Understanding the Decapitated Case: An Interview with Criminal Defense Attorney Jeffrey Einhorn

Jeffrey Einhorn is a criminal defense lawyer and a partner at the New York City Law Offices of Jeffrey Lichtman, where he has worked for ten years. The firm specializes in high-profile federal criminal defense cases, with past and current clients including El Chapo, John Gotti, Jr., Fat Joe, and The Game. He has represented defendants charged with both white collar and non-white collar crimes throughout the United States in both trials and appeals.

To better understand what’s at stake in the Decapitated trial and how the case may unfold in the coming weeks and months, we caught up by phone with Einhorn, who has personally worked on both kidnapping and rape cases in the past. Topics we discussed include:

• the nature of the charges Decapitated are facing
• the potential length of sentences if they’re convicted
• how the band’s status as Polish nationals will or will not impact the case
• what the prosecution will need to prove in order to get a conviction
• what the defense will need to prove in order to set the band members free
• the possibility of a plea bargain
• the future of the band members after the case (and potential prison sentence) is over

Read our chat below for in-depth look into the legal matters surrounding the case.

Why are Decapitated being held in Los Angeles, and when will they be extradited back to Washington?

This is a state prosecution – not federal, and so the laws of both California and Washington dictate the extradition of Decapitated. In most states, there is a 30-day window for the requesting state to retrieve the individual or individuals who have been charged with a crime. The state will hold someone for 30 days, and if they’re not picked up by then, they will be released. I don’t know if that’s the case for California or Washington, but it doesn’t matter because in this situation no one is going to let this one fall through the cracks. This is a major case with allegations of violence.

What charges are Decapitated facing?

First degree kidnapping, an A felony. It’s the highest degree felony in Washington. It’s a violent crime, and it’s one of the most severe violent crimes.

How is first degree kidnapping defined?

In Washington, first degree kidnapping is intentional abduction with the intent to either facilitate the commission of a felony — here that would be the rape — or to inflict bodily injury or emotional distress. Either of those two would qualify as far as the prosecution is concerned.

So the kidnapping is kind of the precursor to the rape charge in this case?

Frequently in extradition cases, prosecutors will use one charge as a placeholder to get the process started, before superseding the charging instrument with additional charges. Don’t be fooled, first degree kidnapping is about as serious as charges come in Washington, absent intentional murder.

Is there a chance that they’re convicted of one of those things but not the other?

Yes. I haven’t seen the paperwork in this case, but if the defendants were separately charged with kidnapping and rape, then certainly it’s possible that they could be convicted of rape, but not kidnapping.

What sentence are the members of Decapitating facing if convicted?

Statutorily, the maximum sentence is 20 years to life imprisonment. Then, with the Washington sentencing guidelines, the range where they would normally fall would typically be 51 to 68 months, but because this was a sexually motivated crime, it could be bumped up to 75 to 92 months. That doesn’t mean they will receive a sentence in that range, but the sentencing guidelines are a good starting point for determining what your client is actually facing.

On top of that, if they’re convicted of one of these charges, there’s a possibility they’ll be listed in a sex offender registry for the rest of their lives. These guys are never going to be able to come back to the United States if they’re convicted. Even if they’re not convicted, they’re going to have a heck of a time coming back here.

Does their status as Polish nationals affect the way that this case will be handled at all?

If it was a lighter case, the fact that they were aliens could be factored into any kind of disposition if there was going to be a plea in the case. Because of the nature of these charges, it really doesn’t. The only thing of note is that if they’re convicted and sentenced, they will do their time in the United States and then they’ll be immediately extradited back home to Poland.

Is there any chance the Polish government or consulate or a diplomat would step in and get involved?

Usually in cases where you have violent acts, the foreign countries are loathe to become involved. That being said, I don’t know who their attorney is in Washington; I don’t know this law group that they’ve hired. If they’re able to gather exculpatory evidence and show that one of these women is lying, they may be able to convince a Polish government official to lobby on their behalf. I don’t know how powerful that would even be, though; maybe a few years ago it would be easier to tell you what would happen in that kind of situation, but with the Trump administration it’s very difficult to say that some foreign national contacting a state office is going to have any effect on anything. Things are so disconnected.

How will the state of Washington go about making their case?

The state’s job is a lot easier than the defense attorney’s job. They’re basically going to gather as much forensic evidence as they possibly can to corroborate the story of these two women. First of all, they have to make sure that they are telling the same story, and then they have to get physical evidence to match up with their story. You take the two together, and you have a very powerful case. They’ll use any type of video footage that they can locate, and if in fact there were calls made, they’ll get call records. If there were text messages, they’ll subpoena text message records. I’m sure they have in possession the womens’ phones and that they’ve searched those phones. If there’s any indication on one of those phones anywhere that those women did not want to be there at that time, then the members of the band are going to have a very, very difficult time moving forward.

At this early stage, nobody knows what the evidence is aside from what’s come out in the press in bits and pieces. It’s hard to say. Even with the stuff out there, nobody knows whether it’s true or not. But, if there is a text message from one of these women frantically saying that they don’t want to be there — that they’re locked in the bathroom, that one is being assaulted and she fears that she’s next or anything like that — these people are going to have a problem unless they can show that these women have a strong motive to lie.

What other kinds of forensic evidence could be used?

DNA can be used. Pictures of injuries as well. Bruising can be very powerful evidence; bruising on the wrists, on the arms, in the vaginal area – anything indicative of resistance. I’m sure a rape kit has been done – the results of that could be telling and powerful.

How important is the physical evidence vs. the testimony of the two girls in helping to prove the prosecution’s case?

