CRIMINAL JURISDICTION

The Only Defense In Sexual Assault Cases Not Subject To Rebuttal Evidence, Keeping Extraneous Crimes, Wrongs, and Acts Out

By Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair

Writing in her book “The Cross-Examination of a Young Child in a Sexual Assault Case: Voice for the Defense” (Oct. 1999), Annabelle Hall said that jurors following a sexual assault trial involving a child raise the following questions:

• Why would a child lie about sexual abuse?
• How can a child know so much about sex if she has not been abused?
• Would a child lie about sexual abuse?
• Why would a child make the story up?

These questions clearly demonstrate why a defense attorney in a sexual assault case faces such a difficult task establishing a “fabrication” defense. A “fabrication” defense in a sexual assault case is premised on the theory that the victim has “made up” or deliberately lied about the sexual assault. As difficult as it may be to logically wrap the mind around this concept, reliable studies (including the U.S. Justice Department) have revealed that anywhere between 25 to 60 percent of all sexual assault allegations are false. Put simply, somewhere between one-quarter to one-half of the rape allegations leveled in this country are fabricated for one reason or another. Many involve child victims.

Why would a child lie about such a thing?

In Cross-Examination of Child Witnesses, presented at the 19th Annual Rusty Duncan Advanced Criminal Law Short Course in San Antonio, Texas (June 15-17, 2006), Houston criminal defense attorney Stanley G. Schneider and Dallas doctor Mark Blotcky partially answered this question:

“False allegations of sexual abuse are usually simply incorrect. They are initiated by parents or a third party, e.g., this occurs due to the hyper-vigilence [sic] of parents of young children after their parents have been sensitized by sensational news media coverage of sexual abuse scandals. Pediatricians and child mental health professionals by law also make reports to Child Protective Services of any ‘suspected’ child abuse without having to confirm its veracity. They may be acting perfunctorily and simply reporting abuse based upon a small amount of information provided by the mother, the child, or exhibited by the child’s physical or behavioral symptoms. I know clinicians who feel compelled to report even when they believe it’s highly improbable that abuse has occurred. They are practicing defensive medicine. The report itself may then become overly weighted “evidence,” as though there had been some real investigatory work done or an expert professional opinion rendered about the abuse, though the report is simply conforming to the law to report any suspected child abuse. Remember, very disturbed children, previously sexually abused children, bipolar children and others may exhibit eroticized behavior without being sexually abused. It is then easy to understand why a ‘third party’ makes a report.” (more…)

THE ACQUITTAL

John Floyd Secures Not Guilty After Jury Trial, Aggravated Sexual Assault of a Child younger than 14, 263rd District Court, Harris County, Case No. 1156699

A former Precinct 4 deputy accused of aggravated sexual assault of a child was found “not guilty” after three days of trial and six hours of jury deliberation. The State argued the defendant, in 2000, sexually assaulted an 11-year-old girl when he was a detention officer at the Harris County Juvenile Detention Center where the girl was detained.

After announcing their verdict, the jurors stated that they simply did not find the complaining witness’ testimony credible and accurate enough to convict the defendant for such a serious crime. The defense - led by John Floyd with the able assistance of co-counsel Chris Carlson and paralegal Billy Sinclair – presented the defense that the complaining witness’ sexual assault allegation was fabricated. This defense was supported by inconsistencies with other witness testimony and discrepancies in the prosecution’s evidence.

The prosecution supported its case with the 7-year delayed outcry testimony of the complaining witness and the testimony of a twice-convicted and currently jailed felon.

Bound by their oath to follow the law on the issue of “reasonable doubt,” jurors stated they simply could not attach any meaningful credibility to the prosecution’s case. In fact, one juror was so frustrated by the prosecution’s inept handling of the case that the juror posted a comment on the Houston Chronicle website that the prosecutor should have been jailed.

The not guilty verdict in this case follows a year of success for the John T. Floyd Law Firm in defending individuals falsely accused of sex offenses. Earlier this year, Mr. Floyd secured another not guilty, an acquittal by directed verdict, after a jury trial on charges of sexual assault in the 176th District Court of Harris County. Mr. Floyd also obtained a no-bill from a Harris County grand jury for an individual charged with sexual assault of a child in case number 111785 before the 184th District Court of Harris County, Texas. This was also a delayed outcry case. In August, Mr. Floyd obtained dismissals on two cases alleging indecency with a child, in cases 46527 and 46528, days before jury trial in the 400th District Court of Ft. Bend County, Texas. (more…)

Prosecutor Hands Jury Sour Grapes After Not Guilty Verdict

By Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair

The John T. Floyd Law Firm faced a recent difficult three-day trial in a Harris County courtroom. The District Attorney’s office had charged a defendant with aggravated sexual assault of a child. It was a classic delayed “outcry” case. The case was assigned to one of the very best prosecutors in sexual assault cases. She signaled early in the motion practice stage of the case that she would be a determined adversary willing to go to extraordinary lengths to secure a conviction against our client.

