03 December 2012
Boulder, CO -- The scary part of this story is how easily it could happen to any one of us. Steven and Michelle Gesse thought that the small dinner party they hosted on the night of April 5, 2009, would be just that: an informal, pleasant gathering of neighbors over good food and good wine. Instead, it turned out to be the beginning of a nightmarish spiral into a confusing and frightening justice system that in practice, if not in theory, considers you to be guilty until proven innocent.
“During dinner that night, my husband, Steven, made an offhand comment that offended one of our guests,” recalls Michelle Gesse, author of the new book Bogus Allegations: The Injustice of Guilty Until Proven Innocent (Johnson Books, March 2012, ISBN: 978-1-55566-450-3, $17.95). “We were not even aware that she was offended since the remainder of the evening passed pleasantly. But what took place later that night changed the course of our lives forever. Never, in a million years, could we have imagined it could happen to us.”
Steven and Michelle were stunned and terrified when the neighbor’s son, who had also been a guest at the dinner party (and was an active Navy Seal), returned later in the evening threatening Steven and demanding an apology. Thinking, Okay, I’ll go over and apologize and be done with it, Steven went next door to try to smooth things over.
Later that night the Gesses were shocked when law enforcement officers arrived at their home in the middle of the night to arrest Steven and search their home. As it turned out, Michelle reports, the son of the offended guest had falsely accused Steven of threatening him with a gun.
Over the next seven months, she would watch helplessly as her innocent husband was treated by the justice system as a criminal whose guilt was already assumed.
“Steven’s name—but not his accuser’s!—was printed in all the local newspapers in connection with the case,” she describes. “We were in and out of court, and were forced to spend our retirement money to fund Steven’s defense. And as part of the conditions of his bail, Steven had to receive special permission to leave the state, and had to meet regularly with a drug counselor.
“He even had to appear for random breathalyzer tests,” she adds. “While it may not seem like a big deal on the surface, it meant he couldn’t even enjoy a glass of wine with dinner and had to be available for the test whenever required. That’s just how deeply this experience insinuated itself into the fabric of our day-to-day lives.”
On October 28, 2009, Steven Gesse was found not guilty of Felony Menacing and Prohibited Use of a Weapon by a jury. Yet being exonerated did not make up for the fact that he had been treated like a convicted felon. The unfairness of it all set Michelle Gesse on a mission to shine a spotlight on the injustices of the American justice system—and to make people aware of what to do in case they are ever falsely accused.
“Proving that Steven was innocent—innocent!—cost us, not Steven’s false accuser, so much time, stress, energy, and money,” Gesse says. “That’s not what I had pictured ‘justice’ to be before experience taught me otherwise. Now I know, among other things, that you need a committed lawyer and a healthy bank account to beat a completely bum rap.”
Of course, few people give much thought to what they should do (and not do) if they are falsely accused. But like the Gesses, prior to their ordeal, you too might have an “it’ll never happen to me” attitude. But the truth is, there’s no way to know for sure what curveballs life might have in store—and it’s better to be safe than sorry.
Read on for 12 lessons that Michelle Gesse has learned in the Criminal Justice School of Hard Knocks. Having this information beforehand might make a huge difference if you or a loved one is ever falsely accused of a crime.
Have an “arrest plan” in place (yes, it could happen to you). Generally, people don’t assume that their homes will catch fire. Statistically speaking, it’s not a likely occurrence. But most people still take out homeowner’s or renter’s insurance, just in case. Likewise, though you hope it’ll never happen, you teach your child to scream and run if accosted by a stranger. You’ve probably considered what you’d do if someone approached you in a dark parking lot. And depending on where you live, your family may have a wildfire, hurricane, tornado, or earthquake plan in place. In the same way, says Gesse, you should think through and be prepared for a possible arrest.
“None of us think something like this could happen to us, but it is possible that at some point in your life you or someone you love may be arrested,” she says. “It could be your spouse, your child, a relative, or a good friend. What would you do if this happened? Would you be forearmed with any strategy or knowledge, or would you be floundering, completely at the mercy of ‘the system’? Believe me, it’s a good idea to think about what you would do if you were confronted by the police at your own front door, or how you might respond if you received a phone call telling you that a loved one had been arrested. That disaster may have a higher probability than many of those for which you have prepared.”
