Houston Press Reports Our Victory in Court and Client’s Life After False Allegations
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
One of our recent success stories was profiled in the cover story of the May 6-12, 2010, edition of the Houston Press. In Oh Hold, The Press exposed the hard reality that charges of child sex crimes can haunt a person for life, even though he may be exonerated before a jury of his peers, or, as it was in this case, after two separate trials and two “not guilty” verdicts.
Michael Serges was a Houston deputy constable when he was arrested in March 2008 for aggravated sexual assault. He was fired by Precinct 4 Constable Ron Hickman immediately after his arrest. Serges retained the John T. Floyd Law Firm to represent him. We knew it was going to be a difficult case. All child sexual assault cases are. This one involved a 7-year delayed outcry. The alleged victim was a former inmate in a local juvenile detention facility where Serges worked at the time (2000). She charged that Serges had raped her in the shower of the facility. The prosecutor would attempt to support victim’s charge with testimony from another former inmate at the same facility who was a twice-convicted felon by the time Serges was put to trial. The jury would also be presented with a very sympathetic complainant, one who was dying from lupus, who would be rolled into court in a wheel chair, wrapped in a blanket to warm her withering body and whose very breath required support from a nearby attached oxygen tank, a defense lawyer’s nightmare. The case would only grow worse as the investigator from the D.A’s office seemed to magically come up with four new “victims,” who stories were eerily, and unsettlingly, similar.
The first case’s difficulty was primarily due to it being a classic “she said/he said” case. The prosecution, of course, portrayed the victim as a “helpless” troubled child taken advantage of by a demented, corrupt prison guard. The opposite was the case. The complainants had long histories of lying (even by their own admissions), drug use, stealing, and serious psychological disorders. In fact, the sexual abuse allegations by one of the former inmates against Serges had been 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 told lies against Serges in this particular instance and in other instances just to “get him in trouble.”
The District Attorney’s Office chose to continue with this case, we believe, primarily because of the massive scandal revealed in 2007 about prison guards abusing inmates throughout the state’s juvenile institutions. The prosecution bolstered its case by hauling in a “child sexual assault expert” from the Harris County Children’s Assessment Center (“CAC”) who testified that in such cases the “studies” and “literature” show that only 3 percent of children make false sexual assault allegations.
The jury didn’t buy the prosecution’s case. After three days of grueling testimony and cross examination, Serges was acquitted. We wrote about the acquittal and the reasons for it. Our jubilation was short lived, however. The District Attorney’s office, stunned and embarrassed by the jury’s harsh rejection of its case, announced it would try Serges on the second of the six cases it had remaining against him. Our defense team once again to had to gear up for another fight as we thoroughly investigated and prepared for this second case.
But in early December the District Attorney’s office pulled off one of its classic “slight of hand” maneuvers. It announced that it would try its third case rather than the second because the witness in the second case could not be located, which turned out to be either a mistake or a lie, as she was called to testify as a state’s witness just days later.
The firm’s Christmas holidays were effectively put on hold. We had to begin yet a third investigation because we faced a January 5, 2009 trial date. The District Attorney’s underhanded maneuver did not deter us. We were prepared for the January trial date and won a hard fought and unheard of second acquittal involving the same defendant charged with sexual assault of a second child.
After facing two acquittals in the Serges cases and a newly elected District Attorney in town, prosecutors stated they would not proceed with the remaining cases and eventually dismissed all the charges. Michael Serges was free man, he had been exonerated by two juries and the district attorney’s office had decided to dismiss the others. Well, his joy was suddenly dashed as he realized he could not longer find a job in law enforcement, a career he cherished.
Michael Serges did the only thing he could do: he took his case to the court of public opinion. The Houston Press discussed hardships Serges has faced since his acquittals. “The first time I was elated, overjoyed,” Serges told Press reporter Chris Vogel. “After the second acquittal, though, I was upset. Angry that they put me through all of this again.”
That anger only intensified when Serges tried to get his old Precinct 4 constable job back. He was told that he would have to begin anew just like any other job applicant. The Press reported that he took all the tests and passed them. He was told he should have no problem being hired. But two weeks later he received a letter from the Constable’s office informing him that he did not meet their new standards. “It doesn’t make any sense,” Serges told the Press. “Nothing is any different now from when I was working there before.”
