“Hi, today we’re here with Andrew Dósa, he’s a personal injury attorney in Alameda County and actually, all the surrounding counties in the Bay Area of California. And today, Andrew, I’d like you to comment on a recent article that’s actually a fairly heinous situation. It’s both criminal and civil, and it’s the civil aspect that I would like you to comment on now. It’s about that molestation case of that tennis coach in Marin County. And where it is currently at right now in terms of a civil issue, in terms of a civil lawsuit. The defendant, the person who instigated the crime, is doing 255 years in prison, but now it’s a situation where the victims in the crime are going after the institutions that the defendant was associated with. And there’s some specific questions in the articles that I read, that just doesn’t make any sense to me.
So just to give you some background: Back in 2010 he was charged, and then the jury was deadlocked. The judge declared a mistrial, and the prosecution did not refile. However, in another article, it talks about the fact that the jury was leaning toward the sexual battery allegations and convicting on that. So can you explain — obviously you’ve been practicing for — how many years now?”
“I’m approaching my 36th year. Next month will be 36 years.”
“So we’ve been to trial quite a bit. So can you tell us, what happens with that? If the jury was leaning towards a sexual battery conviction, what happened with the deadlock? I know it’s only conjecture, but if it’s leaning towards that, why did they let it go?”
“Well, what probably happened was, the prosecutor charged a couple of crimes. And the crimes were more serious than the lesser crimes that could have also been charged. For example, a sexual battery is less serious than a rape. A rape is technically a sexual battery, but it has a greater number of elements. So if they had charged him with rape, for example, they would have had to prove each of the elements of that crime. And if they weren’t able to meet their burden with say, just one element, but the other elements fit into a lesser crime like a sexual battery, then that might have been where the jury was inclined. They were wondering, why would the prosecutor not have included a lesser crime?”
“Well, actually, if he’s not charged with a lesser crime, they can’t convict on it, meaning the jury. Correct?”
“Well, it sort of depends on the circumstances. Would a lesser included crime be defended against by the defense? Well, they would be prepared to defend anything that raised the possibility of a crime. And in some circumstances, a prosecutor might be able to amend the complaint and add a different crime if there’s something new that’s found. Probably by the time of the trial, it would be a request by the prosecution that would be rejected by the judge, because they would have had time before that to amend the complaint and add something lesser. But that really is sort of the question: Does the defendant have a right to know exactly what he’s being charged with? Yes. If he’s not being charged with another crime, then why should he be defending against that type of a crime, when it’s not alleged in the complaint.
So there are just technical rules about when can there be an amendment. Could there be something lesser that’s now a target? Could he be recharged on the lesser count? Perhaps. So without really knowing all the facts, we can’t say for certain, but I think what I’ve described is likely what happened; that there was a lesser crime, it was not alleged against the defendant, and they found those elements compelling. But then again, they didn’t get instructions from the judge about that kind of a crime. So again, that might just be its own conjecture from a representative of the newspaper, like a journalist or a reporter, after their verdict.”
“So in that instance, 2010, it ended up with a hung jury, they didn’t refile. And subsequent to that time period, a number of other criminal actions occurred. So he’s now in custody and they are suing the U.S. Tennis Association. And in the court filings, they allege that the U.S. Tennis Association wrote him a letter saying, cease and desist. Because he was showing up at organizations after his membership had been revoked and he was actually physically removed from one event. But the civil complaint says that they didn’t notify, meaning — the U.S. Tennis Association didn’t notify its members of this individual in this situation, and the defendant was then able to privately coach some children and further criminal violations occurred. And failing to notify the membership of the U.S. Tennis Association is where obviously the civil complaint comes in.
But it seems like it’s a huge gray area that they took some steps, they sent him a cease and desist letter, they removed him from one event, and so is it their duty to inform all 70,000 members? I mean, of course that’s going to be adjudicated in a jury, or in a civil case, but it just seems like this may not be the only time something like this occurs. So do you notify every 70,000 members every time something is a potential issue? I’m trying to think of, where is the line? What’s the duty here?”
