False accusations, back braces and pizza. That’s a story.

Congratulations on this Not Guilty verdict! I actually don’t know very much about the case.  Would you mind giving me a little bit of background?
Brecken:  Sure.  Our client, Michael, was accused of rape in the first degree in September 2015. He was locked in jail and we were hired to represent him in his trial.  The allegations against him were that he came into the apartment of a lady he knew from a previous relationship, they talked for a bit, she went to the bathroom, and when she came out he was holding a knife to her. She said he forced her into the bedroom where he tried to force her to give him oral sex, then he threw her on the bed and raped her.   She then said he forced her to wash off, ordered her a pizza, and left.   After we worked with our client and listened to his story, we came to understand that it was consensual sex.   As we worked with him to discover the true story, Michael told us that he went over to see her that day.  They had had sex together before, and on this day, she seduced him, they had sex, he ordered a pizza, and then received a work call and he went out on the service call.  One of the most difficult facts about the case that we had to deal with was the fact that this lady was two months out of a surgery and was wearing a full upper body brace that went from her waist to her neck with metal bars that kept it ridged.  It was both a back and front plastic brace and basically fused into her spine with bolts, so that she had very limited range of motion.  Given that, and with her story, it appeared that she had everything going for her.  And with her as their witness, it appeared the State prosecutors had everything going for them.  She was sympathetic.  She could speak.  Our client is a big, burly-looking guy and it seemed at first that we had everything against us.  It was tough, and we knew we had to figure out a way to get our client’s truth out and before the jury.  The way we did that was by using what we had learned at TLC and getting the unbelievable parts of her story out in the open, and then allowing the detective to tell us the truth.  

 

What was the hardest part of the case?
Blake:  Michael is not on any kind of disability, but he is slow, in speech and in thought.  He was very scared and he had a difficult time communicating with us.  While some of the circumstances and story lines were the same between the accuser and the accused, they were fundamentally different in what Michael actually did.   It was not fruitful to do a TLC-style re-enactment on his story, but we did do a reenactment of her version, and in that process we learned why it just couldn’t possibly have happened that way, given her brace and her physical limitations.   
We didn’t feel we could put Michael on the stand because of his limitations and his poor ability to communicate.  What we could do, though, was to tell his story through the statement that he gave the police officer.  We wrote out his story in the way we were taught by a TLC instructor, Paula Estefan:  page by page, theme by theme, element by element — like reading a single page in a children’s storybook through this interrogation or interview.   This really helped us when we got to the cross exam of the State’s detective.  Because we had studied his statement to the last detail, and knew his story, during cross exam, Brecken could ask the detective questions like, “Michael told you that he had a previous sexual relationship this woman, did he not?.”  And the detective answered, “Yes, that was Michael’s story.”  That was his answer to everything we asked.  Eventually, the detective got so tired of repeating that same line that he stopped saying it, and instead started just answering “Yeah.”   So during our cross exam, we had the officer essentially confirming Michael’s story by not answering all the way.  Not only did it become the truth for us, it became the truth for the detective, and as it became the truth for the detective, it became the truth for the jury. We also discovered that he didn’t to a full job on his investigation.  He didn’t talk to the pizza delivery guy to find out if she had seemed like she was distressed or disheveled or if there was a problem for he when he delivered the pizza after Michael left, and he didn’t look for the knife that Michael was accused of using.  Brecken really did a great job on this cross exam. 
Brecken:  Blake then did the cross examination of the accuser and that went extremely well, again because of the methods he had learned at TLC.  He had to establish to the jury that this woman was not telling the truth, yet at the same time, we couldn’t just outright call her a liar.  Her health had deteriorated by the time we went to trial, so she was in a wheelchair, had no shoes on, and clearly suffered atrophy in her legs.  We had to treat her with respect, even though she was falsely accusing our client.  Blake spoke with her about her past mental health history, and thru that process, she confirmed all the reasons why she would have made this up.  Not one time during the trial did we, as the lawyers, accuse her of making it up, yet we were able to get all 12 people on the jury to come to the conclusion that she had indeed made it up. That was born out of that cross examination.
 

What else happened in this trial that led to your success?