It’s hard to answer that question because it depends on the quality of the testimony. You have two accusers here instead of just one, so it puts less of a burden on the physical evidence. I have no doubt there will be some physical evidence if something did occur because the government will be able to find something and point to it – a scratch here, a mark there, a bruise there — and they’ll be able to say, “that’s where he held her down and that’s where he held her arm.” If the testimony of these two girls corroborates each other, if they are correlated, then certainly the quality of physical evidence that will be required will be less. Any time you have more witnesses, you need less physical evidence. It doesn’t mean that you need none, but the government will need to rely on it less. We don’t know what other witnesses even exist out there. Who knows what else the state has at this point? I’m sure that the government has additional witnesses and they’ve been interviewing every single person that interacted with the girls and the band that night.

What kind of case will the defendants need to present to prove their innocence?

Well, first of all, let’s not forget that the burden of proof is not on these defendants to show that they’re innocent. It’s on the state to show that they’re guilty.

That being said, if they’re looking to find a way out of this, they’re going to have to start coming up with some evidence quickly because the defense has already made claims that they are completely innocent of this. They’re going to have to come up with a way to show that these women willingly got onto the bus and willingly stayed on the bus. One of the ways to do it is with phone records to show that they weren’t texting madly saying “these people are coming after us. They’ve locked us in the bathroom.” My understanding is that there are some text messages with either a sister or friend of one of the girls. That’s certainly one of the ways to do it. Any kind of surveillance footage would be helpful. Anything that would show that they willingly stayed on the bus. Was there a driver on the bus? It couldn’t have been just the four band members on the bus at that point. There had to have been a driver or a security guard. They’re not nobodies. If someone was asleep in the cab, don’t you think that maybe he would hear screaming if these girls wanted to get out? They claimed that they were screaming and crying.

But it certainly strikes me as possible that they could feel threatened and scared without screaming and crying.

Not a doubt. No doubt whatsoever. One of the first things I’d do though, if I was the lawyer, I’d be going around and locking in every single one of these witnesses to get their stories straight. Either by affidavit or having these witnesses sit down and agree to be recorded to get their stories on tape and then work from there. Another thing is to start digging into the histories of these women. Who knows if they’ve made claims like this before?

If the women have made similar claims in the past, is that legally admissible in this case?

I don’t know Washington law. If they made a prior similar claim, it can be difficult. There is something called “rape shield laws.” They prevent defense attorneys like me from taking the past sexual experiences of a victim and putting them out before a jury. If someone has previously made a similar claim that’s been disavowed somehow or disclaimed somehow, certainly that would go to their credibility. It’s the defense attorney’s job, at this point, to destroy these girls’ credibility because you have these two accusers who are corroborating each other.

It’s he said vs. she said except you’ve got a lot more shes than you usually do in this situation. You have two women and you have a jury who is going to be predisposed to questioning the integrity of a group of metalheads (the band members). They’re at, I would say, a significantly worse position than a normal defendant would be. The fact that they’re Polish, I don’t know if that really plays one way or the other, but I don’t think it mitigates the situation here.

How long would it typically take for a case like this to play out in the courts?

It really depends on several different factors, one being if the case goes to trial or ends in a plea bargain. I don’t know what’s going to happen here: it could be six months, it could be eight, or it could be a year and a half.

What are the chances this case ends in a plea bargain?

The plea rate for New York is over 90%. For federal criminal cases in the Southern and Eastern Districts of New York it’s as high as 97%. It’s very, very high. Most cases end in a guilty plea of some type, [which would make the trial shorter]. I don’t know what the plea rate is in the state of Washington, but I have no doubt that it is north of 90%.

Most criminal cases end in a guilty plea, you can say that very easily. The vast majority of all criminal cases, state or federal throughout the United States of America, end in a guilty plea of some type. A plea will typically reduce the sentence. It doesn’t necessarily mean that they would plead guilty to a different charge, but they would be accepting responsibility without having to give the state the trouble of proving the defendants’ guilt at trial, and they would get credit for that.

Good attorneys can do amazing things. Having a guilty plea doesn’t mean a loss for the case. If the prosecution has bad evidence, and the defense is able to negotiate by finding issues with the girls by showing that they’re lying on any number of issues – or if they shouldn’t be believed for some reason — they may be able to negotiate a favorable plea with a much, much lower sentence.

It also possible that a plea to second degree kidnapping could be negotiated. It’s a much better charge. Second degree kidnapping is a B felony in Washington, and the standard range of punishment is six to 12 months. A maximum of ten years. So if the defense can show that they didn’t hold the victim for ransom, which they didn’t, and they didn’t inflict injury but that they were just holding them, then they can do much better. There are many different ways to negotiate a much more favorable plea.

Now, in any of those situations, these guys are still getting deported, but they’re going to spend less time in prison. Basically the job right now of this law firm is to find issues with the womens’ testimony. They’re going to have to find either a motive to lie, or they’re going to have to find inconsistencies within the actual testimony itself.

In your experience in rape cases specifically, do you expect a plea and an admission of guilt?

I’d only be expecting a plea because the guilty plea rate is just so high across the nation that every attorney knows it’s a more-likely-than-not result. It doesn’t mean an unfavorable plea. I will tell you that prosecutors get things wrong. They do. You need good attorneys. We had a case just two weeks ago where a young man was charged with manslaughter, and we got the manslaughter charge dismissed because the cop lied in the grand jury. There are a couple of lower charges still pending, and I don’t know what’s going to happen with those lower charges, but my point is only that you can knock a lot of this stuff out. You can do a lot of damage to the government’s cases and still end up with a guilty plea. So by saying that I expect there to be a guilty plea, it’s only based on the statistics we know throughout the United States of America, but it doesn’t mean the band will do badly in this case.

You can read more about Jeffrey Einhorn and his qualifications at the official website for The Law Offices of Jeffrey Lichtman.