“All right. Well, without having all the facts, we would be offering maybe just some perspective, but I would look at it to an analogous situation. Imagine that you were an employer and your responsibility as that employer reaches to conduct of your employee, in some circumstances. For example, if your employee gets off work on a Friday evening at 5:00 and they don’t have a company car, they have no other connection to you, they are not doing anything for work, they are now solely on their own time. If that person goes to a bar and has too much to drink and gets into a fight and gets charged with a crime and harms somebody, you as an employer are not responsible because that person is not acting in the course and scope of their employment. So that’s the general standard that’s applicable for an employer when they’re trying to determine whether they’re liable for an employee’s conduct.
Let’s switch gears. Suppose that the employee is getting off work at 5:00 but he has a company car and he’s taking that company car home, because he has a company-related project on Saturday morning. And he then commits a crime by driving erratically. The question then is, is he in the course and scope of his employment, or is he acting under the authority of the employer because he’s got the company vehicle? And if he doesn’t normally have a company vehicle, but he gets it in this situation, to facilitate his work on behalf of the employer, the employer may be responsible if he goes to a bar then on his way home.
And so, it really depends on what are the facts. I mean, that just — I will just say that that’s question — course and scope of employment. Now if we switch that over to this situation, it’s probably not the same language in the statutes about responsibility. However, look at it this way: Let us suppose that the United States Tennis Association receive reports about this man’s improper behavior toward children — girls or boys, or whatever. And they then decide that they are going to revoke his license, because when he got licensed or certified, or whatever it was, he understood that he was complying with requirements that they had, which would include certain behavior and good conduct kinds of requirements.
If they found out that there were allegations, and maybe even that they had facts, it was more than just allegations coming to them. They did an investigation, found he’d done something wrong. If they took away his certification or licensing, or whatever it may be, and they failed to report other people who had regular contact with him, if they had given that information to those other entities or persons and that person would have then conducted themselves differently toward him or not allowed him access. Right? Then the child that got harmed when he conducted himself thereafter, after losing his certification, then is there a responsibility by the umbrella organization for his behavior? Because remember, that’s slightly different, right?
Then the employee scenario. This is a person who is acting at a sanctioned event, or where sanctioning by the United States Tennis Association is essential for someone to have access or to be participating in some way. What if he started giving lessons with the encouragement of this local organization and it would not have done that if it had been notified. So at some point, yes, there has to be some communication. What are the rules and regulations regarding that particular thing, I don’t know, but that, I think, frames the issues about prospect of liability. Does that make sense?”
“It does.”
“All right.”
“The further question on this: There is two lawsuits going on, same law firm. Two different lawsuits; two different defendants. One is the Tennis Association, and the other victim is going up against the high school in — correct my pronunciation — Tamalpais? Tamalpais. Thank you. So at Tamalpais High School. And so it’s obviously the school district. So the issue there is that it went on for quite some time with reprimands, with instructions, before he was actually fired. And the allegations are that the criminal violations continued throughout that entire time period. Now, it seems to me, as a layman, they’re a little more precarious situation, because they took steps all along, but they didn’t actually terminate his situation. You know, his involvement with the school. It just seems to me — especially, as a bail bondsman, to me, one of the major criminal violations that can occur is child abuse. And sexual child abuse. And that should be cut off, A/B, black and white, there is no ‘if’ and ‘when.’ And obviously investigated, but the risk to allow somebody to continue is huge. You know, in their employment. In their association with children. That just seems to me, completely wrong.”
“Well, there are a couple new wrinkles with these two civil lawsuits. And so the first I’ll mention is that one is against a private entity, probably a non-profit. And the second one is against the school district. Now, the school district scenario might be a little more complicated because perhaps he’s a member of the union. And so, he’s got rights and he’s got privileges as a member of the union. Or, as an employee of the school district, he has other procedural rights that are about an administrative and internal investigation or evaluation. So there may be different reasons why he got reprimanded. We don’t know if it was because of improper conduct.
Remember, we’re speculating, so we don’t really know for sure, but we would probably guess that there were no really terrible allegations against him. I mean, maybe he did impropriates like, he shouldn’t have been permitted — he wasn’t permitted to ride on the bus with the students, that he was supposed to be in a separate vehicle. Well, if he gets on the bus at some point, is that a violation? Was he written up for that? I don’t know, what are the rules and what are the regulations? If he is accused of something, remember, he does have procedural rights.
