Unwinnable Criminal Defense Cases

There are criminal cases where winning at the guilt-innocence phase is almost impossible. This is one of them, and I'm blogging it mostly for future reference as an example of such a case.

PHOENIX (AP) — A long-term care facility in Arizona where an incapacitated woman was raped and later gave birth announced Thursday that it would shut down operations. 

. . .

Authorities have charged Nathan Sutherland, a former licensed nurse, with sexually assaulting the 29-year-old victim. They determined his DNA matched a sample taken from the newborn boy.

Sutherland, 36, pleaded not guilty earlier this week to sexual assault and vulnerable adult abuse.

There is basically a 0% chance of showing consent in the case of a woman who has been in a coma for many years as attested by many years of medical records entered by myriad physicians and nurses and by family members, most of whom are available to testify. There is basically a 0% chance of not being able to prove the identity of the perpetrator in the face of a DNA test match with someone who worked at the facility and had access to the victim. There is basically a 0% chance that a woman in a coma will not count as a "vulnerable adult" under the law, or that having sex with her without her consent will not constitute "abuse."

To be clear, I'm not criticizing the criminal defense attorney for entering a not guilty plea while negotiations go on between prosecutors and the criminal defense attorney over an appropriate sentence for the defendant. Procedurally, this s a sensible choice, and if the defendant wants to plead not guilty, he is entitled to do so, no matter how overwhelming the evidence may be. But, this is one case where the prospects for being acquitted are basically zero. The only way the defendant could avoid a conviction is by dying before a trial is held, causing the criminal case to be moot and be dismissed.

One expects that the criminal defense attorney knows that fact and will focus his or her efforts of any possible means to mitigate a harsh sentencing decision (something that is a particularly high risk when the case for guilt is so absolutely clear). But, even that is an uphill battle given that national outrage that this case has generated.