Rule of Court Make Overturning False Convictions Difficult

By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair


According to the Rape, Abuse & Incest National Network (“RAINN”), there are 207,754 sexual assaults in this country each year. That is one sexual assault every two minutes. An overwhelming majority of the victims of these sexual assaults are women—44% of whom are under age 18 and 80% are under age 30. RAINN, a female advocacy group, reports that 54% of sexual assaults are not reported to the police. That means there are actually 112,187 sexual assaults allegations leveled each year. Since RAINN does not inform how it derived at the 54% figure other than to say it is based on ”statistical average of the past 5 years,” there is no meaningful way to place credibility in that claim.


The one thing these “cry rape” groups do not discuss is the number of false allegations of sexual assaults that are leveled each year against innocent men. There are hundreds, if not thousands, of such allegations made each year if you factor in the “statistical average of the past 5 years” of women caught making such false allegations. What would make a woman falsely “cry rape”? A Voice for Men, a male advocacy group, provides some illustrations of false “cry rape” situations:


  • The  need to deny a consensual tryst
  • Nasty break-ups
  • Alcohol-fueled encounters
  • Big age differentials
  • Certain professions more readily lend themselves to false rape claims
  • Mentally unstable declarants
  • Compulsive liars


That brings us to the case of Brian Banks, a Long Beach Polytechnic High School football star who aspired to reach the pros and who had a chance to get there through the universities of S. Cal, Ohio State and Michigan—all of whom had expressed an interest in him. That aspiration was cut short by a childhood friend, Wanetta Gibson, who falsely claimed that Banks had kidnapped and raped her on the Polytechnic campus where she was also a student. Faced with a life sentence under California law, Banks pled no contest to the rape charge in exchange for 10 years based on the advice of counsel.


While Banks was hauled off to a California prison, Gibson’s mother filed for, and received, a $1.5 million judgment against the Long Beach school system for allowing her daughter to be “victimized” by the alleged rape.


After Banks was released from prison where he served five years, Gibson befriended him on her Facebook page. She then met with him, telling him that she was willing to help him clear his record. But she would not recant to prosecutors out of fear she would have to repay the $1.5 million she had obtained. Banks then set up a second meeting with Gibson. This time a defense investigator, Freddie Parish, attended the meeting and secretly recorded it.


“I will go through with helping you, but it’s like at the same time all that money they gave us, I mean gave me, I mean I don’t want to have to pay it back,” Gibson told Banks.


This past May a Long Beach judge issued a ruling that completely exonerated Banks of the false “cry rape” charge.

Now what’s wrong with this picture? Banks faced a felony charge for a rape he did not commit and the most Gibson could face is a misdemeanor charge of filing a false police report. Not to mention getting to keep the $1.5 million she swindled through her false lawsuit.


And then there is the bizarre case of Tracy West, a Simi Valley, California woman who in February 2008 staged a physical and sexual assault on herself. She accused Louis Gonzalez, a former boyfriend and the father of her five year old son, of the rape. She did so out of a perverse revenge to forever cut Gonzalez out of his son’s life.


And just how far was the willing to fake the false rape accusation? The sick woman tore out chunks of her hair and burned her own stomach and fingers with matches. She told the police that Gonzalez hogtied her after which he vaginally and anally raped her with a wooden hanger. She said he then tried to suffocate her with a plastic bag.


West and her new husband reported the alleged attack to the police. Gonzalez was immediately arrested at the school where his son attended. He was there to pick the child up for a weekend visitation. While the innocent man was spending 83 days in maximum security awaiting trial, Gonzalez’s defense attorneys, with the help of a forensic investigator and an honest cop, proved that West was lying. They found witnesses, security cameras, phone records, and bank withdrawals that fully accounted for Gonzalez’s whereabouts on both the morning and afternoon of the alleged rape.


This compelling evidence notwithstanding, prosecutors pushed ahead with the rape charge based solely on West’s accusation, but in April 2008—just one day before a preliminary hearing in the case—prosecutors dropped the charge because their only witness, Tracy West, had been admitted to a local hospital following a “suicide attempt.” She didn’t want to face Gonzalez’s defense team which had put together clear and convincing evidence that she had lied about being raped by Gonzalez.


Undeterred, West filed for, and secured, a restraining order to keep Gonzalez from seeing his son. The family court judge issued the order because he was concerned that prosecutors would resume the rape prosecution. But once again, just as Gonzalez’s attorneys were about to get West on the witness stand in a challenge to the restraining order, she withdrew it. The custody judge was so upset that he awarded Gonzalez $55,000 in legal fees.