Robert Goerlitz hit the proverbial nail on the head when discussing Serges’ case with the Press. “It someone is acquitted,” he said, “I don’t see why he shouldn’t be hired somewhere. Perception is everything with the public, and if the perception is that someone is guilty, then people hang onto that. And it affects your career because you carry that baggage even if you are innocent. Departments have to look at each case, and if there’s some evidence, but not enough to convict, then just don’t make him a school resources officer, but you shouldn’t be denied completely.”
Therein lies the crux of the problem. The jury foreman in Serges’ first acquittal was a business consultant named Gower Talley. He told the Press that the prosecution’s case was a sham. “When the prosecution laid out the specific mechanics of what was supposed to have happened at the detention center,” he said, “it was improbable to the extreme and borderline impossible. We’re not talking, ‘Did he do it?’ We’re talking about whether it’s physically possible within that facility to do what he was accused of. It would have required multiple people being proactively complicit for the scenario to even be possible. Some of the accusations were demonstrably false. It was obscene.”
The prosecution understood this basic weakness in its case long before the trial ever commenced. It was the major thrust of our defense: that to accept the victim’s version of the events, there would had to have been a complete meltdown of all the facility’s security protocols; a meltdown that would had to have had the support of at least several other staff members. The prosecution’s case, through the victim’s testimony, simply did not comport with the physical realities of the facility.
So what did the prosecution do to offset this obstacle? They did what they normally do to bolster weak case, called in a child sex abuse “expert,” a hired gun to say children don’t lie about sex allegations.
In one of Serges’ trials, the prosecutor called child sexual assault expert Dr. Lawrence Thompson, from the Child Assessment Center, to bolster its weak case. The CAC is a quasi-official government agency partially funded by county and city government. It partners with the Harris County District Attorney’s Office, as well as with county and city law enforcement agencies, in handling and treating child sexual abuse cases.
Quite frequently Harris County law enforcement officers will receive a report that a child has been sexually abused. The officers will deliver the child to the CAC who will make a determination of whether a sexual assault has actually occurred. Based on this preliminary assessment, the officer, or an assistant district attorney to whom the report has been referred, will determine if there is probable cause for arrest. If a child sexual assault case results in arrest, indictment, and trial, the District Attorney’s Office will generally call CAC personnel to testify at the trial as “experts” in child sexual abuse.
To begin with, we strongly believe the CAC has a massive conflict of interest. Its mission “is to provide a professional, compassionate, and coordinated approach to the treatment of sexually abused children and their families and to serve as an advocate for all children in our community.” Its mission, therefore, is not to serve as a “partner” with law enforcement and as “hired gun” for the District Attorney’s Office. In fact, the CAC over the past decade has actually morphed into a quasi-official law enforcement agency whose real “mission” is to secure criminal convictions against defendants charged with child sex offenses, not only to treat the victims of that abuse.
Dr. Thompson is one CAC’s regular “experts” in Harris County courtrooms, and at Serges’ trial, he reiterated the CAC’s standard message that children rarely ever make false or fabricated sexual assault allegations. Dr. Thompson is Director of the CAC’s Therapy and Psychological Services Department. This department provides “therapy, psychological assessment, and psychiatric evaluation of child victims and their family members to assist them throughout the healing process.” The department utilizes what is called a “holistic approach” in this healing process which translates into “treatment” of the mind, body and spirit. Within these parameters, the department offers “various types of therapies” provided by “professionals from several disciplines” whose work “are guided by a variety of theoretical orientations.”