The procedural rights you have in a criminal case or in a civil case, are different than what you might have as an employee or an independent with a school district. So without really knowing much, we’re maybe just guesstimating what might have happened. But if there are minor infractions, do they add up to you being suspicious that he is committing crimes like a sexual battery, or something worse? It really just depends on what those claims are, and were they serious enough for the school district to put him on administrative leave before they resolved what to do? I would just say, as a defense attorney, while I would never be supportive of anyone doing a crime like that, that’s pretty obvious, I would be concerned that he was given the administrative procedural rights that he’s entitled to. And I will say, along with a lot of criminal cases, I have handled many, many restraining order cases, and I can tell you that it is not uncommon for false allegations to be raised in restraining order cases, so someone can get an advantage in that, appearing before a court. And if the person lies, and signs under penalty of perjury, and the judge is not sure, there may be political reasons why the judge is inclined to give the benefit of the doubt to the person who is making the claim, even if they had a burden that they didn’t technically beat, or meet, rather.
And I can just tell you also, having handled criminal defense cases, I have had clients who were accused of rape, and our investigation found that the allegations were false. And the person was simply just being vindictive and didn’t want him to be with anyone else, if that person couldn’t be with her. So we have to be really careful about what we read in the newspapers. I think our first inclination is this: What we read, we tend to believe. But there is a proverb in the Bible that says, ‘Every man, every person seems just, until his neighbor answers.’ And so that’s another way of saying, there are two sides to every story. And so the police reports are always going to be shaded most negatively, because they are hearing only allegations, and they are not getting interviews with the person who was accused, in most situations.
So I will tell you, when I’m picking a jury, I’m always asking the juror this question: Can you trust the process so that you don’t reach a conclusion when you just hear something? Wait till everything is there? Everyone says, ‘Yes,’ and no one does it. Our bias, inclination, we tilt toward hearing a terrible story and want to be protective of people who are vulnerable, but the people who are vulnerable don’t get protections if they didn’t get harmed, right? All children are vulnerable to a predatory adult. Fortunately, it’s a pretty rare circumstance, but false allegations are raised all the time. Unfortunately, it happens in no-fault divorce cases way too commonly, way too frequently. So you have to be mindful of both sides of the issue, and hearing both sides, and not reaching conclusions. They are just allegations and we know allegations don’t get you a conviction. Beyond reasonable doubt gets you a conviction.”
“This case raised to light a new rule change. Maybe if you can explain that a little bit. That prior to a rule change that came into effect on January 1st of this year, that a child who is a victim of a sexual abuse had until age 25 to be able to allege the situation; the crime itself. And after 25, the statute of limitations precluded him from doing that. And I think there was a rule change on January 1, that said — and I don’t know what the rule change said — but obviously this person in this particular lawsuit is 35 years old, so it’s 10 years after that date. So can you explain that a little bit?”
“Sure. The legislature has chosen to modify the laws to extend the statute of limitations on a crime. Let me given an example: Statute of limitations on the majority of misdemeanors is generally one year. So if a prosecutor or a police officer finds out about a crime, the prosecutor has one year from the date of the crime to bring charges against the defendant. And the premise — it’s a premise in both civil and criminal law — that stale claims offer a weaker claim. And at some point, we just have to believe that we’re better off not always worrying about what may have happened 50 years ago. I mean, that would be terrible if every time you and I committed a vandalism when we were teenagers, you know, now I’m 61, am I going to get charged with vandalism 50 plus years later? I mean, it’s pretty silly. And so that’s an extreme example, but with sex crimes, the numbers have changed. They’ve changed dramatically.
So at one point in the past, every crime had a specific statute of limitations and it was almost always set forth in the legislative scheme with statutes around the descriptors of a crime, and the elements that were listed. Then because there were legislators trying to be sympathetic to victims, they inspired the legislature to change at it. At one point it was six years, plus an alternative, which was based on when the person reached a majority. So that changed. And now, with the sex crimes, it’s almost anything goes. And so, an allegation can be raised.
So I may have something that’s a little sensitive, and without stating one side or the other, if we think about the hearing regarding Brett Kavanaugh, for the Supreme Court. The allegations were raised about what he did when he was in high school, and now he’s a 47, 50 year old man…”
“Thirty years.”
