Client Falsely Accused of Child Sexual Abuse Wins Second Acquittal Against Determined Public Integrity Unit Prosecutor
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
In early 2008 the Harris County District Attorney’s Office launched an investigation into alleged sexual abuse of inmates housed at a county detention facility. It is unclear exactly what prompted the inquiry, but a reasonable assumption can be made that the decision was influenced by the massive media and legislative attention given to evidence uncovered in 2007 by the Texas Rangers about widespread sexual abuse of inmates by staff in the state’s juvenile detention facilities.
Whatever the reason, a former Harris County detention facility officer was indicted between April and July of last year on multiple counts of sexual abuse of three female inmates during the time they were housed at the detention center in 2000. The former corrections officer, who had since become a deputy constable, retained the John T. Floyd Law Firm to represent him on the charges.
Two of the inmates were between 10 and 11 years of age and one was 13 or 14 years of age at the time of the alleged abuse [one instance of alleged sexual intercourse and numerous instances of inappropriate touching]. The teenage victim had already given birth to one of her six illegitimate children and was pregnant with the second at the time of the alleged abuse. All three victims had long histories of lying (even by their own admissions), drug use, stealing, and serious psychological disorders. The sexual abuse allegations by one of the former inmates against our client were thoroughly investigated in 2000 by detention center staff, the Houston Police Department and the District Attorney’s Office. The three law enforcement agencies determined the allegations were not credible, and, in fact, the alleged victim ultimately recanted the allegation, admitting that she had lied against our client in this particular instance and other instances just to “get him in trouble.”
Nonetheless, the District Attorney’s Office in 2008 determined that this thoroughly investigated and recanted sexual abuse allegation, as well as the other similar allegations of sexual abuse leveled against our client in 2000, warranted criminal prosecution. Our client bravely stood trial in September 2008 on the most serious sexual abuse allegation [aggravated sexual assault of a child]. The victim, who is now an adult with a substantial criminal history, testified about the alleged sexual assault. The assistant district attorney prosecuting the case made a serious tactical blunder: she relied almost exclusively on the victim’s testimony which, in Texas, is sufficient alone to sustain a criminal conviction in sexual assault cases involving minors.
The jury acquitted our client without any serious reservations. Discussions with the jurors following the acquittal revealed that they had serious problems with the victim’s credibility. One juror was so incensed by the prosecution’s handling of the case that he/she posted a “comment” on Houston Chronicle newspaper website that the prosecutor should have been jailed instead of our client.
It was a devastating defeat for the District Attorney’s Office which immediately announced it would prosecute the allegations made by the second juvenile. Trial for this second case was set for January 5, 2009. The John T. Floyd Law Firm undertook comprehensive investigation and preparation for this second trial. But shortly before Christmas the assistant district attorney informed defense counsel she would not be proceeding with the second case but instead would prosecute the third case. The prosecutor stated that alleged victim in the second case could not be located.
It was classic Harris County prosecutorial “dirty pool.” The defense team of course was briefly thrown into disarray. A motion for a continuance was promptly filed with the trial court. A new investigation and trial preparation was launched during the worst possible time of the year: the Christmas and New Year holiday season. But our veteran defense team did not waste time crying over spilled milk. Each member of the defense team gave up most or all of their holiday season to get prepared for the third case.
The trial court expectedly denied the motion for a continuance on January 3 and trial commenced in the third case on January 5, 2009. The District Attorney’s Office was far more prepared for this second trial, assigning two prosecutors to handle the case. The State introduced volumes of documents, called far more witnesses (all of whom had been well-coached), and presented “expert” testimony in support of its case. Lead counsel John T. Floyd and co-counsel Chris Carlson faced a seemingly endless string of “surprises” during the trial – including the testimony of the second victim who, somehow, had been miraculously re-discovered by the prosecution.
The defense team did not waver or flinch. It filed motions, made timely objections, and engaged in relentless cross-examination of prosecution witnesses. Each time the defense team was struck by what appeared to be a crippling body blow, it recovered instinctively with effective counter punches that not only frustrated the prosecution but more importantly resonated with the jury. The defense team was like a junkyard dog all over the prosecution’s trained pit bull. And at the end of the day it was the junkyard dog, though ragged and bloodied, that prevailed in the fight over the trained pit bull that had strutted its growling stuff before the fight. The jury, which watched the entire fight, rendered a thunderous verdict of acquittal that sent the pit bull back into the dark confines of the district attorney’s office humbled by the shame of a second defeat.
The second jury acquittal was influenced by the same factors prevalent in the first acquittal: the victims’ credibility. The jurors simply did not believe either victim, both of whom admitted to having severe difficulty with telling the truth. Interestingly, the prosecution at the second trial called an “expert” witness – a child psychologist – who testified that false sexual abuse allegations are extremely rare, occurring in only three percent of all sexual assault cases. The “doctor,” who was called in an attempt to rehabilitate the victims’ credibility, based this sweeping assertion not only on his own professional experience but on volumes of “well-established literature” he had read on the subject.