Brecken:  I did the voir dire in this case. I don’t think it was perfect but it’s probably the best voir dire I have ever done.  One of the biggest risks we took was on a retired cop.  Not only had she been a cop for 18 years, she investigated crimes against the disabled and elderly.  She said that she didn’t think she could be fair and would side with the State and what the cop said.  The judge actually turned to me, looked at me, essentially asking me if I had an objection.  I said, “Judge, if you’re asking me for an objection, I hear from her that she is willing to listen to the evidence.  I would have no objection to this juror.”  She nodded at me.  We knew that our cross examination of the detective would become very important and this woman actually became our foreman.  I had never even contemplated the idea of leaving a cop on a jury in a criminal case before attending TLC.
Blake:  I think that picking a jury has been the biggest change for us since going to TLC.
Brecken:  It was a radical change for me.  The hardest part was standing up there and letting go of the fact that I fear voir dire.  But once I did that, I felt comfortable in some regard.   
Blake:  

We had planned a question that we were going to end on, and we worked and worked on it to get it right.  It was going to be our coup de gras!  Brecken gave a great long personal share about his son and opened up that there are different ways to deal with people who we fear.  We can either ignore them, we give them the side-eye, or we ask a question.  He asked them, “What do you guys want to do?”  Not a soul spoke.  Not one. 

Brecken:  [laughter] It fell completely flat!
Blake:  It was crazy that Brecken came in with this  great personal story and this question that we thought would generate a massive conversation and…
Brecken:  

Flat.  Not one word.   

Blake:  Just died. [laughter]  Eventually Brecken called on somebody, and they gave him a half-answer, and then we just kind of sat down on it.  You know, we hear all these success stories about TLC methods working like magic, well that was just miserable.
Brecken:  Yeah, it was.
Blake:  All I ever heard at the Ranch were these stories of people who really drop a bomb during voir dire, drop something hard and real, and it always paid off.  That you just wait there for awhile, let it be quiet and then all of sudden it would explode and everybody would talk and it would be awesome.  Well, it did not work that way for us!  That was just a miserable moment. 
Brecken:  Yeah it was, but there was eventually pay off!  [laughter]
Blake: I think Brecken is right. After we told our story in opening, explained what we were going to talk about, and then seeing her portion of the cross, by that time the jurors were thinking “Okay, so that’s what they were trying to say during jury selection!”  They got it — just a bit later than we thought! 
Brecken: Yeah,  so if nothing else, as flat as it felt for us during voir dire, I believe that it sparked something in those jurors to look for during the trial.

So having been through that voir dire experience, would you do it again?  
Brecken:  Oh yeah, absolutely.  I can say that this wouldn’t even come close to one of the greatest TLC voir dires done, but it was by far the best voir dire I’ve ever done in my entire career and I believe it really contributed to the final success of the case.
  
What do you think prepared you the most for this case?
Brecken:  I would say for myself two things: one was the voir dire, that’s the hardest thing for me. The second was cross.  It was letting it be what it was.  I never engaged or argued; I just let the detective answer his questions as I told our story.  I look forward to the next time I give a closing because of things I learned at the Ranch.  All the stuff I learned that I can do better and the things that I did better were really noticeable to me, especially afterwards.
Blake:  I think mine would probably be cross because we did a really good cross on her.  I just got back from Grad II at the Ranch in August where I worked on my opening. I just told a story.  We stayed true to the line we were taking, and we never veered from it.  We didn’t get in and play with the State.  We didn’t care what they were doing.  We told our story, we stayed to our story, we kept at it, and in the end the jury acquitted our client.  It was a great feeling and I am so happy for Michael. 

 

 
   
About Brecken Wagner:

Brecken graduated from TLC earlier this year, in the class of July ’16.  After graduating from the Oklahoma City University School of Law in 2003, Brecken began practicing criminal and family law in Oklahoma City.  In 2005, he began working as an Assistant General Counsel with the Oklahoma Department of Mental Health and Substance Abuse Services where he assisted writing and implementing legislation that changed the way Oklahoma Courts treated persons accused with a crime who could not attain competency due to mental illness or defect.  Mr. Wagner left the Department to return to Missouri to work for the Missouri Public Defenders office to sharpen his criminal practice and trial skills. While working for the Department of Mental Health, Mr. Wagner traveled several times to the McAlester, OK area and fell in love with the people and local culture.  In May of 2007, Brecken relocated to Oklahoma to begin his practice there.  In April of 2013, Brecken joined Blake to form their lawfirm, Wagner and Lynch.  
 

About Blake Lynch:

Blake is a Sept ’15 graduate of the Trial Lawyers College.  After graduating from the University Of Oklahoma College of Law in 2009, he has practiced law in both McAlester and Wilburton, OK with a focus on civil and criminal law.  He also practices in tribal court for the Choctaw and Cherokee tribes. Mr. Lynch has been very involved in the local and state Bar association, serving as District 2 chair in the Young Lawyers Division and as Pittsburg County Bar President.  

2017-12-27T11:10:39-07:00 October 12, 2016|TLC Blog|
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