“And these were allegations not about a crime, because the statute of limitations has gone, but these are allegations now many, many years later, where everyone’s memory is profoundly fuzzy. And in fact, Brett Kavanaugh, if he were telling the truth, he has no memory of anything like this, and he also said he never acted like that. So assuming he never acted that way, and simply forget it because he was too intoxicated, he couldn’t have committed a crime. And the unfortunate person who felt that she was a victim, Dr. Ford, she may have been a victim, but her testimony and the story of the presentation of her facts, raised some questions in my mind.
The first go-around with her was that she came forward, presented her information to a legislator and then waited a week and was thinking about it. At the end of the week, she then said, ‘Yes, I am now certain it wasn’t somebody else, it was him.’ Which seems to me suspicious because she takes a week to figure it out, and she should have figured it out before she came forward. That’s my bias.
Now, that’s not to say that I think he should be a Supreme Court justice or anything, it’s just if I was defending him, I would be concerned that these allegations are brought in, and now his freedom and the rest of his life could be destroyed, and she doesn’t seem entirely clear what happened. How is it that in a week of time, she now gets crystal clear understanding about what happened?
So I’m just saying, to frame the issue, that’s a significant question. How reliable is something like that if the evidence is very, very stale and memories are all confused?”
“So the question is: How far back do you go?”
“Right. Exactly. So the more serious crimes, like murder, there is no statute of limitations, and that’s probably appropriate. Do we want to open it up to all sex crimes? I’m not going to comment on that. Our legislatures are the ones who are going to decide. But I just think we have to be very careful, especially if there is a very emotional case that comes up and it’s very dramatic and it captures the imagination or the curiosity of the public. There is a saying in the law that bad facts make bad law, and so when you have someone who’s got a case that’s really dramatic, but the facts are unclear or fuzzy, and a legislature takes that case and says, ‘I’m going to look after you, we’re going to do something about this, we’re going to make sure that this never happens, we’re going to get it in crime.’ Well, then what we have is an overcriminalization of all sorts of things, right?
I give you one example, not a sex crime, but years ago, there were a bunch of carjackings in the streets of Oakland and elsewhere. And so the legislators decided that they would create a new crime called a carjacking. And a carjacking is worse than a robbery. Well, you could commit a robbery by robbing someone of their car, right? Taking some personal property by force or fear — those are the two key elements. Permanently depriving, I guess, is a third, and then using force or fear. Well, so is a carjacking worse than a robbery where someone steals your car from you, or steals your wallet? Well, the legislature in California decided we’d now have carjacking and it’s now a worse crime than a robbery. Do we need it? No, we had a crime describing that behavior, it was called a robbery. But we tend to overcriminalize a lot of things in our culture.”
“Well, that may be changing, that may be changing today–“
“So for example, the societal approach to marijuana is shifting the landscape, at least as to those crimes, both for possession and for use, and for possessing a larger amount. Is it trafficking? Or is it just a weekend of heavy abuse of a narcotic?”
“Well, let’s get into that in another segment, and talk about that, because that’s actually something I do want to raise with you. I appreciate your time, talking about this issue. It’s now obviously in the civil court versus a criminal court, and we’ll keep in touch with you and see how it goes — the civil case — in the future, and have you comment further. Thank you very much.”
“All right, thank you, Ray, look forward to talking with you again.”
“Thank you.”
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Video – Attorney Andrew Dósa Explains Personal Injury Lawsuits Against Child Molester and Others
Home » video » Legal Commentary » Video – Attorney Andrew Dósa Explains Personal Injury Lawsuits Against Child Molester and Others
Video – Attorney Andrew Dósa Explains Personal Injury Lawsuits Against Child Molester and Others
Ray Hrdlicka – Host – Attorneys.Media
“Hi, today we’re here with Andrew Dósa, he’s a personal injury attorney in Alameda County and actually, all the surrounding counties in the Bay Area of California. And today, Andrew, I’d like you to comment on a recent article that’s actually a fairly heinous situation. It’s both criminal and civil, and it’s the civil aspect that I would like you to comment on now. It’s about that molestation case of that tennis coach in Marin County. And where it is currently at right now in terms of a civil issue, in terms of a civil lawsuit. The defendant, the person who instigated the crime, is doing 255 years in prison, but now it’s a situation where the victims in the crime are going after the institutions that the defendant was associated with. And there’s some specific questions in the articles that I read, that just doesn’t make any sense to me.