Faced with the natural bias against criminal defendants charged with such sexual offenses, the John T. Floyd Law Firm met the prosecutor’s frontal assault in the pre-trial process with fierce counter attacks. While our investigators located key witnesses and produced valuable documents and our paralegal pursued relentless legal research, the trial attorneys pursued discovery and formulated an aggressive “take no prisoners” fabrication defense. At trial, the defense attorneys focused on the primary objective: convince the jury that the prosecution’s case, from top to bottom, was not credible without opening the door to any damaging rebuttal evidence on the fabrication defense.

The jury got the case on a Wednesday morning at 10:30 a.m. By 11:30 a.m., and after the jury had requested to review a piece of evidence, it was evident that the prosecution had not secured its normal “quick” guilty verdict. The jury had questions. Questions meant doubt. Doubt meant the prosecution had not immediately closed the deal on guilt beyond a reasonable doubt. Twice more by 2:30 p.m. the jury asked to review portions of certain testimony. The prosecution team grew nervous. They fidgeted and engaged in “pass the time” conversations in the courtroom. Uncertain, hollow laughter emanated from their group discussions. Unconsciously, they got up and moved about the courtroom which had long emptied of the hustle and bustle of the routine guilty pleas entered earlier in the day. The “expert” child sexual assault prosecutor betrayed her obvious concern with defensive body language and constant need to get up and move about.

Then at 4:30 came the two rings of the bell signaling that the jury had reached a unanimous verdict. The defense team quickly assembled and moved back to the defense table with their client. They were cautiously optimistic. The trail signs indicated at a minimum a “hung jury” decision but now there was a real possibility of a “not guilty” verdict. They dared not speak the latter hope. Never tempt the hand of fate. Let fate chart its own course. Hope leads to raised expectations, and raised expectations can so easily crash against the sea wall like a violent incoming wave. (more…)

By Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair

If you were raped at age nine by your local YMCA counselor, do you think you would endure what is known in legal parlance as “future mental anguish?”

At least one Texas court of appeals did not think so: the Court of Appeals for the Fourth District of Texas.

The case originated in San Antonio. The local YMCA owns and operates a summer camp called Camp Flaming Arrow (CPA). The parents of a nine-year-old boy enrolled their son into CPA’s summer program. Beginning in 1998, CPA employed a counselor named Kenneth Trimble. In the Spring of 2000 YMCA learned that Trimble had been arrested for sexually molesting 20 children at CPA during his two-year employment. One of those was nine-year-old “Adam Adams” (a court-designated name). Trimble confessed that he had “sexually inappropriate contact” with young Adam. See: YMCA v. Adams, 220 S.W.3d 1, 2-3 (Tex.App.-San Antonio 2007). The court of appeals described that “sexually inappropriate contact” as follows:

“A. A. testified that one night he awoke screaming and Trimble went over to check on him but got into his bed and was bumping him. Both A. A. and Trimble were fully clothed. Apparently, this was the only incident occurring between A. A. and Trimble.” Id., at 3.

Adam’s parents sued the YMCA under the theory that its negligence in hiring, retaining, and supervising Trimble caused Adam’s injury. A civil jury returned a verdict with the following findings:

Trimble intentionally and knowingly caused serious mental impairment or injury to Adam;

YMCA’s negligence caused the injury;

Responsibility for the injury should be apportioned 95% to Trimble and 5% to YMCA; and

While Adam sustained no past mental anguish, he would probably sustain $500,000 in future mental anguish damages.

(more…)

“Role Playing” in Cybersex Conversations Could be a Legitimate Defense in § 2422(b) Internet Solicitation Cases

By:  Houston Criminal Defense Lawyer John Floyd and Mr. Billy Sinclair

18 U.S.C. § 2422(b) prohibits the use of a computer by an adult to send messages on the Internet to “persuade and entice” a person under 18 years of age to engage in sexual activity that constitutes a criminal offense.

On December 21, 2006 Dennis Joseph was convicted of violating § 2422(b) in the United States District Court for the Southern District of New York and sentenced to a term of 97 months in a federal prison. On September 9, 2008 the United States Court of Appeals, Second Circuit, reversed the conviction based on an erroneous instruction the trial judge gave to the jury. See: United States v. Joseph, ____ F.3d _____ (2nd Cir. 2008) [Slip Opinion No. 06-5911-CR]. The Second Circuit outlined the facts of the case as follows:

“Joseph is 40 years old, married, and has a six-year-old child. In August 2005, he was arrested for using the Internet to solicit a person he believed to be a minor to engage in sexual activity … After a seven-day trial in April 2006, a mistrial was declared when the jury was unable to reach a verdict.

“The evidence at the retrial included the following. In July, 2005, Joseph visited an Internet chat room called ‘I Love Older Men,’ where he initiated a conversation with an individual with the screen name ‘Teen2Hot4U,’ who purported to be a 13-year-old girl named ‘Lorie.’ ‘Teen2Hot4U’ was in fact Stephanie Good, a 55-year-old woman who spends 20 to 50 hours a week surfing the Internet for those she believes to be sexual predators and reporting her finds to the FBI. (more…)