Likewise, it is wise to have “the talk” with your kids beforehand. This particular “talk” should be about what they should do if they are ever arrested or interrogated by law enforcement officers, regardless of the reason.
Be the first to call 911. The person to call 911 is always going to be considered the victim, regardless of the circumstances. If you find yourself in any sort of threatening situation, whether it’s with a family member, friend, coworker, or complete stranger, don’t hesitate. Be the first to call 911. While it may not seem “right” or “fair,” the first person to call 911 is going to be regarded as the victim, regardless of the facts or the truth.
“Even though he was telling a blatant lie, Steven’s accuser was treated by law enforcement as the victim since they heard his version of the story first,” Gesse recalls. “As we learned, once you have been taken into custody, you have been classified as the perpetrator of the crime. The so-called victim will receive support from victims’ advocates, the press, law enforcement, the community, etc., while you and your family are on your own to clear your name. Trust me, being the first to pick up the phone can save you an unimaginable amount of stress, time, notoriety, and money.”
Everyone involved has the right to remain silent. Imagine the following scenario: Your spouse (or any loved one) has just been handcuffed and taken away from your home in a police car. You are out of your league with no idea what is going on, and you’re struggling with feelings of anxiety, panic, confusion, and fear. Meanwhile, other officers and detectives have remained at your residence. Your first instinct is to talk to them, to tell them the truth about what happened, and to prove to them that your spouse has done nothing wrong. Don’t.
“Even if you aren’t the person being accused of a crime, exercise your right to remain silent!” Gesse stresses. “Don’t talk to anyone without a lawyer present. I shouted that very warning at my husband as the police put him in the squad car, but it never occurred to me that I should follow my own advice as I sat at home with a deputy waiting for the search warrant to arrive. In court I was grilled by the prosecution about what I said and what I didn’t say. If Steven had been found guilty because of something I’d said, or a fact I hadn’t mentioned had put doubt into the jury’s minds, I would never have forgiven myself.”
Insist on a search warrant, even if you have nothing to hide. “Can we search the house?” If you know that you have not committed any wrongdoing and have nothing to hide, you may be tempted to answer this question with a “yes.” The more cooperative I am, the sooner this will be over, you reason. Maybe the officers will even see that I’m innocent, and my family will never be bothered again.
“Squelch the impulse to be open and helpful, and don’t allow anyone to search your house without a warrant,” Gesse instructs. “Insisting on the warrant was probably the smartest thing I did the night my husband was arrested. As I found out later, it can tell your lawyer what the police were looking for. And if the search wasn’t executed properly, having the warrant might make whatever was found ineligible to be introduced as evidence. Remember, it’s always best to have physical documentation when you’re dealing with the criminal justice system.”
Realize that the criminal justice system is hard on the innocent. If you have ever watched one of the many television shows or movies that’s based around the legal system, you might take it for granted that the law officers, investigators, and prosecutors are going to search for the truth and examine the evidence before prosecuting. According to Gesse, that’s Hollywood—reality looks very different.
“The criminal justice system in the U.S. is a ‘flow system,’” she explains. “By that, I mean that the system wants to dispose of as many cases as quickly as possible. They do this by negotiating plea bargains. A plea bargain is the quickest and least expensive way for them and for you to end the process. Accepting a plea bargain even to a lesser offense, however, may mean having a criminal record as well as having conditions imposed on you like alcohol testing, community service, or limits on travel. Would you be willing to do that if you knew you were innocent? My husband wasn’t willing to make that sort of deal (with my full support), and we ended up paying financially and emotionally for not playing the game the system’s way.”
Expect to be treated like you’re guilty. Again, what you see on TV and what happens in real life are two different things. As Gesse has pointed out, the criminal justice system is focused on prosecution and on garnering guilty verdicts, so don’t expect a full-scale Law and Order- or CSI-type investigation. Instead, expect to be prosecuted even if the facts and evidence don’t support a guilty verdict.
“Unless your case is extremely high-profile, it’s unlikely that the prosecutor will even review the case file until shortly before the trial,” Gesse says. “And the prosecutor will proceed even when the supposed victim indicates that he or she prefers to put an end to the proceeding. Meanwhile, you might be forced to live under court-ordered stipulations that resemble nothing so much as parole.