So just to give you some background: Back in 2010 he was charged, and then the jury was deadlocked. The judge declared a mistrial, and the prosecution did not refile. However, in another article, it talks about the fact that the jury was leaning toward the sexual battery allegations and convicting on that. So can you explain — obviously you’ve been practicing for — how many years now?”
Andrew Dósa – Personal Injury Attorney – Alameda County, CA
“I’m approaching my 36th year. Next month will be 36 years.”
Ray Hrdlicka – Host – Attorneys.Media
“So we’ve been to trial quite a bit. So can you tell us, what happens with that? If the jury was leaning towards a sexual battery conviction, what happened with the deadlock? I know it’s only conjecture, but if it’s leaning towards that, why did they let it go?”
Andrew Dósa – Personal Injury Attorney – Alameda County, CA
“Well, what probably happened was, the prosecutor charged a couple of crimes. And the crimes were more serious than the lesser crimes that could have also been charged. For example, a sexual battery is less serious than a rape. A rape is technically a sexual battery, but it has a greater number of elements. So if they had charged him with rape, for example, they would have had to prove each of the elements of that crime. And if they weren’t able to meet their burden with say, just one element, but the other elements fit into a lesser crime like a sexual battery, then that might have been where the jury was inclined. They were wondering, why would the prosecutor not have included a lesser crime?”
Ray Hrdlicka – Host – Attorneys.Media
“Well, actually, if he’s not charged with a lesser crime, they can’t convict on it, meaning the jury. Correct?”
Andrew Dósa – Personal Injury Attorney – Alameda County, CA
“Well, it sort of depends on the circumstances. Would a lesser included crime be defended against by the defense? Well, they would be prepared to defend anything that raised the possibility of a crime. And in some circumstances, a prosecutor might be able to amend the complaint and add a different crime if there’s something new that’s found. Probably by the time of the trial, it would be a request by the prosecution that would be rejected by the judge, because they would have had time before that to amend the complaint and add something lesser. But that really is sort of the question: Does the defendant have a right to know exactly what he’s being charged with? Yes. If he’s not being charged with another crime, then why should he be defending against that type of a crime, when it’s not alleged in the complaint.
So there are just technical rules about when can there be an amendment. Could there be something lesser that’s now a target? Could he be recharged on the lesser count? Perhaps. So without really knowing all the facts, we can’t say for certain, but I think what I’ve described is likely what happened; that there was a lesser crime, it was not alleged against the defendant, and they found those elements compelling. But then again, they didn’t get instructions from the judge about that kind of a crime. So again, that might just be its own conjecture from a representative of the newspaper, like a journalist or a reporter, after their verdict.”
Ray Hrdlicka – Host – Attorneys.Media
“So in that instance, 2010, it ended up with a hung jury, they didn’t refile. And subsequent to that time period, a number of other criminal actions occurred. So he’s now in custody and they are suing the U.S. Tennis Association. And in the court filings, they allege that the U.S. Tennis Association wrote him a letter saying, cease and desist. Because he was showing up at organizations after his membership had been revoked and he was actually physically removed from one event. But the civil complaint says that they didn’t notify, meaning — the U.S. Tennis Association didn’t notify its members of this individual in this situation, and the defendant was then able to privately coach some children and further criminal violations occurred. And failing to notify the membership of the U.S. Tennis Association is where obviously the civil complaint comes in.
But it seems like it’s a huge gray area that they took some steps, they sent him a cease and desist letter, they removed him from one event, and so is it their duty to inform all 70,000 members? I mean, of course that’s going to be adjudicated in a jury, or in a civil case, but it just seems like this may not be the only time something like this occurs. So do you notify every 70,000 members every time something is a potential issue? I’m trying to think of, where is the line? What’s the duty here?”
