How to Defend a Child Rapist, Kidnapper: Lawyers Tell All

They are men accused of unthinkable crimes: Kidnapping and molesting young children.

Though they haven't yet been tried before a judge and jury, registered sex offender George Richard Horner, suspected of abducting and raping a 6-year-old Arizona girl, and Michael Devlin, charged with kidnapping and possibly molesting two adolescent boys, have already been painted as monsters in the media and community.

Many believe they are guilty as charged for what police say they have done. Horner, 26, is accused of taking and raping a little girl, who turned up alive after vanishing for several hours.

Devlin, 41, has been nabbed for the disappearance of 13-year-old Ben Ownby, abducted earlier this month, and 15-year-old Shawn Hornbeck, whom Devlin allegedly kept in his house for four years. The boys may also have been molested, according to police and their parents.

Nevertheless, lawyers have to defend both suspects. But how?

If it turns out that there's a mountain of solid evidence against them, said one prominent defense attorney who's represented plenty of despised clients, it's best not to fight the facts.

"You have to acknowledge the things that can't really be disputed — like he did it," said Ron Kuby, the New York lawyer who defended Long Island Rail Road mass murderer Colin Ferguson and the so-called "blind sheikh," Sheikh Omar Abdel-Rahman, accused of inspiring the 1993 World Trade Center bombing.

"You try to mitigate the punishment and you try to get him some treatment," Kuby said. "You get people to understand that he needs treatment, he needs medical attention, he needs to be incapacitated.

"A good defense counsel can try to get Mr. Devlin some treatment in a secure facility with the hope that one day if cured he'll be able to walk free. That's probably the best you can hope for."

But it's a different matter if you believe your client is innocent of the specific crime he's accused of, according to Kuby — as he did with the sheikh when he represented him in the World Trade Center case.

"He was a hated figure, but I felt then and I feel now that he did not help plan the bombing of the World Trade Center," he said of Abdel-Rahman, who also went to trial for other plots but had different lawyers in those cases.

"The fact that your client is so hated becomes part of your defense: He is a natural scapegoat, he is naturally the person the government is going to pin this on."

It becomes easier to launch such a defense when the suspect has a credible story about why he couldn't have committed the crime in question, even if he has an unsavory — or worse, violent — record.

"Sometimes you have useful facts that point to your client's innocence: My client may be a paroled sex offender, but he has an alibi and he's being frank," said Kuby.

Whether that is the situation with Horner or Devlin isn't clear, though even at this early stage, it seems unlikely.

Members of Devlin's legal team, led by Michael Kielty and Ethan Corlija, know they've embarked on an uphill climb in defending him — especially when it comes to getting a fair trial.

"This case has gotten just a blitzkrieg of attention from the media," Kielty told reporters earlier this month. "If we do in fact try this case, there's no way we can get a fair trial in this county due to the amount of attention it's gotten."

Kielty and Corlija said they entered a not-guilty plea Jan. 18 on their client's behalf in part because they haven't yet been granted "discovery" by the court — the right to review all the evidence — and in part because the circuit judge they're dealing with doesn't have the authority or the jurisdiction to accept a guilty plea in a felony case.

Kielty hit on defense strategy No. 1 in outrage-inducing situations like Horner's and Devlin's: Hunting down neutral jurors is crucial should the case go to trial rather than end in a plea deal.

Sometimes, as Devlin's lawyers mentioned, finding an impartial jury pool is too difficult in the community where the crime took place. So the defense needs to fight hard for the trial to be moved to another town.

"One of the most important remedies that the law provides is a change of venue," said North Dakota defense attorney Robert G. Hoy, who represented registered sex offender Alfonso Rodriguez Jr., sentenced to death for kidnapping and killing 22-year-old college student Dru Sjodin of Minnesota. "You move the case to some other location that has not had pretrial publicity to the same extent."'

Hoy — who was appointed to represent Rodriguez but declined to comment on specifics of that case — said a one-size-fits-all approach to defending a notorious suspect doesn't exist.

"Every case is different, and every circumstance is different," he said. "Different lawyers use different means to try to avoid the prejudice to their client."

Kristine Burk, a partner with the California-based Criminal Defense Associates, which specializes in sex crimes, said one tactic she favors is to keep mum on details right from the start, even if the prosecution is leaking tidbits to the media.

"You want to try to lower the outrage and sometimes just by being quiet, the outrage does blow over," she said. "We don't want to fan the flames of community upset."

Sometimes, the prosecution wants to sway public opinion and try the case in the media, according to defense attorneys, and they have to try to counteract that. Other times, it's the defense squealing to the press — which happened excessively in the Scott Peterson double murder case, for example.

"Evidence should be left for the courtroom and not used to prejudice the prospective jury panel," Hoy said.

And that "evidence" may not be evidence at all. It could be hearsay, rumor or spin generated by one side or another. So bringing the actual facts to light is paramount in building a strong defense — even if, in a molestation case for instance, it means questioning whether the child accuser might not be telling the truth.

"You challenge the notion that children don't lie," Burk said. "I've had cases where children of all ages have lied. Or they get it wrong and pick the wrong guy out of a lineup … I want a jury to understand that just because my client has been accused doesn't mean he's guilty."

But that's a tricky line to walk.

"You never attack the victims," said Boston criminal defense attorney Robert A. George, who has represented a long list of characters during his career, including an array of accused cop killers like Ted Jeffrey Otsuki, who murdered four Boston police officers.

"One of the first things I think is, how did those kids get themselves in that situation? ... But that's not the way to try the case. You can't blame the victim, the victim's parents, the neighbors, anyone."

Instead, a lawyer has to incite sympathy and a sense of duty within jurors.

"You have to try to connect with the jury on a level in the courtroom to make them realize this case is just like any other case and they have to judge it fairly," said George, who just defended Christopher McCowen, the man convicted of killing fashion writer Christa Worthington on Cape Cod, Mass.

"They have to judge the guy like he was someone they cared about. They treat him like they would want a member of their family treated."

Even when there's an admittance of guilt, all is not necessarily lost, especially if a jury decides that the confession has been forced.

"Sometimes they're not recorded by the police, so you have to start with the question of whether or not the confession actually happened," said Burk. "I've had cases where jurors did not believe the confession was a true confession."

FOX News Senior Judicial Analyst Andrew Napolitano — a former New Jersey Superior Court Judge and now a private practice attorney — said poking holes in a confession is part of the overall tactic of rattling the prosecution's case. He listed the circumstances in which the lawfulness of evidence can be challenged.

"Did he make any admissions before they told him he didn't have to speak to them? If he says, 'I want a lawyer 'and they don't get him one, they can be held responsible. If they kick the hell out of him, anything he gave can't be used," Napolitano said.

And if the defense can prove that any of the evidence was obtained without a search warrant, that's another way to toss information before a jury sees it.

A defense team can also try to show that the children ran away from home voluntarily and the suspects provided them with refuge. In other words, cast a reasonable doubt in jurors' minds that a crime was actually committed.

And there's always the insanity defense — although it can be extremely difficult to convince jurors to buy such an argument. Legal insanity can be almost impossible to prove, especially in certain states.

Trying to excuse someone who molests or abuses a child by arguing that that person was himself molested or abused as a child isn't a good plan of attack, according to defense attorneys, but such evidence can be used to support a claim of mental instability or secure a lighter sentence.

"You look into Mr. Devlin's background — you probably find he was a horrendous abuse victim himself," speculated Kuby. "People don't do this to young boys unless they have had serious abuse done to them. Yes, this man is now a victimizer, but he was also a victim ... As a result he needs to be treated and confined [to a mental institution]."

But such a defense might not work in Devlin's case, at least. Thus far, no details have emerged about abuse by his adoptive parents who raised him or in his childhood, and reports of a stable family life have come out instead.

If all else fails — the evidence is overwhelmingly against a defendant and the insanity defense is deemed too much of a longshot — the best thing to do might be to avoid having going to trial and strike a plea deal instead, defense attorneys said.

No matter how much a suspect is vilified by the police, the prosecution and the press, he or she still has constitutional rights afforded by the American justice system: He is innocent until proven guilty, he has the right to a lawyer (who will be appointed if he can't afford one) and he has the right to a fair trial.

But for all the strategies the defense might use in order to make sure those rights are honored, in the end, most trials are won or lost not because of legal wizardry but because of cold, hard facts.

"In the Court TV world, we have this notion that a trial is like a sporting contest: As long as your team is better than the other team, you're going to win," Kuby said. "That's not true. In 99.9 percent of cases, the outcome is dictated by the evidence — not the skill of a lawyer."