Damned if you do or don't defense

By Robert Gavin, Law Beat
Albany Times Union
August 19, 2014

http://www.timesunion.com/local/article/Damned-if-you-do-or-don-t-defense-5699065.php

Troy attorney Jay Hernandez could have employed a defense last week that might have convinced an Albany County jury that reasonable doubt existed in the sexual abuse case against disgraced former Albany deacon Angel Garcia.

But if Hernandez had used that defense, the jury might have convicted Garcia in an hour.

In the end, Garcia was convicted of sexually abusing a girl when she was 6 years old, in 2003.

Hernandez sought to convince the jury that Garcia's accuser, now 17, concocted the sex abuse charge when she was in her midteens so her family, which is in the United States illegally, could stay in the country. Their daughter's status as a sex-crime victim was grounds for remaining, he said.

That argument might have been stronger if the jury had known a key tidbit of information: That the girl's complaint did not surface until after Garcia was publicly linked to an unrelated abuse case. In fact, Garcia had been defrocked for an allegation that he sexually abused a child in the early 1990s — something the Catholic Church believed was substantiated enough to boot him.

Hernandez could have made the case that the girl's family, who knew Garcia, learned of his defrocking and made up the second case to stay in the country.

Here's the problem: Had Hernandez introduced the first case, the jury would have known that two separate children had accused Garcia of sexual abuse. And that might have been too much to pass off as coincidence.

Hernandez, in a classic damned-if-you-do, damned-if-you-don't situation, did not mention the first case.

And it did not come up during the trial.

Garcia's past, however, is known to Judge Stephen Herrick, who will sentence Garcia next month.

Speculation

Local attorney Mathew B. Tully is not afraid of publicity — his firm, Tully Rinckey, has long employed public relations people.

So it should come as little surprise that Tully weighed in on the situation in Ferguson, Mo., where the shooting of Michael Brown, 18, by a policeman has led to protests and the possibility of criminal charges against Darren Wilson, the officer who shot Brown.

Tully's take? Don't expect to see Wilson in prison.

"My prediction: Cop who did the shooting will not be convicted," Tully posted on Facebook while, coincidentally, in the air over St. Louis.

"If it was an open-and-shut case, he would be in cuffs already ... to calm the riots," Tully wrote, saying that eyewitnesses have given statements, a medical examiner's report is finished and gun residue testing is over.

"Not saying he will not be arrested (that only requires probable cause)," Tully said, "but let me be the first lawyer to predict with absolutely no knowledge of the actual facts or circumstances and based on pure speculation that the cop will never get convicted."

Here at Law Beat, we're not sure if Tully is the first attorney to make that prediction. But we'll check with him later when we see how his prediction turns out.