Andrew Dósa – Personal Injury Attorney – Alameda County, CA
“All right. Well, without having all the facts, we would be offering maybe just some perspective, but I would look at it to an analogous situation. Imagine that you were an employer and your responsibility as that employer reaches to conduct of your employee, in some circumstances. For example, if your employee gets off work on a Friday evening at 5:00 and they don’t have a company car, they have no other connection to you, they are not doing anything for work, they are now solely on their own time. If that person goes to a bar and has too much to drink and gets into a fight and gets charged with a crime and harms somebody, you as an employer are not responsible because that person is not acting in the course and scope of their employment. So that’s the general standard that’s applicable for an employer when they’re trying to determine whether they’re liable for an employee’s conduct.
Let’s switch gears. Suppose that the employee is getting off work at 5:00 but he has a company car and he’s taking that company car home, because he has a company-related project on Saturday morning. And he then commits a crime by driving erratically. The question then is, is he in the course and scope of his employment, or is he acting under the authority of the employer because he’s got the company vehicle? And if he doesn’t normally have a company vehicle, but he gets it in this situation, to facilitate his work on behalf of the employer, the employer may be responsible if he goes to a bar then on his way home.
And so, it really depends on what are the facts. I mean, that just — I will just say that that’s question — course and scope of employment. Now if we switch that over to this situation, it’s probably not the same language in the statutes about responsibility. However, look at it this way: Let us suppose that the United States Tennis Association receive reports about this man’s improper behavior toward children — girls or boys, or whatever. And they then decide that they are going to revoke his license, because when he got licensed or certified, or whatever it was, he understood that he was complying with requirements that they had, which would include certain behavior and good conduct kinds of requirements.
If they found out that there were allegations, and maybe even that they had facts, it was more than just allegations coming to them. They did an investigation, found he’d done something wrong. If they took away his certification or licensing, or whatever it may be, and they failed to report other people who had regular contact with him, if they had given that information to those other entities or persons and that person would have then conducted themselves differently toward him or not allowed him access. Right? Then the child that got harmed when he conducted himself thereafter, after losing his certification, then is there a responsibility by the umbrella organization for his behavior? Because remember, that’s slightly different, right?
Then the employee scenario. This is a person who is acting at a sanctioned event, or where sanctioning by the United States Tennis Association is essential for someone to have access or to be participating in some way. What if he started giving lessons with the encouragement of this local organization and it would not have done that if it had been notified. So at some point, yes, there has to be some communication. What are the rules and regulations regarding that particular thing, I don’t know, but that, I think, frames the issues about prospect of liability. Does that make sense?”
Ray Hrdlicka – Host – Attorneys.Media
“It does.”
Andrew Dósa – Personal Injury Attorney – Alameda County, CA
“All right.”
Ray Hrdlicka – Host – Attorneys.Media
“The further question on this: There is two lawsuits going on, same law firm. Two different lawsuits; two different defendants. One is the Tennis Association, and the other victim is going up against the high school in — correct my pronunciation — Tamalpais? Tamalpais. Thank you. So at Tamalpais High School. And so it’s obviously the school district. So the issue there is that it went on for quite some time with reprimands, with instructions, before he was actually fired. And the allegations are that the criminal violations continued throughout that entire time period. Now, it seems to me, as a layman, they’re a little more precarious situation, because they took steps all along, but they didn’t actually terminate his situation. You know, his involvement with the school. It just seems to me — especially, as a bail bondsman, to me, one of the major criminal violations that can occur is child abuse. And sexual child abuse. And that should be cut off, A/B, black and white, there is no ‘if’ and ‘when.’ And obviously investigated, but the risk to allow somebody to continue is huge. You know, in their employment. In their association with children. That just seems to me, completely wrong.”
Andrew Dósa – Personal Injury Attorney – Alameda County, CA
“Well, there are a couple new wrinkles with these two civil lawsuits. And so the first I’ll mention is that one is against a private entity, probably a non-profit. And the second one is against the school district. Now, the school district scenario might be a little more complicated because perhaps he’s a member of the union. And so, he’s got rights and he’s got privileges as a member of the union. Or, as an employee of the school district, he has other procedural rights that are about an administrative and internal investigation or evaluation. So there may be different reasons why he got reprimanded. We don’t know if it was because of improper conduct.
Remember, we’re speculating, so we don’t really know for sure, but we would probably guess that there were no really terrible allegations against him. I mean, maybe he did impropriates like, he shouldn’t have been permitted — he wasn’t permitted to ride on the bus with the students, that he was supposed to be in a separate vehicle. Well, if he gets on the bus at some point, is that a violation? Was he written up for that? I don’t know, what are the rules and what are the regulations? If he is accused of something, remember, he does have procedural rights.
The procedural rights you have in a criminal case or in a civil case, are different than what you might have as an employee or an independent with a school district. So without really knowing much, we’re maybe just guesstimating what might have happened. But if there are minor infractions, do they add up to you being suspicious that he is committing crimes like a sexual battery, or something worse? It really just depends on what those claims are, and were they serious enough for the school district to put him on administrative leave before they resolved what to do? I would just say, as a defense attorney, while I would never be supportive of anyone doing a crime like that, that’s pretty obvious, I would be concerned that he was given the administrative procedural rights that he’s entitled to. And I will say, along with a lot of criminal cases, I have handled many, many restraining order cases, and I can tell you that it is not uncommon for false allegations to be raised in restraining order cases, so someone can get an advantage in that, appearing before a court. And if the person lies, and signs under penalty of perjury, and the judge is not sure, there may be political reasons why the judge is inclined to give the benefit of the doubt to the person who is making the claim, even if they had a burden that they didn’t technically beat, or meet, rather.
And I can just tell you also, having handled criminal defense cases, I have had clients who were accused of rape, and our investigation found that the allegations were false. And the person was simply just being vindictive and didn’t want him to be with anyone else, if that person couldn’t be with her. So we have to be really careful about what we read in the newspapers. I think our first inclination is this: What we read, we tend to believe. But there is a proverb in the Bible that says, ‘Every man, every person seems just, until his neighbor answers.’ And so that’s another way of saying, there are two sides to every story. And so the police reports are always going to be shaded most negatively, because they are hearing only allegations, and they are not getting interviews with the person who was accused, in most situations.
So I will tell you, when I’m picking a jury, I’m always asking the juror this question: Can you trust the process so that you don’t reach a conclusion when you just hear something? Wait till everything is there? Everyone says, ‘Yes,’ and no one does it. Our bias, inclination, we tilt toward hearing a terrible story and want to be protective of people who are vulnerable, but the people who are vulnerable don’t get protections if they didn’t get harmed, right? All children are vulnerable to a predatory adult. Fortunately, it’s a pretty rare circumstance, but false allegations are raised all the time. Unfortunately, it happens in no-fault divorce cases way too commonly, way too frequently. So you have to be mindful of both sides of the issue, and hearing both sides, and not reaching conclusions. They are just allegations and we know allegations don’t get you a conviction. Beyond reasonable doubt gets you a conviction.”
Ray Hrdlicka – Host – Attorneys.Media
“This case raised to light a new rule change. Maybe if you can explain that a little bit. That prior to a rule change that came into effect on January 1st of this year, that a child who is a victim of a sexual abuse had until age 25 to be able to allege the situation; the crime itself. And after 25, the statute of limitations precluded him from doing that. And I think there was a rule change on January 1, that said — and I don’t know what the rule change said — but obviously this person in this particular lawsuit is 35 years old, so it’s 10 years after that date. So can you explain that a little bit?”
Andrew Dósa – Personal Injury Attorney – Alameda County, CA
“Sure. The legislature has chosen to modify the laws to extend the statute of limitations on a crime. Let me given an example: Statute of limitations on the majority of misdemeanors is generally one year. So if a prosecutor or a police officer finds out about a crime, the prosecutor has one year from the date of the crime to bring charges against the defendant. And the premise — it’s a premise in both civil and criminal law — that stale claims offer a weaker claim. And at some point, we just have to believe that we’re better off not always worrying about what may have happened 50 years ago. I mean, that would be terrible if every time you and I committed a vandalism when we were teenagers, you know, now I’m 61, am I going to get charged with vandalism 50 plus years later? I mean, it’s pretty silly. And so that’s an extreme example, but with sex crimes, the numbers have changed. They’ve changed dramatically.
So at one point in the past, every crime had a specific statute of limitations and it was almost always set forth in the legislative scheme with statutes around the descriptors of a crime, and the elements that were listed. Then because there were legislators trying to be sympathetic to victims, they inspired the legislature to change at it. At one point it was six years, plus an alternative, which was based on when the person reached a majority. So that changed. And now, with the sex crimes, it’s almost anything goes. And so, an allegation can be raised.