The defense countered on cross by asking the doctor if he was familiar with a 1996 U.S. Justice Department study that found as many as 25 percent of all sexual assault allegations made in this country are false. The study, entitled “Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial,” examined 10,000 sexual assault cases which had been analyzed with DNA evidence over the previous seven years. The study excluded 2,000 primary suspects who had been wrongly charged and found 2,000 more cases against suspects to be “inconclusive.”
During the trial, the defense team also contacted the Innocence Project at the Benjamin N. Cardozo School of Law at Yeshiva University in New York [http://www.innocenceproject.org/ ] and learned from its publications manager, Elizabeth Webster, that at least 196 of the 225 DNA exonerations in this country since 1989 involved individuals wrongfully convicted in sexual assault cases—some of which involved convictions for “child sexual assault” cases. Ms. Webster was careful to emphasize these cases did not all involve false allegations of sexual assault that were fabricated in order to implicate the defendant. Many of those 196 cases involved eyewitness misidentification. In those cases, an actual sexual assault occurred, but the victim (or another witness) identified the wrong person as the assailant. Other than false allegations, false confessions, forensic science error, snitch testimony, prosecutorial misconduct and bad lawyering also contributed to wrongful convictions, said Walker.
We can only surmise that the doctor’s personal experience and readings of “well-established literature” did not include DNA wrongful convictions data in sexual assault cases; nor did it include the findings of Purdue sociologist Eugene J. Kanin who, after a 9-year study, found that 40 percent of the sexual assault allegations examined in his study were false. See: Archives of Sexual Behavior, Vol. 23, No. 1 (1994). A follow-up study by Kanin found that at least 50 percent of the rape complainants in two Midwestern university cities recanted their sexual assault allegations before the cases ever went to trial.
We also surmise that the doctor had not read a 1992 Washington Post investigative report which found that one in four rape reports made in 1990 and 1991 in seven Virginia and Maryland counties were also false. Nor had he read Linda Fairstein’s book “Sexual Violence: Our War Against Rape.” The former Sex Crimes Unit prosecutor with the New York County District Attorney’s Office reported that there are “4,000 reports of rape each year in Manhattan. Of these, about half did not happen.”
We also surmise that the good doctor was not aware of an Air Force study in 1985 dealing with 556 rape accusations made in that military organization. 25 percent of those alleged victims recanted their allegations just before they were scheduled to take a polygraph examination or shortly after they underwent the examination and failed. An independent review of this study found that 60 percent of the rape allegations were false.
On her website, http://www.false-allegations.com/, Dr. Reena Sommer, a divorce and custody trial consultant, states:
“Telling the truth is simply NOT enough. There are two mains reasons for this: 1) There is a common misperception held among those involved in protecting children’s interest that children do not lie – especially about something as serious as sexual abuse. And, 2) when it comes to children’s safety, the courts will always err on the side of caution. Such being the case, it becomes more clear why telling the truth is simply not enough.
“Since telling the truth is not enough, the accused and their attorney are faced with the following challenges: 1) proving that the allegations are false, 2) presenting a reasonable explanation for why the false allegations were made, and 3) demonstrating how the false allegations came to be. Meeting these challenges can be difficult for most – but certainly not impossible. What is required is the ability to piece the information together and to present it at trial in a way that is both understandable and convincing. That takes a skilled attorney who will build and present the case and an equally [skilled] consultant who will review, analyze and compile evidentiary material.
“False allegations of sexual abuse are very serious. If they are not dealt with appropriately, these allegations could result in a permanent loss of access to one’s children or worse yet, it could result in a prison term. Having the best resources are essential when faced with false allegations of sexual abuse.”
False rape allegations that result in criminal charges are more than “very serious.” They are life-devastating. They can ruin the accused economically, destroy his family life, end his professional career, and shatter his social standing in the community – not to mention the prospect of being sent to prison for the rest of his or her life. This is precisely what happened to the former deputy constable represented by this Firm in these false sexual assault cases. The two trials never should have taken place. Twenty-four Harris County jurors, who are known for not being sympathetic to child sexual abusers, unanimously concluded as much with their verdicts of acquittal. The defense team still faces the possibility of yet two more trials in the constable case – all because an assistant district attorney is on some kind of crusade to enhance her professional reputation as a “tough sex crimes” prosecutor. These prosecutorial tactics do not serve the legitimate interests of justice but rather undermine the credibility of our criminal justice system. When one juror professes publicly that the prosecutor should have been jailed instead of our client, it speaks volumes about the lack of judgment the prosecutor has demonstrated in these cases.
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair