Press

Far More than “He-said, She-said” in Latest NFL Rape Case

The rape charges filed earlier this month in Indianapolis against Colts special teams player Joshua McNary are, sadly, only the latest accusations of violence against women- sexual violence, in this case- against members of the National Football League.

McNary appeared in court for an initial hearing last week and pleaded not guilty, his attorney emphatically denying the charges. This is, of course, appropriate and generally a good defense attorney’s job when the case appears to be one that will likely 1) attract media and public speculation and 2) go to the mats in a jury trial.

Like most, I know only what’s been reported and would take no firm stance about McNary’s guilt or how the case will likely play out. I do know, as I’ve stated repeatedly in this space and many others, that very few rape allegations are false at their core, and that rape is grossly underreported, not something tossed around for vengeance, vanity or money, despite the endless droning of the paranoid and/or finger-wagging set. Regardless, that’s as far as I’d go with any factual speculation.

At least one quoted expert though, former prosecutor and current defense attorney Jack Crawford, grossly oversimplified, by all accounts so far at least, what’s likely to be seen in evidence.

In short, he referred to it as a “he-said, she- said” case, a term I’ve come to despise at the same time I’ve simply gotten used to it. It implies, of course, that the criminal charges rest only on the word of the complainant, the word of whom will be challenged by the defendant, leaving the jury in a position of deciding which one to believe. Although a popular characterization of many sexual assault cases, “he-said, she-said” is literally never accurate. I was taught many things by my mentor and former boss Victor Vieth, and among the most important was that corroboration, in some form, is always possible to find and then translate into evidence if the investigators and prosecution team are diligent and creative enough.

Rarely does corroborating evidence constitute a smoking gun, of course; far more often it’s just a simple fact that can be independently proven, and then offered as evidence when it’s shown to support the prosecution’s theory of the case. In tandem with many others, though, it can help a justice-minded but aggressive prosecutor build and then prove a case that a lesser attorney would probably just avoid. Indeed, prosecutors in my experience are often more likely to falsely tag cases as “he-said, she-said” (and thus un-triable) than many on the defense side.

What’s particularly silly about Crawford’s characterization, though, is how inapposite it appears to be in this particular case. The victim here reported within hours of being assaulted. This allowed physical evidence to be taken and an acute examination to be done, both of which will likely favor the prosecution. The quick report also allowed detectives to find McNary and preserve evidence from both the crime scene and his body before either could be disturbed; this evidence also looks promising for the prosecution. Interestingly, McNary appears to have preserved bedding himself for the responders, telling them when they arrived that he expected them. It’s hard to say how that will be used by either side, but it arguably shows consciousness of guilt on McNary’s part.

Crawford certainly isn’t all wrong. He’s correct that the case will not be an easy one for the prosecution to prove. He’s right that intoxication on the part of both parties will complicate matters and likely cut against the credibility of the complainant. He’s probably also right that consent, ultimately, is what the jury will have to decide, since sexual intercourse between the two will be easily established if not outright admitted by the defense.

But he’s wrong to suggest that this case comes down to nothing but the testimony and credibility of the two people at the center of it. A creative, diligent prosecution team, backed with a good investigation, has a better shot at proving this case than Crawford suggests. I’m willing to bet that’s the case, in Marion County, Indiana.

 

 

 

 

 

 

 

American Horror Story: Though the Heavens May Fall, Let Justice Be Done

Tom Hogan is the District Attorney of Chester County, Pennsylvania. He is seeking the death penalty under Pennsylvania law for the murder of three year-old Scott McMillan, who appears to have succumbed to multiple, repeated, and ultimately murderous acts of physical abuse from the defendants in the case, Jillian Tait, the child’s mother, and Gary Fellenbaum, her boyfriend.

These acts included beating the toddler with a homemade whip, smashing his head through a wall, and hanging him by his feet while beating him.

“Though the heavens may fall, justice will be done to these defendants” was Hogan’s final statement at press conference yesterday.

Capital punishment will likely end in this country as society continues to evolve, as the unalterable risks the death penalty imposes are further exposed, and as notions of ‘good’ and ‘evil’ continue to be shot through with the complex realities of mental illness and extenuating circumstances. That isn’t necessarily a terrible prospect.

Regardless, while a penalty of death is still an option, and assuming that Tait and Fellenbaum are 1) factually guilty of the pre-mediated, torturous murder of this child and 2) legally sane, I wish my brother prosecutor Tom Hogan one thing as this miserable case plays out in a court of law:

Success, all the way to the needle.

 

 

 

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“Military lawyers should handle sexual assault cases”

Lost in the discussion about the alarming rates of sexual assault in the military is the fact that this is not a recent phenomenon nor is it the first time the military leadership has been called out to address the problem. I was hired in 2009 by the US Army as a Highly Qualified Expert and tasked with teaching the Army’s JAG prosecutors how to prosecute such cases and to report what changes the Army needed to make to reduce instances of sexual violence in its midst. I observed a culture ripe for exploit by predators and an incoming population particularly vulnerable to their tactics. The leadership I engaged with was, at higher levels at least, open to change. But I also encountered mid-level managers far more concerned with controlling me as a consultant than they were with exploring how to best address the problem in their midst.

Yesterday’s San Antonio Express-News published a commentary piece by me that addresses one of the most essential changes that must occur for the military to effectively address sexual abuse: taking crucial decisions out of the hands of commanders and placing them in the hands of military prosecutors.

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“Dr. Lolly McDavid and Fmr. Special Victims ADA Roger Canaff on the psychological ramifications of abductions”

I was a guest on CNN the other morning, discussing the art and science of conducting forensic interviews with victims of sexual and physical abuse.  I’ve conducted hundreds of these interviews and in this clip I talk about some of the challenges facing the Ohio investigators as they try to piece together a case against the women’s captor, Ariel Castro.

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“Prosecutors Are at Risk, but Security is Limited”

The recent murders of prosecuting attorneys in Kaufman County, Texas, provided a grim reminder of some of the risks inherent in this profession. Actual violence is thankfully an aberration but instances of threatening behavior are not. I recalled one such instance for this piece by John Schwartz of The New York Times on prosecutor security.