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Opinion from a defense attorney who understands Rape and the Law.
There are a lot of questions in the Winston case. Being a defense attorney for years, and specializing in (but not limiting my practice to) rape defenses, these are the questions I ask. Another attorney or person may have other questions.
After seeing the initial police report, and knowing that the police responded to the call and took the complainant to the hospital. There are a few issues. Most speak to the issues of the height. Of course the weight is listed as 240 lb and muscular. A person who is 5' 9" and 240 pounds is not just muscular, they are body building types.
But other problems are also in the report. It describes the attacker as polite. That isn’t normally a word you would associate with a rape. In fact, it is counter-intuitive. So, he politely asked me to undress and politely asked me to have sex with him. Perhaps she/complainant meant that he was polite when they met and when he came into the apartment. But an attorney would have a field day with this comment. Natural human psychology comes into play. If someone just raped you; you are mad at them. Livid. You feel violated. Polite would be the last word used to describe a rapist.
In addition, the report was of sexual assault by force. Does that sound like it was a "polite" interaction? Overbearing. Vicious. Forceful. These are words to describe a rapist.
The other problem is that the police report said that a juvenile was not involved on the first page. How did the victim know he wasn’t a juvenile? She would have been asked. A seventeen year old is a juvenile. Why wouldn’t she respond; "possibly?" How old was Winston at the time? Was it possible he was still a juvenile? Since she knew that he was older; was she claiming that the attacker was much older?
Finally, the report also says that the complainant was drinking prior to the attack.
She retains her aunt’s law partner to represent her. Anyone who knows attorneys knows that they have to do special work for special clients. They have to do more work for the family member of a firm employee than they do for their own family. The family member will rest easy knowing the attorney is doing everything. The employee knows what is done in a normal case, and demands that extra is done in their case. This comes out when looking at those months lag on without work. Would the employee let this happen? ONLY IF THE CLIENT WANTED TO DROP THE CASE!
Why wasn’t the prosecutor called by the attorney for the complainant? Every time I ever have a case, especially when my family are the victims; I call the prosecutor. I want to know what they are doing. I may also talk to the police, but I mainly talk to the prosecutor’s office.
Why didn’t this attorney ever call the prosecutor’s office?
Here we start getting to the meat and potatoes of this case. The attorney is retained by the girl 5 days prior to her identifying Winston as the attacker. It sounds quite clearly that the attorney and the girl had a meeting and the attorney said, "we will have no secrets; you must tell me everything".
So, only after this meeting with the attorney, does the girl identify Winston as the attacker. She retained the attorney on January 5 and identified Winston on January 10th. Did she see him at school on January 10th and then recognize him? Am I missing something? Wasn’t January 17th the first day of classes for the spring semester? Therefore, she knew him prior. She knew him and lied to the police about his identity.
This starts telling you that the girl knew the attacker, and only after meeting with the attorney, did she come forward with his name. In case you doubt these dates. Look at the victim’s 2nd statement from her attorney who says they wrote Detective Angulo on January 11, 2013, stating that all communications with the victim were to go through her attorney.
The rape shield laws are not that strong in Florida. They are much tougher in my state, and I usually attack the rape shield laws. However, in this case, the rape shield law is going to fall for the following reason.
First, Florida Statute: 794.022 (2) states: Specific instances of prior consensual sexual activity between the victim and any person other than the offender shall not be admitted into evidence in a prosecution under 794.011. However, such evidence may may be admitted if it is first established to the court in a proceeding in camera that such evidence may prove that the defendant was not the source of the semen, pregnancy, injury, or disease; or, when consent by the victim is at issue, such evidence may be admitted if it is first established to the court in a proceeding in camera that such evidence tends to establish a pattern of conduct or behavior on the part of the victim which is so similar to the conduct or behavior in the case that it is relevant to the issue of consent. I underlined the significant portion.
There are photos of them together. These photos may or may not be accurate. That doesn’t matter. The issue is for the defense, if they might be accurate. Could they influence a jury into thinking she gave consent? Certainly they can. As such, the photos will come in to overcome the rape shield laws. Forgetting everything else and other reasons they may be used; NOBODY WHO IS RAPED THEN GOES AND GETS PHOTOS WITH THEIR ATTACKERS.
If the photos were before the attack; it goes to her credibility. If the photos were after the attack, it would be used to prosecute her for a false report. There will not be a prosecution if the photos are deemed to be after the attack.
However, the other thing that could be used against the rape shield law is her twitter handle of "cleatchaser". I don’t care if it is her instagram or whatever. This shows that she was consenting. No matter how you look at it. It would generally be used to show that she was trying to have relations with someone who wore cleats (i.e. an athlete). If nothing else, this could be enough to have a jury return a verdict of not guilty. JUST THIS ONE ITEM OF EVIDENCE. If the defense is that she was consenting; and she claims that she chases after athletes.....case over (potentially).
Also notice the issue on the rape shield law. When you attack the rape shield law, the defense gets two trials. They put the victim through her testimony twice. There has to be a hearing PRIOR to trial on a rape shield attack.
Now we start getting to inconsistencies. And unfortunately, her attorney is making statements for her and they lead to inconsistencies for the victim. THIS IS WHY ATTORNEYS USUALLY STAY QUIET AND HAVE CLIENTS STAY QUIET.
The attorney says in her first written statement that both she and the police officer Angulo agreed to suspend the investigation until the girl sought counseling. Did she receive counseling? Can the records of the counseling be investigated by the defense attorney? What if she didn’t go to counseling?
Would the girl want to go forward if she knew they were going to get into her counseling records? At what point is the violation large enough?
The attorney says neither she nor her family were the source of the original leak. Here we start looking at ethical sanctions. The girl left the school one day prior to the story "breaking". How did she know when to leave? Only if she was tipped off. Who else would have known to contact her? If the story came from the police department, does anyone think that they would have told the reporter the name of the victim? NOT IN A MILLION YEARS.
The leak didn’t come from the prosecutor’s office; because he didn’t know about the case until the leak. That means there are only three possibilities. The police; Winston; or the victim. I think we can easily rule out the leak coming from Winston. If the leak came from the police, the reporter would not have alerted the victim to the story. Therefore, the leak had to have come from the victim, her family, or her attorney.
The attorney for the girl keeps writing reports for the media. Why? They are riddled with problems. Any 1st year law student knows how to attack these questions that she poses on each statement. She poses a total of 11 questions. They are all easy to answer. This is for the media to start creating bias in the jury pool. That’s not a good thing for an attorney to do.
What victim starts attacking the police? The only people attacking the police are those who are upset that the police are not working hard enough on the case, and those who feel the police are covering for someone. These attacks clearly are in that vein. However, even the attorney agrees that they agreed to suspend the case until the girl went through counseling. Were the police ever informed that she completed counseling and was now ready to go forward? You can’t blame the police for not working on a case that you have agreed to suspend!
The time-line indicated by the police is even more interesting. They indicate that the girl was taken by them to the hospital. On January 10th, she reported that the assailant was Winston. On January 11th, her attorney did not attend a meeting that she scheduled!!!! What attorney misses that type of meeting for a family member of an employee?
Finally, it says that after submitting the toxicology report to the attorney for the girl, that she said she would review this evidence with the family and indicate if the victim wanted to go forward. The police say they were then told that they were told that the victim did not want to go forward.
Did anyone else spot this inconsistency? The police say they were told that the victim did not want to go forward. The girl’s attorney says she would tell the police if they wanted to pursue charges. If the leak from this story came from the girl’s attorney; why weren’t the police notified that she wanted to pursue charges?
And this goes to absolute credibility of the girl....and actions of a rape shield case. The girl through her attorney indicate "If the victim had been aware that Winston’s attorney was alerted as far back as February; she would have insisted that the Tallahassee Police Department immediately collect DNA and interview, at the very least, Winston’s roommate who witnessed the attack.
Do you see the issues here?
First, she says that she had sex in front of another male. She gives evidence of the only witness to this crime. It isn’t just Winston that could face charges. Winston’s roommate could face charges of being an accessory. Nobody has asked for the head of the roommate. If the roommate is not charged, this case can’t go forward.
Second, how does she know who his roommate is?
Do you see the issues coming out? It is about consistency. She knew the attacker when she went to the police. She hid this evidence from the police until she talked to her attorney and was told NOT TO HIDE EVIDENCE.
As an attorney, I realize that clients don’t listen. I also realize that they don’t tell you everything, and sometimes you are left looking like the idiot. As an attorney, I think this is the correct version of what happened.
She and Winston know each other and she invites him back to the apartment. They have sex. For whatever reason, she feels offended and calls the police.
However, she knows that what she is complaining of is not rape. Maybe he was rough. Maybe she was mad at him. I wasn’t there to know. But she knows enough to cover her tracks and lie about the suspect. She gives an inaccurate description. She lies and says she doesn’t know who he is.
THIS IS WHEN THINGS BREAK DOWN. The family gets the medical bill. They ask what the bill is for over Christmas break. She tells them she was raped. They don’t question her story. They don’t mind paying the bill for this issue. Mother talks to her sister and gets everything rolling.
She meets with attorney and tells him who the suspect is. Attorney relays that information to police. Remember, an attorney will usually speak just with the prosecutor. This is why she starts talking with the police. She is trying to push this case forward.
Police contact Winston and indicate they want to speak with him. He contacts his coach. Coach calls attorney for Winston.
Winston meets with attorney. Attorney talks to police to find out why they want to talk to Winston. Then he meets with Winston again, and finds out the version from Winston. Winston then goes and talks to his roommate and other witness (probably girlfriend) and they come to see attorney and sign affidavits.
Winston’s attorney sends affidavits to police with a nice letter advising the girl to drop the charges before an action is taken against her.
REMEMBER...when Winston met with his attorney he also gave the attorney photos of him and the girl together. They were not just in the possession of the girl (who later deleted all of her accounts).
Police advise the girl’s attorney tactfully, and never mention the affidavits, and the case is agreed to be suspended. The victim doesn’t want to go forward. Girl’s attorney calls police and says girl doesn’t want to pursue. Police call Winston’s attorney and advise that girl is dropping charges. Everything settles down.
But....girl’s attorney see’s dollar signs when Winston is a tremendous quarterback. Then she hears that he is one of top 2 people in the running for the Heisman. She contacts girl at school and advises her that she could make a lot of money in a lawsuit against Winston. She could make a million dollars or more. Girl wants money. Girl gives attorney authorization to pursue the case.
Girl’s attorney calls reporter and gives him information. As far as the attorney knows, the girl is honestly a victim. She doesn’t know that the girl has made this up.
Girl’s attorney is only interested in the civil case. She doesn’t care about the criminal case. She just wants the media to report on things to make the money that much greater.
And here we are.
I know I am in the minority. But, I feel sorry for the girl’s attorney. She tried to do the right thing by getting the girl to tell the correct story. She just didn’t know the girl was not telling her the entire story. She is the one left holding the bag.
She overextended herself on behalf of the girl trying to make this case into a more profitable case.
This of course was written before the SA announced no charges. There might indeed be some assumptive errors but generally the review is spot on... Again, Winston was never arrested or charged and certainly the complaint should have never seen the light of day but for some envious slime ball wanting to rain on a absolutely wonderful young man leading the FSU football team to a wonderful season.