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Lawsuit of the Day: Married teachers ply 17-year old with alcohol for sex

December 6, 2011

2. Law, 5. Pre-Trial, 8. Lawsuits

Lawsuit of the Day:  Married teachers ply 17-year old with alcohol for sex

Oh, my.  This grungy looking couple of 60-somethings got this kid drunk then commenced a threesome.  There seems to be additional victims.  The guy also got nailed for child porn.  Worse yet (from a defense perspective), they developed the relationships over years before commencing The Full Lewinski.

The news first hit in April 2011:

Daniel Shepard, 62, a high school teacher, and his wife, Gay Davidson-Shepard, who teaches middle school, were charged Thursday with multiple sexual abuse and child pornopgraphy felonies. According to prosecutors, they began “grooming” the 17-year-old boy two years ago.

They invited him into their home, gave him presents and allowed him to play video games before they first sexually abused him in April 2009, in the Jacuzzi at their Orange County, Calif., home.

What presents itself in this case is a pattern of conduct both with respect to the instant victim and with additional victims.  What does that mean to the defense?  Offering an alibi is tough – too many contacts with each alleged victim to have an alternative locale.  Claiming it’s all fabricated is tough – disparate victims all describe the same long-term course of conduct.  Where does that lead?  Plead out or bleed out … prison will not be kind to these inmates.  But not so fast!

They entered Not Guilty pleas.  Of course they did!  Arggg, I hate the media.  An Arraignment is the time when the formal Indictment takes hold (in states without a Grand Jury system).  It’s the time when a defendant is formally told of the charges against him or her.  It’s pure procedure.  When a person pleads Guilty, they need to allocute.  This means to “speak out formally.”  It’s Latin, first used in 1615.  It derives from ad and loqui (to speak), which became alloqui.

An allocution is usually done with both a writing (replete with signature blocks) and by speaking in open court.  You’ll hear or read the phrase “Guilty Plea Allocution.”  The defendant, in essence, waives all sorts of rights, including to a speedy trial, to keeping his mouth shut concerning incriminating statements, etc.  Entering a guilty plea can take 15 minutes; we ain’t interrupting the dozens of Arraignments to hear you bleat.  And once that’s done, the gig is up – the next step is Sentencing and assignment of a cellmate BFF (with benefits).  So at Arraignment, everyone pleads Not Guilty.  If they want to fall on the sword, a Guilty-Plea Hearing is set for a later time.

Oh, so you researched this case and you noticed that they’re going to trial?  Slow down, Chumly – this is my website – I tell the stories.  Yeah, so, um, they’re going to trial.  Why?  I’m guessing.  But here’s what rises to my attention (grabbed from a few different articles):

  • Shepard and Davidson-Shepard are charged with oral copulation of a minor, sodomy of a person younger than 18 and contributing to the delinquency of a minor. Shepard is also charged with possession and control of child pornography.
  • He faces a maximum sentence of five years in state prison, Davidson-Shepard a maximum of eight years and four months. [For this case. Why the difference?  The dude stopped blowing the kid in September, but his skank wife continued at it for a few more months.]
  • The Westminster Police Department and Orange County prosecutor asked additional victims or witnesses to come forward following the Shepards’ arrest.  “We’ve had more responses than usual in this case,” said Schroeder. “Several people have come forward, including possible new victims.”

With additional alleged victims – with multiple counts of sexual abuse on the table for each victim and each instance of abuse – the above estimates of five to eight years are garbage.  Even in a plea, I’d expect bidding to begin at 15 to 30 years.  They are also looking at lifetime registration as sex offenders.  They’re both over 60-years old.  So what’s to be lost by going to trial?  I don’t see a thing lost, but there’s maybe something to gain:  Key evidence can get tossed, and remember that it’s Southern California which couldn’t even convict OJ.

This case seems to be the quintessentially guilty client.  And therein lies the issue for defense counsel.  Counsel knows from the evidence that an alternative explanation – one that does not include deviant behavior – is highly unlikely.  Counsel knows that putting the client – either of them – on the stand is off the table.  If they claim innocence, that opens up a burlap sack full of onions.  So, what’s defense counsel to do?

Follow Clyde’s First Rule of Criminal Defense:  Your client is the US Constitution.  Nowhere in that document does it distinguish between “people” and “people that look really fricking guilty.”  The prosecution has to prove their case beyond a reasonable doubt.  I never assume a client is guilty – but in truth that doesn’t matter.  The client does not have to prove innocence.  The entire burden of proof rests on the prosecution.

But isn’t a sex crime worse than others?  Don’t they have a Law & Order series devoted to them?  No and yes, respectively.  The adjective – sex – is irrelevant.  It’s a crime.  The legislature has codified certain behaviors as crimes.  With any luck, those crimes so codified reflect the values of society.  But a crime against a person, or a crime against property, or homicide, or a sex or hate crime – so what?  The pretty boyz in the state capitol can legislate all day long.  It is still up to the prosecutor to prove it.  I’ll defend a person accused of skinning cats.  That’s not a cop out to earn money.  That’s a love of the Constitution.

So where does this Lawsuit of the Day take another turn?  The alleged victim has sued – for $2 million – the defendants and the school district.  On the latter, you are free to substitute “the nearest available deep pocket.”  He claims, in part, that he’s an alcoholic now because of the liquor he was given in the lead up to The Full Lewinski activities.  Smile … I don’t do civil litigation for a reason.  Enough said.

Would I take this criminal-defense case?  Absolutely.  No hesitation.  If the prosecution is allowed to rush to judgment on people that look guilty, then they can ruin each and every life in America on a whim.  That ain’t happening.

Could I win?  Now we’re outside my knowledge of the case.  All I have is the reported materials – and those are all from either the alleged victim or the mainstream media.  The former is biased; the latter clueless.  But Gerry Spence once famously got acquitted a woman from a homicide charge.  A video camera showed her pointing a gun across a wide stream.  The gun discharged – on camera complete with puff of smoke.  A person on the other side dropped like a stone.  Dead from a gun shot wound.  Acquitted.  Not guilty.  He’s my hero.

No case is out of reach.

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About Clyde

Clyde is the lead attorney in the firm. Licensed to practice in 1993, he's also taught Constitutional and Criminal Law for several years at a private university, primarily at the Master's level.

View all posts by Clyde

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