06 Nov ASSUMED GUILTY: The Rape Trial of Brandon Boggess
PART 2- Trial
It was the afternoon of Tuesday September 18, 2018. Blake and I were meeting to discuss our final strategy before trial would begin the following morning. It was closing in on the six o’clock hour and we were winding down and fixing to go home. We had just met again with Brandy and explained to her where we wanted her to be and when. She would stay there in our office during the trial and would be brought over only when we were ready to call her. Her presence would remain a secret, she was impeachment witness.
The defense had not listed Brandy as a witness, however the State had, which was odd considering they had never even spoken to her. Our plan was for Blake to cross-examine Accuser 2, and thanks to Brandy we had a list of certain questions to ask her that we knew Brandy would testify was not true. We had put together approximately twelve to thirteen specific situations we knew Accuser 2 would lie about, given her previous testimony from preliminary hearing and written statements.
We were also discussing another situation that had just come up that day. That afternoon I had appeared at a trial motion hearing and there had been some argument about how the trial would proceed. Typically, when a defendant has a record of two or more felony convictions the defense and State will agree to just instruct the jury that the defendant has “two or more felony convictions”, but on this occasion the State was not agreeable. First Assistant District Attorney Adam Scharn objected to my commonly accepted proposal and argued that he should get to mention that the defendant had five prior felony convictions and what they were for. I argued that the nature of his convictions or how many he had was not relevant to whether or not he raped a woman, but Judge Mills began to waiver. In the end he decided that he would stick to the general rule of just telling the jury “two or more felony convictions”, but if the defendant took the stand to testify he would re-visit the issue.
Blake and I had been discussing this for a while and decided that the last thing we wanted to do was leave anything to chance. We wanted to tell the jury anything potentially harmful about our client first. When you let someone else bring it up it appears like you’re trying to hide something, and if we have discovered anything about trying one felony case after another to a jury over the years it’s that you never want to try to hide something from a jury or appear to be. We worked out some last-minute decisions on how to approach jury selection the next day, and called it a night.
I could tell it was trial day when I woke up that morning. My guts were twisted into a knot. I have a pretty common routine to take my mind away from the fear that swells up in me every time I begin a trial. The first thing I do is have a conversation with my fear. It seems strange, but it works for me. I speak out loud to it and ask it where it came from and why. After that I do my usual morning routine then put on my headphones and let whatever music I have selected take me away from myself until I’m ready.
A trial always starts with jury selection, also called voir dire, and that’s when the judge and attorneys ask questions and speak to the jury before selecting which persons are to be removed until only twelve remain. The judge starts, then the State, and finally the defense. I would be doing the voir dire for us while Blake would look on and make notes about the jurors and their responses. Typically, the judge will ask several basic questions and the prosecutor will get up and make the jurors raise their hand and swear to follow the law, and promise them other things. It can be a long and tedious time, especially when the questions being ask don’t tell you anything about the actual people that have been called to possibly serve on the jury.
Ms. Greubel-Ross did the voir dire for the State. By the time she had completed her time with the jury we were already at the lunch break, I wouldn’t begin until after lunch.
I had a plan for my voir dire. I wanted to get the jury to talk about prejudices. This case would come down to whether they believed one person’s story over another, there really wasn’t any evidence in dispute. We knew that Brandon was going to have to testify, what we knew that the State did not, was what he was going to testify to. I’ve told you up to this point that Brandon had a very different recollection of events, which is true, but I haven’t told you what. Brandon remembered this incident very well, and he was able to tell us in explicit detail how the sex act itself occurred. Brandon’s recollection of how things happened that night was totally consistent with a consensual encounter, and Brandy’s recollection of the timeline of how things happened that night were more consistent with Brandon than Accuser 2. There was only one problem, the jury would have to believe Brandon who was a five-time felon, with a full neck tattoo, that admittedly lied to police when he was first asked if he had sex with Accuser 2 at all.
My job that afternoon was to see if a jury could believe him. I started by talking about prejudices, and how, despite the saying, we do in fact judge a book by its cover. I began by telling the jury how I felt when I first laid eyes on him. Let’s face it, those tattoos make a statement. So, I invited Brandon to join me in front of the jury. I asked him to undo his collar and tie and show the jury the entirety of his neckpiece tattoo. The jurors leaned forward to take a good look. I thanked Brandon and instructed him to return to his seat.
As he left I turned back to the jury and noticed a woman on the front row pull up her sleeve and reveal a tattoo she had on her forearm. With that, we as a group began to discuss how we judge someone’s appearance, and we (as a group) concluded that it would not be right to judge Brandon because of his tattoos. (I also managed to discuss that Blake and I have tattoos and accidentally said Blake had a neckpiece…which he doesn’t…yet)
Next, I mentioned that Brandon was in fact a convicted felon. The jury began to discuss how that could also impact how they would judge him. Just as we were getting into that discussion I dropped another fact, which was that Brandon had been convicted of a felony five times. The group grew silent for a moment, and then out of nowhere a prospective juror on the far left spoke out, “Well it depends on what they are for.”
With that I grabbed the list of Brandon’s prior convictions from the podium and began to read them aloud to the jury. I told the jury the charge, when it happened, and that he pled guilty to each of the crimes. When I finished I looked up from my list and waited a moment. “Well”, I said, “How do we feel now that we know?”
The jurors were silent for a moment when finally, one spoke out, “But he pled guilty to all those things, and he’s saying he didn’t do this.”
“Yeah.” Another juror spoke up, “And those charges are way different than this.”
Our jury was coming together, we were confronting issues together and finding a way to solve the problem before us. We were doing it as a group, as one cohesive unit. There was no reason to stop our momentum, so I continued. “What if I told you that the evidence in this case will show that Brandon lied to the police about something?”
“Objection!”, shouted Adam Scharn, “Your Honor, may we approach?”
We huddled at the bench as Adam began to fervently object that I was talking to the jury about facts that would come out at trial. I responded that I was just letting the jury know that Brandon would be accused of lying, which he did, and trying to gage the effect that would have on the potential jurors. Judge Mills asked me if I could use a hypothetical instead, that way I wouldn’t reference specific facts of the case. I agreed and we returned to our places.
“OK, what if I told you hypothetically that Brandon could have lied to a police detective about having sex with Accuser 2, which wouldn’t be a crime at all? And he also may have hypothetically signed a statement that said he didn’t have sex with Accuser 2?”
Then a juror spoke up.
“I was a law enforcement officer for twelve years, people lie to the police all the time. People lie when they haven’t done anything wrong just because they’re intimidated by the police. Especially people that have a history with law enforcement, like your client.”
I of course asked some follow up questions and stepped back to allow the other jurors to speak their piece as well and debate this statement, but I knew in that moment that we had formed the jury we needed for this trial. Brandon was going to get a fair trial from this jury, all the thunder had been taken from the government, they would have to rely on the evidence in this case, rather than the natural built in prejudices that we all carry with us. I wrapped up my voir dire with confidence, because if we were going to have a trial based on the evidence, I knew we would have a good shot at justice for Brandon.
After I passed the jury for cause, Judge Mills excused them so that the attorneys could announce their strikes to determine what final twelve jurors would remain. As soon as the jury left the courtroom, Mr. Scharn asked to make a record.
Mr. Scharn claimed that what I had just done in voir dire, I guess he meant telling the jury about all the bad parts of our case, was prejudicial to the government and he was requesting a mistrial. He claimed that the government could no longer get a fair trial themselves. I couldn’t help but laugh to myself, not only did the government not understand what we were doing, they were upset that they would have to try this case on the facts. It was a truly astounding moment, and after about fifteen minutes of argument, Judge Mills properly overruled their request.
Eventually the attorneys were able to announce their strikes, the final twelve jurors were notified that they would hear the case and were sworn in. After that Ms. Greubel-Ross gave the opening statement for the government. An opening statement is where the attorney for each side gives the jury a preview of what they believe the evidence will be in the case. Blake would give the opening statement for the defense.
Our opening statement was Brandon’s story. It was his recollection of what occurred that night in his words. A full preview of what he would say when he took the stand. Blake took Brandon’s story and delivered it with a dramatic flair that kept the jurors hanging on every word. They were focused and ready for the task that lay before them.
Immediately upon the conclusion of opening statements, the government called Accuser 2 to the stand. Ms. Ross-Gruebel examined Accuser 2. She testified as we expected and consistently for the most part with her testimony at preliminary hearing. At preliminary hearing it was me that cross-examine Accuser 2, and some of our exchanges became heated. Especially when I asked her about her addiction history and treatment. We decided for trial it would be better to do the opposite of what the State probably anticipated and prepared Accuser 2 for, and let Blake do her cross-examination.
We had no interest in upsetting Accuser 2, or arguing with her. She was a sympathetic figure, and even though we felt she was lying, we still felt sympathy for her. There was something here that drove her to lie initially and then keep the lie going, and that was just sad. Our goal was those thirteen questions in which we knew her answers would be disputed by Brandy.
Blake’s cross-examination was better than we could have expected. It was obvious that Accuser 2 was thrown off by the fact that he was the one questioning her. He never appeared to be opposition to anything she said, but instead just wanted to clarify and explain her testimony. In fact, Blake was just getting her to be more specific about the things she was saying that we knew would be disputed by Brandy. One question that would always plague us would be “the why”. Why would someone keep up the lie?
We knew from public records that Accuser 2 was a single mother and had had custody issues with the father of her child in the past. Blake expertly pointed out how bad her actions that night, going out, taking more suboxone than she was prescribed, being in the apartment of a strange man with a long felony record might appear if her child’s father found out. She acknowledged that was true. She also agreed that if she were raped, then these other things she did that night no longer seemed as bad. By making a connection with her, Blake was able to get her to answer the question of “the why” for us, she told the jury that she did have a motivation to lie, she had a reason, and we knew the exposition of the lies she had told from the stand were going to come the following day when Brandy took the stand.
The government objected several times during Blake’s cross-examination, and specifically over one question. According to Brandy, Accuser 2 had told her that she contacted a certain member of law enforcement, because she had had a sexual relationship with that officer. The State claimed that this was unlawful, which it wasn’t. We knew she would deny this flat out, which she did. We also knew that Brandy would confirm it was true, which did two things. First, it confirmed that Accuser 2 took the stand, swore to tell the truth and testified dishonestly. Second, it showed that the investigation was potentially flawed by a personal relationship between Accuser 2 and the officer. Further, we knew this officer would take the stand the following day, and if he denied that there was a relationship, we would have two of the State’s witnesses in a fundamental disagreement. It would end up being what we didn’t know that would have the greatest impact on this case.
We broke for the day. Blake and I met for a few moments and made sure we were on track for how we were going to proceed the next day.
Trial Day Two
Day two began with a calm walk from our office to the courthouse. Both Blake and myself were oblivious to the fireworks that were about to come.
We entered the courtroom and Judge Mills did as well shortly after. He announced that it was his understanding that the State wanted to take something up before the jury came in. With that Mr. Scharn stood and began to once again argue that their objections the previous day should have been granted and that they were again requesting a mistrial.
SIDENOTE (gonna drop some legal knowledge here):
I was in a very interesting spot here. A request for mistrial is essentially a request for the court to dismiss a case. When the defense is granted a mistrial, the defendant may still face trial again. The government can continue to prosecute the Defendant. However, if the case is dismissed at the request of the state, after the jury is sworn, the case is over. Once a jury is empaneled jeopardy has attached. A defendant cannot be tried for the same crime twice by the government. This is a fundamental constitutional right to be free from “double jeopardy”. So, when the Court asked me to respond to its request for a mistrial, I really couldn’t say anything. I knew that the defense had done nothing wrong to warrant a sustained objection, but if the State’s request was granted then the case would be over and Brandon would walk free. So, I did the only thing I thought I could do, I just stood there and didn’t say anything.
Judge Mills again overruled their request now for the third time. When Judge concluded, Mr. Scharn spoke up again and said that they believed they were entitled to an appeal, and in anticipation the District Attorney, Chuck Sullivan, was in Oklahoma City parked at the Judicial Center and with the text he just sent, Mr. Sullivan was walking into the Court of Criminal Appeals to file their appeal.
I have seen many things in and out of trial in my career, and I’m not usually prone to surprise, but this one certainly surprised me. First, I could not think of any legal authority at all that would give them the right to appeal the court in this instance. Second, after everything that occurred in court the previous day, this is the plan they had come up with for today?
Mr. Scharn then asked the court stay the trial until their appeal was heard by the Court of Criminal Appeals. At this point I couldn’t stand silent anymore.
“Your Honor,” I said, “this jury has been sworn and heard evidence. If you grant their request, then we are going have to sequester this jury. Are you going to send them all to the Holiday Inn?”
What I was saying was correct, if the Court stopped the trial, then we had to lock the jury up and not let them talk to anyone until the Appellate Court ruled, whenever that might be. (There might be some jurors reading this that have no idea how close they came to being locked up in a hotel.) I asked the Court to deny their request and order them to call their next witness.
The Court did, but then the prosecutors asked if we could approach the bench. When we got to the bench, Ms. Greubel-Ross explained that in fact Accuser 2 did make at least one false statement during her testimony the day before. I wanted to yell aloud, “So this is what this is all about!”, but I kept quiet and let them continue. They told the Court that their officer witness confirmed to them that in fact there was a sexual relationship between the two at one time. They next said that they anticipated that we would call an impeachment witness and they wanted to know who it was.
Well that person was Brandy, and Brandy was in our office with the door literally locked. We had anticipated that the State might try to do something to interfere with her testimony so we took the added step of securing her in our office until we called her as a witness.
The State wasn’t entitled to know who our impeachment witness was, but that didn’t keep them from trying to argue to the judge that we shouldn’t be able to call that witness to the stand. Their argument was that they were entitled to notice of who this person was, and that’s when Blake spoke up and their mouths dropped.
“We aren’t required to tell you,” he said, “but you should know who it is, you listed this person on your list of witnesses for trial.”
It seems like every trial has that one moment. Well here was that moment.
The State would call two more witnesses to the stand. As their second witness of the day finished her testimony, Blake received a text message from Mr. Scharn. He got my attention and we asked the Court to take a recess.
Mr. Scharn, in his message, asked if Brandon would agree to a plea deal of a lesser non-sexual assault on this case and Accuser 1’s case, and credit for time served. If he accepted Brandon would walk out of jail that day. We talked to Brandon about the offer. He would plea Nolo Contendre (No Contest) and both of the cases against him would be settled, allowing him to walk free for the first time in months.
A plea of No Contest is not a guilty plea, but it allows the court to find guilt and dispose of the case. This was not an easy decision for Brandon, he maintained that he was truly innocent, but understood that even if the jury found him not guilty in this trial he would likely remain in jail for months before the case with Accuser 1 would go to trial. He asked us lots of questions: Yes, it would result in a conviction for assault and battery. No, you would not have to register as a sex offender. No, there would be no probation or supervision.
In the end he understood it was his decision to make, and he decided that he would take their offer so he could go home. We returned to the courtroom and informed the judge. Judge Mills called the jury in and thanked them for their service and told them they were free to leave.
As the court continued to take up the business of Brandon’s plea I left the courtroom and went into the lobby. There in the lobby were all twelve jurors with puzzled looks on their faces. When they saw me come into the lobby they migrated toward me, and began asking several questions. I explained to them that the state had offered a plea deal that caused the case to come to an end. Before I could explain the reason why Brandon agreed to the offer I was interrupted by a juror.
“Well we just got to all talk for the first time and we took a vote. Nobody was thinking he was guilty. We all agreed.”
I thanked them and went on to explain Brandon’s particular situation. I answered some more questions and thanked them for their service, then returned to the courtroom to finalize Brandon’s plea. He was released on both cases that day.
Every case has a story and Blake and I work to find what that story is before anything else. We learned from this case that the story may be more than just the incident, but the person as well.