“For instance, Steven had to submit to random alcohol testing, had to meet with a drug counselor, couldn’t be in proximity to weapons, and couldn’t leave Colorado without special permission. Not to mention the fact that we were in and out of court and his name was in the newspaper, while the supposed ‘victim’ walked free in anonymity! After Steven was acquitted, we practically had to beg the newspaper to run a story announcing that he had been found innocent.”
Proving your innocence comes with a very high price tag. Since Steven Gesse did not take the plea bargain he was offered and instead maintained his innocence, he paid a very high price. Proceeding to trial doubled the Gesses’ legal expenses and made the process last twice as long. In contrast, the false accuser did not have to pay legal fees, and his transportation to and from the trial was covered. And the sad reality is that the Gesses had no recourse to either the individuals or the legal system that falsely accused them and prosecuted them even after Steven was found not guilty.
“We do not in any way regret the decision to proceed to trial,” Gesse confirms. “It was the right decision for us, but many families will not have either the financial or emotional resources to successfully undertake this course of action. You need to know the costs in advance before deciding to go ahead. Yes, I know, it seems incredibly unfair—even unbelievable—that an innocent person would have to spend thousands upon thousands of dollars to prove that he has done nothing illegal. But that’s reality.”
Getting a lawyer doesn’t imply guilt. (In fact, innocent people need the most help!) Chances are, you’ve seen a TV show in which someone being questioned by the police asks, “Do I need a lawyer?” And the questioner responds with something like, “If you’re innocent, why would you need a lawyer?” or, “Just tell the truth. If you have nothing to hide, you won’t need an attorney.” Yes, these television personas make it seem like getting representation implies guilt. But if you’re ever falsely accused of a crime in real life, you’ve never needed a lawyer more.
“In my opinion, the innocent need legal help even more than the guilty,” Gesse says. “Think about it this way: You wouldn’t travel to a dangerous foreign country without hiring a good guide. And for all intents and purposes, the legal justice system is a dangerous foreign country. As an innocent person, you have no idea what’s going on, what to expect, or how to handle the many obstacles that will be thrown in your path. You certainly aren’t equipped to represent yourself in court. So yes, you’ll definitely need the help of an experienced professional if you don’t want to end up serving time for a crime you didn’t commit.”
Don’t skimp on a lawyer. If you are falsely accused of a crime and decide to proceed to trial, don’t skimp on a lawyer. This is not the time to save money. If your finances are tight, shop at discount stores and give up steak and wine—but don’t look for bargain legal counsel.
“If you go to trial, you want the best lawyer you can afford…or perhaps one a tad more expensive than you can afford,” Gesse asserts. “Personally, I’d rather go into debt than go to jail for something I didn’t do. If you simply cannot afford a lawyer, public defenders are an option. I’ll put in the caveat that I’m by no means an expert, but my impression is that a public defender will try to dispose of your case by urging you to take a plea bargain offer. Public defenders are overworked and have a lot of cases, so again, they’re probably looking for the easiest and fastest ‘solution.’”
You’ll find out who your true friends are. If you are wrongfully accused of a crime, you’ll probably be surprised and saddened by the number of people in your life who don’t want to be involved. People whom you had considered to be friends may pull away, become distant, or even refuse to help. Unfortunately, many individuals may feel so awkward even approaching the topic that they avoid it, denying you the support you need so badly. Sadly other “friends” may assume that since you have been arrested, you are probably guilty.
About the Author:Michelle Gesse, author of "Bogus Allegations: The Injustice of Guilty Until Proven Innocent," is a native of Chicago, IL. She earned a BS in mathematics from the University of Illinois, Urbana-Champaign, and completed her MBA at the University of Chicago. She spent 15 years in banking, working for Northern Trust in Chicago and Chase Manhattan in New York. From 1992 to 2011, Michelle successfully owned and ran a manufacturing company in Boulder, CO. Michelle lives in Boulder, CO, with her husband, Steven. Before the incident described in Bogus Allegations, Michelle and Steven never thought that they would get involved in the criminal justice system. For more information, please visit www.michellegesse.com.
About the Book:Bogus Allegations: The Injustice of Guilty Until Proven Innocent (Johnson Books, March 2012, ISBN: 978-1-55566-450-3, $17.95) is available at bookstores nationwide, from major online booksellers, and at www.michellegesse.com.