So I may have something that’s a little sensitive, and without stating one side or the other, if we think about the hearing regarding Brett Kavanaugh, for the Supreme Court. The allegations were raised about what he did when he was in high school, and now he’s a 47, 50 year old man…”
Ray Hrdlicka – Host – Attorneys.Media
“Thirty years.”
Andrew Dósa – Personal Injury Attorney – Alameda County, CA
“And these were allegations not about a crime, because the statute of limitations has gone, but these are allegations now many, many years later, where everyone’s memory is profoundly fuzzy. And in fact, Brett Kavanaugh, if he were telling the truth, he has no memory of anything like this, and he also said he never acted like that. So assuming he never acted that way, and simply forget it because he was too intoxicated, he couldn’t have committed a crime. And the unfortunate person who felt that she was a victim, Dr. Ford, she may have been a victim, but her testimony and the story of the presentation of her facts, raised some questions in my mind.
The first go-around with her was that she came forward, presented her information to a legislator and then waited a week and was thinking about it. At the end of the week, she then said, ‘Yes, I am now certain it wasn’t somebody else, it was him.’ Which seems to me suspicious because she takes a week to figure it out, and she should have figured it out before she came forward. That’s my bias.
Now, that’s not to say that I think he should be a Supreme Court justice or anything, it’s just if I was defending him, I would be concerned that these allegations are brought in, and now his freedom and the rest of his life could be destroyed, and she doesn’t seem entirely clear what happened. How is it that in a week of time, she now gets crystal clear understanding about what happened?
So I’m just saying, to frame the issue, that’s a significant question. How reliable is something like that if the evidence is very, very stale and memories are all confused?”
Ray Hrdlicka – Host – Attorneys.Media
“So the question is: How far back do you go?”
Andrew Dósa – Personal Injury Attorney – Alameda County, CA
“Right. Exactly. So the more serious crimes, like murder, there is no statute of limitations, and that’s probably appropriate. Do we want to open it up to all sex crimes? I’m not going to comment on that. Our legislatures are the ones who are going to decide. But I just think we have to be very careful, especially if there is a very emotional case that comes up and it’s very dramatic and it captures the imagination or the curiosity of the public. There is a saying in the law that bad facts make bad law, and so when you have someone who’s got a case that’s really dramatic, but the facts are unclear or fuzzy, and a legislature takes that case and says, ‘I’m going to look after you, we’re going to do something about this, we’re going to make sure that this never happens, we’re going to get it in crime.’ Well, then what we have is an overcriminalization of all sorts of things, right?
I give you one example, not a sex crime, but years ago, there were a bunch of carjackings in the streets of Oakland and elsewhere. And so the legislators decided that they would create a new crime called a carjacking. And a carjacking is worse than a robbery. Well, you could commit a robbery by robbing someone of their car, right? Taking some personal property by force or fear — those are the two key elements. Permanently depriving, I guess, is a third, and then using force or fear. Well, so is a carjacking worse than a robbery where someone steals your car from you, or steals your wallet? Well, the legislature in California decided we’d now have carjacking and it’s now a worse crime than a robbery. Do we need it? No, we had a crime describing that behavior, it was called a robbery. But we tend to overcriminalize a lot of things in our culture.”
Ray Hrdlicka – Host – Attorneys.Media
“Well, that may be changing, that may be changing today–“
Andrew Dósa – Personal Injury Attorney – Alameda County, CA
“So for example, the societal approach to marijuana is shifting the landscape, at least as to those crimes, both for possession and for use, and for possessing a larger amount. Is it trafficking? Or is it just a weekend of heavy abuse of a narcotic?”
Ray Hrdlicka – Host – Attorneys.Media
“Well, let’s get into that in another segment, and talk about that, because that’s actually something I do want to raise with you. I appreciate your time, talking about this issue. It’s now obviously in the civil court versus a criminal court, and we’ll keep in touch with you and see how it goes — the civil case — in the future, and have you comment further. Thank you very much.”
Andrew Dósa – Personal Injury Attorney – Alameda County, CA
“All right, thank you, Ray, look forward to talking with you again.”
Ray Hrdlicka – Host – Attorneys.Media
“Thank you.”
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