Mitch S. - Trial Victories - Gary Wenkle Smith, Attorney at Law

Mitch S. was in his fifties, with no criminal history, had a great job, a beautiful home which he owned, and thought life was pretty good when he married his wife, a woman with several grown children, and a couple of grandchildren.

Shortly after their whirlwind romance resulted in marriage, his wife started inviting her children to stay with them. At first, Mitch did not mind. However, as time went on, he realized that her children were feeding off his earnings, and were wrecking his home. He put his foot down, so-to-speak, and told his wife that her children and grandchildren were no longer welcome. She convinced him to allow her granddaughter to stay one more time.

When Mitch returned home from work a couple of days after the girl had come to visit, he was arrested and charged with molesting the girl. His wife immediately got a restraining order to keep him from his home, and initiated divorce proceedings, claiming half his estate as her share of community property.

Mitch was able to post bail, but could not go to his home, even to get his clothing and other personal items. In the interim, his wife had moved some of her adult children back into the home.

When I got the case, I noted a vague reference to some kind of CPS involvement with the girl on two prior occasions. I subpoenaed the reports from both San Bernardino and Los Angeles counties. Getting compliance from Los Angeles County is very time consuming, as there are so many cases, and their storage procedures are a bit confusing. So, as we proceed toward a trial date, the only response we got was from San Bernardino County. It was sent to the Court in Murrieta, and the Judge said he would authorize the release of those documents. The prosecutor offered to copy the file and provide me with a copy. I did not know her, and agreed to that procedure. Trial was about thirty days away, and I began calling and emailing the prosecutor regularly in order to get the documents. She did not respond. Finally, after leaving a rather scathing message with the receptionist, she called and told me that the documents had been in the "discovery bin" for a while, and that I would have to come to Murrieta and pay for them. It is a policy in Riverside County that defendants have to pay for the discovery that will be used against them. Although this procedure is contrary to an advisory opinion of the Attorney General, Riverside still enforces this procedure. I asked the prosecutor to fax me the documents. She refused. I asked her whether there was anything helpful to the defense in those documents. She said there was not.

When I did finally get the report, it was evidence of a false report of child abuse by Mitch's step granddaughter. She had reported that her mother had stripped her of her clothing, beat her with the buckle end of a belt all weekend long, then locked her out of the house without her clothing. When confronted by a follow-up CPS worker, the girl recanted her story, claiming that she had never said any such thing.

We had an evidentiary hearing about the report, and the girl testified that she did not recall that incident. She said it was too long ago--less than two years past. Her grandmother, Mitch's wife, testified that she knew about the report, and that the girl had told her that she made up the story because she was mad at her mother. Obviously, the judge ruled that the report could come in at trial. I was fortunate enough to have found the CPS worker who took the second report. My investigator found her within a day of searching. Had we waited much longer to receive that discovery from the prosecutor, we probably would have been too late--a condition upon which the prosecutor was probably relying.

At trial, I cross-examined the girl about her claim of molesting. Her story changed several times. I asked her about the false report. She got hostile. She finally admitted that she had made up the story because she was mad at her mother. She denied lying about Mitch. The prosecutor continued by calling Mitch's wife, who was now in a wheel chair, and had to be helped to the witness stand.

On cross-examination, she took a great deal of time answering my questions. Evidence Code, section 780 permits cross-examination of a witness about his/her motives and/or bias. I got to ask about the divorce, the restraining order, and the disputes about her children moving in and living off of Mitch's income. During cross, she took several minutes to answer some of my questions. I had never seen anything like it, and the Judge finally ordered her to answer. She still took her time.

The jury acquitted Mitch very quickly.

Gary Wenkle Smith Attorney at Law
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Mitch S.
Mitch S. was in his fifties, with no criminal history, had a great job, a beautiful home which he owned, and thought life was pretty good when he married his wife, a woman with several grown children, and a couple of grandchildren. Shortly after their whirlwind romance resulted in marriage, his wife started inviting her children to stay with them. At first, Mitch did not mind. However, as time went on, he realized that her children were feeding off his earnings, and were wrecking his home. He put his foot down, so-to-speak, and told his wife that her children and grandchildren were no longer welcome. She convinced him to allow her granddaughter to stay one more time. When Mitch returned home from work a couple of days after the girl had come to visit, he was arrested and charged with molesting the girl. His wife immediately got a restraining order to keep him from his home, and initiated divorce proceedings, claiming half his estate as her share of community property. Mitch was able to post bail, but could not go to his home, even to get his clothing and other personal items. In the interim, his wife had moved some of her adult children back into the home. When I got the case, I noted a vague reference to some kind of CPS involvement with the girl on two prior occasions. I subpoenaed the reports from both San Bernardino and Los Angeles counties. Getting compliance from Los Angeles County is very time consuming, as there are so many cases, and their storage procedures are a bit confusing. So, as we proceed toward a trial date, the only response we got was from San Bernardino County. It was sent to the Court in Murrieta, and the Judge said he would authorize the release of those documents. The prosecutor offered to copy the file and provide me with a copy. I did not know her, and agreed to that procedure. Trial was about thirty days away, and I began calling and emailing the prosecutor regularly in order to get the documents. She did not respond. Finally, after leaving a rather scathing message with the receptionist, she called and told me that the documents had been in the "discovery bin" for a while, and that I would have to come to Murrieta and pay for them. It is a policy in Riverside County that defendants have to pay for the discovery that will be used against them. Although this procedure is contrary to an advisory opinion of the Attorney General, Riverside still enforces this procedure. I asked the prosecutor to fax me the documents. She refused. I asked her whether there was anything helpful to the defense in those documents. She said there was not. When I did finally get the report, it was evidence of a false report of child abuse by Mitch's step granddaughter. She had reported that her mother had stripped her of her clothing, beat her with the buckle end of a belt all weekend long, then locked her out of the house without her clothing. When confronted by a follow-up CPS worker, the girl recanted her story, claiming that she had never said any such thing. We had an evidentiary hearing about the report, and the girl testified that she did not recall that incident. She said it was too long ago--less than two years past. Her grandmother, Mitch's wife, testified that she knew about the report, and that the girl had told her that she made up the story because she was mad at her mother. Obviously, the judge ruled that the report could come in at trial. I was fortunate enough to have found the CPS worker who took the second report. My investigator found her within a day of searching. Had we waited much longer to receive that discovery from the prosecutor, we probably would have been too late--a condition upon which the prosecutor was probably relying. At trial, I cross-examined the girl about her claim of molesting. Her story changed several times. I asked her about the false report. She got hostile. She finally admitted that she had made up the story because she was mad at her mother. She denied lying about Mitch. The prosecutor continued by calling Mitch's wife, who was now in a wheel chair, and had to be helped to the witness stand. On cross-examination, she took a great deal of time answering my questions. Evidence Code, section 780 permits cross-examination of a witness about his/her motives and/or bias. I got to ask about the divorce, the restraining order, and the disputes about her children moving in and living off of Mitch's income. During cross, she took several minutes to answer some of my questions. I had never seen anything like it, and the Judge finally ordered her to answer. She still took her time. The jury acquitted Mitch very quickly.