Cleared of the restraining order, Gonzalez filed a petition for “factual innocence” which was strenuously opposed by Ventura County prosecutors. It took the court a year before it could grant the petition and declare Gonzalez factually innocence. And despite Gonzalez’s attorneys aggressive efforts to have West arrested for filing a false police report, prosecutors refused to arrest her, saying: “We could not say with 100% certainty that Tracy West was lying.”


But what happens when a man is accused of rape, denies the accusation, and chooses to stand trial to prove his innocence? Calvin O’Neil Jackson did this and was convicted of six counts related to the alleged rape of his former girlfriend in January 1999 in the State of Nevada. The Ninth Circuit Court of Appeals, in Jackson v. Nevada, reversed Jackson’s convictions on August 6, 2012, nearly thirteen years after the alleged rape of his girlfriend occurred.


Annette Heathmon was a troubled woman with a history of making false allegations of physical/sexual abuse. She had a volatile 10-year on-again, off-again relationship with Jackson. In 1998, Heathmon broke up with Jackson and moved into an apartment she shared with a friend. Jackson reportedly continued to come by that apartment to see her until she moved out and into another apartment without telling Jackson about the move. The first night (October 21, 1998) she was in her new apartment a mutual friend named Willie Williams knocked on her door. She opened the door, she said, not realizing Jackson was with Williams. The Ninth Circuit picks up the events here:


“According to Heathmon, Jackson forced his way into her apartment, threatened to stab her with a screwdriver if she did not agree to have sex with him, raped her and beat her. While Jackson was in the apartment, Heathmon testified, he cut the clothes hanging in her closet with a knife that she kept with her on her bed, ripped the phone from the wall, and stole a ring from her dresser and some food from the freezer. Jackson left the apartment dragging Heathmon with him, demanding that she walk with him to his car. As Heathmon was being led away from the apartment by Jackson, the pair encountered Fred Webb, a security guard at the complex whom Heathmon had been seeing romantically. When Webb came towards them, Jackson let go of Heathmon and left the scene. She told Webb that Jackson had cut up her clothes, and demanded that Webb pursue him. Although Webb caught up with Jackson, he did not detain him at the scene and Jackson left. Jackson was ultimately arrested and charged with burglary, battery with the intent to commit a crime, first degree kidnapping with the use of a deadly weapon, and two counts of sexual assault with the use of a deadly weapon and robbery with the use of a deadly weapon.”


Prior to this instance, there were prior instances where police were summoned by Heathmon with allegations of physical and sexual abuse by Jackson. In each of these prior instances, the responding officers expressed doubts about Heathmon’s claims, and in particular noted the inconsistencies in Heathmon’s claims with the physical evidence. In one prior instance, March 1995, the responding officer noted that while Heathmon claimed Jackson had beat her with his fists and repeatedly kicked her after she fell down and stomped on her chest, the officer observed no physical injuries to Heathmon and she was not “dirty” from rolling on the floor nor was her clothes in disarray. The officer refused to arrest Jackson.


In yet another instance, May 1995, Heathmon called the police and reported that Jackson had pulled her out of a friend’s car, which was stopped in front of Jackson’s house, and dragged her across the lawn in front of a number of his friends, and took her into the house where he raped her. The responding officer said he “could find no signs of sexual assault.” The case was assigned to another officer for further investigation and this officer conducted several interviews with Heathmon. The officer said Heathmon did not express any fear, injury or anything else “other than anger to get Jackson in jail.” The officer eventually closed the investigation after several failed attempts to re-interview Heathmon, expressing doubt as to whether the attack ever took place.


Prior to his trial, Jackson moved the trial court to allow him to present the prior false allegations of physical and sexual abuse as part of his defense that she tried to use the police as a means to exercise control over him. He also wanted to present evidence about her prior acts of prostitution. The trial court ruled this evidence was “neither relevant nor material to his defense.” Under Nevada rules of evidence, a defendant cannot use “extrinsic evidence” to challenge the credibility of a witness, except when the witness is a sexual assault victim who has made prior false claims of sexual abuse provided the defendant provides the court with a notice of his intent which gives the court an opportunity to conduct a hearing to determine the admissibility of the extrinsic evidence. Apparently Jackson did not satisfy this evidentiary rule.


