After hearing testimony from FHP, the victim's father (who was also Gilbert's supervisor at FHP before he was terminated), the victim's mother, Assistant State Attorney Sarah Freeman (who initially handled the case before ASA Ryan Williams took it over last spring), and Counsel for the victim's family, William Jay, it became abundantly clear that Mr. Gilbert's attorney was throwing numerous allegations and constitutional issues against the wall, hoping something would stick.
Judge Marc Lubet, occasionally appearing exasperated with some of McShane's arguments, repeatedly tried to keep him focused on the issues he had raised in order to conduct the hearing in a methodical manner. Judge Lubet asked him approximately 6-8 times, "Tell me how your client's due process rights were violated." The reason he had to ask so often was because McShane never did provide an answer that "stuck."
The allegations of prosecutorial misconduct were based solely on the representations of the victim's mother, whom I will not name in order to protect the identity of the victim. McShane claimed that the State Attorney and FHP conspired to prevent a deposition in the civil injunction by telling the mother to dismiss the injunction - something to which McShane and Mr. Jay (Counsel for the victim and her mother) had both stipulated. Once the injunction was dismissed, there was no case to be deposed. At this point, Judge Lubet pointed out that Mr. McShane couldn't have it both ways (dismissing the injunction AND deposing the victim), to which he replied that he believed he could. At this point in time, the criminal case had not yet been filed.
It seemed odd to me throughout the hearing that the mother sat directly behind the defense table, her husband (the victim's father) sat in the last row on the same side, and the victim sat in the last row on the prosecution side of the courtroom.
When the mother took the stand, everything became clear as soon as she broke into tears after praising the defendant's 17-year career with FHP and tearfully telling him from the witness stand that she wished he had accepted the initial plea offer of 18 months probation. She complained to the Court that Mr. Gilbert was now facing the possibility of prison because the State's initial offer of probation, and a subsequent offer of 90 days jail, were now off the table because he had rejected them.
Remember, this is the man who texted her teenage daughter several hundred times in a sexually explicit manner!
She felt that it was not fair that the defendant might have to go to prison for his conduct with her daughter over the course of only 17 days. She minimized his actions by stressing that he never touched the teen. She indicated that the entire situation started when she filed for a civil injunction on behalf of her daughter because it was her husband's intent to have Gilbert transferred out of his unit.
Another spectator in the courtroom turned to me and stated "Appalling."
I would have to agree.
Mr. Williams confronted the mother after her lengthy diatribe about the unfairness of it all and remarked that she never once mentioned her daughter's well-being during her testimony. The mother then expressed a bit of relief that her husband had earlier left the courtroom and didn't hear what she had said. She then expressed anger at Mr. Williams' observation and proceeded to attack her daughter's character by telling the Court that she had tried to protect her child from dating the 24-yr old man with whom she was now living. The victim moved out of the home as soon as she turned 18 in August. Judge Lubet told her none of that was relevant and she stepped down.
Appalling. I don't think this woman will garner any support in a "Mother of the Year" contest.
Judge Lubet permitted Mr. McShane to submit what seemed to be reams of caselaw about the constitutional issues he believes are at issue (many of them dealt with drug cases) and asked him to be concise in his argument (it was already after 5:00pm at this point).
Judge Lubet was though. All defense motions were denied. He allowed the defense attorney to do what he felt was necessary to preserve the record for an appeal, and stressed that this case would not be granted any more continuances.
I think the defendant would have a good case for replacing his lawyer after today's performance.
Mr. Gilbert's trial is scheduled for to begin during the trial period starting Feburary 15, 2010.