My experience told me that those wounds could have been self-inflicted, as were the way her clothes were torn.
If Ethan’s case went forward, Ethan would have a choice. He could either accept a “plea bargain” (for a definition, please see my website under “Getting Started – legal process”) to a reduced charge and sentence, or proceed to trial, risk conviction and be sentenced to significant jail time in a California State prison for rape.
Or, I could rely on my experience and instincts and allow Ethan to be questioned by the police investigator, knowing that anything Ethan said could and would be used against him in court. With Ethan’s consent, I chose this course of action.
Ethan and I met with the police investigator, who recorded the interview. In preparation, I told Ethan to emphasize some facts, but not much else, as I wanted him to be as he appeared before me – scared, honest and emphatic. The investigator grilled him as I had, looking for factual inconsistencies and judging his character. I apprized the investigator of the girlfriend’s motive to lie - for revenge that she would not be able get a green card through him.
A few days later, the police investigator called me. The investigator told me that after his interview with Ethan he had interviewed the girlfriend again. This time, she broke down and told the investigator she had made the whole thing up because she was upset over the break up and wanted to marry Ethan. As a result, no charges would be brought against Ethan.
There have been few times during my legal career that I have allowed the police to interview my client before an arrest was made. Because of the risks involved, I think long and hard before recommending such a course of action to my clients. However, on each of those occasions, without exception, charges were dropped.