Jackson’s state appeal was based almost exclusively on the related issues that he was denied his Sixth and Fourteenth Amendments to present a complete defense and to fully confront the witness against him. The Nevada Supreme Court denied the appeal, saying Jackson had not fully complied with state evidentiary rules in order to get the contested evidence before the jury.


Jackson then faced the daunting task of securing federal habeas corpus relief under 28 U.S.C. Sec. 2254—a statute so restricted by the 1996 Anti-Terrorism and Effective Death Penalty Act (AEDPA) that it is virtually impossible for a state prisoner to obtain a fair and meaningful hearing in federal court of any alleged constitutional violation. Under AEDPA, the only way a state prisoner can obtain federal habeas relief is if the state court’s denial of his alleged constitutional violations was (1) contrary to, or involved an unreasonable application of, clearly established Federal law as decided by the U.S. Supreme Court; or (2) based on an unreasonable determination of the facts in light of the evidence presented in the State courts.


Since Federal courts must pay extraordinary deference to state court “findings of fact,” a state prisoner has a better chance of reaching Mars on a Greyhound in six hours than he does of proving a state court proceeding was based on an “unreasonable determination of the facts.” Thus, the only legal option available to Jackson was to show the Federal district court that the curtailment of his right to present a defense/confront the witness against him violated established Supreme Court precedent.


The average person does not understand just how daunting it is for an innocent man to wade through the State and Federal post-conviction proceedings and secure relief. By its own precedents, a State Supreme Court is bound by the “pay due deference” rule to jury and trial court decisions that securing a new review of alleged constitutional violations is virtually impossible. Even when an inmate has factual evidence and DNA tests which indisputably support his innocence, prosecutors and state courts will fight and resist the inmate’s innocence efforts for years, as they did in the Michael Morton case (here, here, here and here). And federal courts in Sec. 2254 proceedings routinely give constitutional blessing to these completely erroneous state court decisions.


The U.S. Supreme Court has long recognized (Crane v. Kentucky) that a criminal defendant has a constitutional right to present a defense and to fully confront witnesses against him (Washington v. Texas). These decisions, and a slew of others, notwithstanding, the Federal district court denied habeas relief to Jackson. It is difficult at times for even the most experienced criminal defense attorney to comprehend adverse post-conviction rulings at both the State and Federal level. As the Ninth Circuit observed, Heathmon’s credibility was a critical issue to Jackson’s defense: there was only minimal physical evidence that she had been physically or sexually assaulted; the screwdriver was never found nor was it observed by witnesses who saw Jackson and Heathmon together after the alleged assault. Put simply, there was no eyewitness or physical evidence that corroborated Heathmon’s account of the alleged physical/sexual assault. Given her history of making false allegations of physical/sexual abuse, it is difficult to understand why the Federal district court did not reach the same conclusion as did the three-judge panel of the Ninth Circuit.


While some cases have held that prior false sexual allegations are not relevant to the case being tried, the Ninth Circuit correctly pointed out these prior false sexual assault allegations did not involve the same defendant. Heathmon had a clear pattern of make such false allegations against Jackson throughout their 10-year stormy relationship. It is almost incomprehensible that the Nevada Supreme Court and the Federal district court did not find that Heathmon’s prior false sexual assault allegations were critical impeachment evidence relevant and material to Jackson’s defense. In effect, these courts allowed a man to spend at least 13 years in prison based solely on the testimony of a woman with a long history of lying. That is the harsh legal reality that an innocent man convicted of a false sexual assault faces at both the State and Federal level when trying to undo his wrongful conviction. Even the three-judge panel of the Ninth Circuit had to go to great lengths to explain and justify its decision that Jackson’s constitutional rights were violated and that he was entitled to a new trial.


Did Calvin Jackson ever physically or sexually abuse Annette Heathmon? We don’t know. But what we do know from factual evidence is that Heathmon made false reports to the police about both physically and sexual abuse Jackson committed against her. No man should spend 13 years in prison based on the kind of shabby evidence the State of Nevada presented against Calvin Johnson. Women like Heathmon cannot repeatedly falsely “cry rape” and expect a possible real rape accusation to have credibility.


Calvin Jackson was lucky. He drew a three-judge panel from the Ninth Circuit willing to squarely confront the constitutional issues involved in his case and the courage to correctly find he was entitled to a new trial. A different three-judge panel may have found the exact opposite; that the lower court decisions denying relief were correct and should stand. So for many innocent inmates, especially in rape cases, their claims of innocence come down to the “luck of the draw” as to which judges hear their cases. And that’s a disturbing thought…


By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair

John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization