Defense Attorney’s Perspective

Defense Attorney’s Perspective


Note:All articles in this edition refer to the Guest Editor’s column found here.

Motion for Bail Reduction or Own Recognizance

The first step in this case is that counsel needs to try to get Stefan Knight out of custody. This means a hearing on a bail reduction or OR (release on his own recognizance, without having to post a bond) motion. Counsel would emphasize the golden fact that Stefan has no criminal record.

Character letters from upstanding persons in the community can be very influential. These letters should avoid any opinions about the merits of the case – no protestations that client is innocent or that this all must be a big misunderstanding. For a bail motion, the judge must assume that the charges are true. The judge will focus on whether the client poses a danger to the community, and whether the client is a flight risk. So, the letters should emphasize that, if the charges are true, that this incident would have been completely out of character for this gentle, respectable man.

Unlike most public defender clients – who are either homeless and completely alone, or, whose most respectable acquaintances tend to be drug addicts or people with long records – Mr. Knight has strong community connections. Ideally, we’ll have letters from: (1) client’s employer (to extol client’s reliability, maturity, and steadiness); (2) a minister/pastor (to describe client’s virtue, charity, generosity, clarity, respectability, and fatherly manner); (3) other parents (client is always a kind, sensible caregiver, and these parents would not hesitate to have him take care of their children); (4) Little League or soccer coaches (client is always at the games, and is always calm and the voice of reason); (5) family members (client’s avuncular, peaceful manner is the best influence on the family kids); (6) other family members (client’s discipline style is firm but restrained; and even when in his cups, client remains good-humored); (7) teachers (client has always seemed even-tempered and kind; Miles and Whitney have expressed nothing but adoration for their dad and complete relaxation and comfort in his presence). Maybe there’s a councilperson, or a chain restaurant owner among the Knights’ acquaintances who can write impressive letters.

Even better than letters: many of those community pillars may be sitting in the gallery in court. Counsel will have to contact some of the letter-writers to present a strong showing of community solidarity with Stefan.

Another front to shore up for the bail motion is proactive, preemptive remediation. Get Stefan signed up in an intensive alcohol abuse program. Also, sign him up for both parenting classes and anger-management treatment. We’ll want to bring in letters from all three of these programs stating that Stefan is already enrolled. “But won’t that be equivalent to an admission that he’s a mean angry drunk who beats his kids?”, you might ask? No. First, these classes will address any concerns on the part of the judge and DA that client has a problem and the kids are in danger. Second, the California Evidence Code precludes the use of corrective measures against a party in court. This rule is based upon the public policy that we want to encourage, not discourage, any party from taking measures to improve safety. Third, Stefan’s approach will be that he never intended to cause an injury to his beloved son, and that he’s horrified and ashamed at the mere possibility that he may have done so. Stefan wants to do everything he can to prevent any harm from befalling his children, even if from him. (We could also offer that Stefan can live separately from his children for a short time) — Stefan’s main objective is to keep them safe and to keep working to provide for the family.

The Defense and Preparatory Investigation

First, it’s unclear how the femur fracture occurred. A kick in the rear wouldn’t fracture a femur. There’s no evidence of the sound either of a bone breaking or of the kind of excruciating, focused pain that a break in such a large, nerve-rich bone would cause. There’s no evidence that the boy was limping or couldn’t move his leg before mom took him to the hospital. No physician who treated the child opined that Stefan’s rear kick was the likely cause of the fracture. And, look at what the boy said. Not, “Daddy hurt my leg,” but that his butt hurt and that Daddy had given him “a bad time out.” We will want to point out to the jury all the evidence showing that the cause of the fracture is questionable, at best, and certainly hasn’t been proven beyond a reasonable doubt. The juror’s job is not to become sleuths and determine how the fracture occurred. Rather, ladies and gentlemen, the only question before you is whether the state has proven, beyond a reasonable doubt, that Stefan committed great bodily injury on his child.

We will want to consult one or more trauma experts. Could the femur have broken much earlier in the day (or even on a previous day), during the children’s roughhousing, or outdoor play, and the spinning around and rear-kicking may have exacerbated it? Could the fracture have occurred after the mom returned home? Could the kid even have walked on a fractured femur?

Nor does the evidence bear out the children’s claim that they were afraid of their dad. Stefan was at home when the kids were yelling and fighting, and when the boy was sassing his mother. Stefan’s presence certainly didn’t put a damper on their behavior. Even so, a commanding authority figure is not only an acceptable archetype for a father — it’s an idealized one. We will want to interview the children. Did the officers question the children using leading — and suggestive — questions? For instance, did the officers say, “are you ever afraid of your dad? Say, maybe, when he gets mad?” Children are very suggestible, and tend to want to give adults — especially strangers in a uniform — the answers that the adult seems to be seeking. If the children’s interviews weren’t recorded, but just summarized — and interpreted — in the officers’ reports, there’s another basis to question the children’s “fear” of Stefan. In fact, there’s no evidence of any prior violence on the part of Stefan — toward anyone.

On the contrary, Stefan adores his children and would never harm them. Counsel will bring in many character witnesses — probably our upstanding salt-of-the-earth letter writers (hopefully, very much like our jurors) — to testify about Stefan’s patient, gentle manner, reliability, and sensible approach to kids. The jurors will be instructed that testimony about good character alone can raise a reasonable doubt. In other words, a juror may find Stefan not guilty based only upon the testimony of our character witnesses.

There’s another jury instruction that will be our ally. Under California law, while a parent may not endanger or cause any major injury to his child, the parent may engage in reasonable discipline, including corporal punishment. Moreover, what’s reasonable spans a wide range of parenting styles, from the Montessori time-outs and discussions, to tough love privations, to spanking and whipping. Evidence of varying cultural norms would be helpful to persuade jurors squeamish about corporal punishment. I’ll have to see if the “Tiger Mother” author is available to testify as an expert in old fashioned, old-country child rearing. In closing argument, I could mention Facebook posts that pop up in my feed: “My parents spanked me as a child. As a result, I suffer from lifelong respect for others.” I’ll want to play excerpts from comedy routines by Jeff Foxworthy and Dennis Leary: their dads wailed on them and “kicked my ass,” treatment from which all the “idiots” and “whiners” who surround Jeff and Dennis would benefit. I’ll want to show the Newsweek magazine cover from about 20 years ago entitled “Shame.” That Newsweek heralded shame and old-fashioned punishment as back in style, long needed after a generation of spoiled new-age children. And, of course, I’ll want to trot out the book, Tiger Mother.

The kind of jurors that we’d look for wouldn’t be the usual liberal intellectual defense-juror type. Instead, we’d want a traditional, old-fashioned juror who believes wholeheartedly in a parent’s right to govern his children as he sees fit. No “it takes a village” types. Conservatives would be better than liberals; creationism over evolution; men over women; and first-generation immigrants would be fantastic.

Here, we would argue that Stefan engaged in discipline likely to cause shame rather than pain. A “kick in the ass” is, quintessentially, a symbolic gesture. It means, “straighten up and fly right” and “stop being a fool.” It’s a demonstration, not meant to cause pain, but to make the child feel shame about his behavior. We’ll want to interview Stefan’s relatives. Is corporal punishment — especially symbolic corporal punishment — commonplace among Ukrainian families? Hopefully, the answer will be yes, and a few of these relatives can testify.