Seeking a New Trial

Here at the Marshall Defense Firm, we like our clients to come to us as soon as they see they’re in big trouble. That’s when we have the most options to help them.

Sometimes, though, we don’t hear from an accused until they have been found guilty at trial. A person in that situation often has a compelling account of the unfairness of the trial. Courts are reluctant, though, to grant new trials. Nobody likes to discard and redo a big piece of work.

Last autumn, I took on the case of Richard Cain. Rich was accused of Rape of a Child in the First Degree in Benton Co. Superior Court, in Kennewick, Washington. His case had gone to trial twice. The first trial ended in a hung jury.

In Rich’s second trial, the jury found him guilty. Under Washington law, that meant he went to jail immediately; bail was prohibited.

Rich was angry. He felt his attorney in his second trial had not put up a defense. The attorney had called no witnesses. Rich believed the jury didn’t have anywhere near the whole story.

I had to explain to Rich that the rules of evidence usually don’t allow the whole story to be told. He wouldn’t get a new trial just because it hadn’t been. And in general, a defense attorney’s decision not to call witnesses is within the attorney’s prerogatives.

But the decision not to put Rich himself on the stand was different. A criminal defendant has a constitutional right to testify in his defense. His attorney is not permitted to decide that he won’t. Rich said his attorney had done that.

I set about to see whether we could prove what Rich said. It’s easy for a defendant desperate for a new trial to claim he was denied his right to testify. Claiming it would not be enough.

And even if we persuaded the judge that Rich had been denied his right to testify, we’d have to show also that the trial might well have turned out differently had he testified. The law has several doctrines that amount to “harmless error”—if the jury would probably have reached the same decision even if things had been done right, we won’t worry that they were done wrong. We won’t have a do-over.

At the Marshall Defense Firm, we prepare our cases thoroughly. When we go to court, we want to be armed to the teeth. So I looked into Rich’s case to see whether there were any other reasons for him to get a new trial. And I found one.

Seven people who knew Rich’s reputation quite well had been ready to testify at his second trial. They would have testified that his reputation didn’t fit with raping a child. One place he had earned a good reputation was in teaching karate to children—girls as well as boys.

I discovered that Rich’s attorney had not presented this evidence well enough to get it admitted. This was one reason no witnesses had testified for Rich.

It took six months to bring all the evidence and legal arguments together—six months that Rich languished in jail.

On May 6th, we got back into court for the judge to decide whether Rich would get a new trial. If the decision were no, Rich would be sentenced immediately and whisked off to prison, perhaps for the rest of his life.

One of the witnesses at the hearing was the attorney who had not called Rich to testify. He acknowledged that he had not put to Rich the decision whether he would testify.

The judge found that Rich had been denied his right to testify and that his attorney had performed deficiently in offering testimony by character witnesses. The judge also found that the denial of the right to testify undermined confidence in the guilty verdict. He ordered that Rich receive a new trial.

Rich bailed out of jail the next week. He can again feel sunlight on his face. He can again touch the bark of tree or a blade of grass. He can again embrace his loved ones.

Rich has liberty, for now, and a third trial in a few months.