We were extremely fortunate that jury did not accept Dr. Thompson’s testimony as infallible in the Serges case. But other defendants have not been as lucky. The District Attorney’s used Dr. Thompson in the Frederick Lane case. Lane was tried, convicted, and sentenced to sixty years in the state’s prison system for aggravated sexual assault of a child. The alleged victim’s was Lane’s daughter who testified her father forced her to perform oral sex on him and had anal intercourse with her. She said the sexual abuse went on for an extended period of time; that she did not report it because her father had threatened to kill the family if she told anyone. The daughter did not report the abuse until she turned 18 years of age. She was 24 years old at the time of Lane’s trial at which she testified that she still suffered from post-traumatic stress and had to undergo weekly therapy sessions. 1/
Lane’s oldest daughter corroborated her sister’s story to a certain extent. She told the jury her father regularly awakened her sister at night and took her to the bathroom down the hall where the alleged abuse occurred. The oldest daughter, along with other members of the family, also testified they knew of no other reason why the youngest daughter would level the abuse charge unless it occurred. 2/
This corroboration was not enough for the District Attorney’s office. They called Dr. Thompson and had him “testify as an expert in the field of child abuse and post-traumatic stress disorder.” 3/ Dr. Thompson first “educated” the jury with an unsubstantiated assertion that non-disclosure occurs in over half of all child sexual abuse cases. There was, and is, no credible authority to support such a bald conclusion. Dr. Thompson then informed the jury that false allegations of child abuse rarely ever occur:
Q. How about false allegations? Is that a big part of the studies regarding sexual abuse?
A. No, it’s not a big, big part. It is something that happens. There are false allegations of child sexual abuse, but what I can tell from the research and my clinical experience is that those allegations are extremely rare. 4/
Lane’s defense counsel objected, telling the judge the doctor was attaching credibility to an entire group of people. The judge sustained the objection but that did not slow the relentless march by the prosecution to establish this point.
Q. Is this based on your training and experience in general, that is, the study of or the looking at the false accusations, is that something that you have done through your education and through your training and through your experience?
A. I have definitely observed all areas of child sexual abuse, including false allegations.
Q. And so how do about separating in a general way scientifically between a true allegation and a false allegation?
A. Well, in the false allegation abuse that I in my clinical experience has [sic] observed – have observed, the theme that was present in that was an adult coercing a child to say something happened that didn’t happen. Coaching is what it is referred to in the literature. So we have an adult coaching a child to say they were abused when they were not abused … And, again, it is a rare occurrence, but it is something that is documented in the literature and coaching of children has unfortunately happened. 5/
While defense counsel made that one general objection to Dr. Thompson’s testimony, he did not follow it up with a motion for a mistrial, a request for an instruction from the judge to the jury that the doctor’s testimony should be disregarded, or another objection to the prosecution’s continued questioning about false allegations even though the judge had sustained the earlier general objection. Defense counsel compounded these tactical mistakes when he chose to revisit the false allegation issue on cross examination of Dr. Thompson:
Q. Okay. You indicated – you’ve indicated that the majority of false allegations involved an adult coaching a child?
A. Yes. Yes, in my clinical experience and in the literature.
Q. Have there been studies done to determine, give us any information, any data, about adults making false accusations and claiming that they were the victim?
A. No, there are no studies that I am aware of specific to that, but the general studies that I am aware of regarding all victims of child sexual abuse, adult or child, consistently show that child or adult do not make – tend to make false allegations of child sexual abuse. 6/
The District Attorney’s office then called yet another CAC expert—a social worker named Myrna Engler who testified she had counseled Lane’s daughter on a weekly basis for fourteen weeks and was of the opinion the daughter suffered from post-traumatic stressed induced by childhood sexual abuse. 7/
The prosecution’s closing argument illustrates just how important the District Attorney’s office considered the CAC expert testimony provided by Dr. Thompson and Ms. Engler:
“Also, the experts, not only do they have all this training and experience and education that we usually don’t have, in our case here you have Ms. Engler who actually spent 14 hours with the victim, not just the time we spent with her, but every week, hour after hour after hour. And that could help you, if it does, decide whether or not [the victim] is a credible person. That’s why the experts brought to you and we talked about experts and everybody said that they can keep an open mind and listen to experts … We learned from the expert that fabrications on sexual assault is extremely rare based on the paper, the studies, and the research. That’s what the experts tell you and that’s what they testify to. It is extremely rare that somebody would come up and just make an allegation like that … When you think of an allegation like that, though, what’s the first thing you do, like I talked about earlier. The credibility of the witness. Well, what’s going on? Is the allegation being made because it is true or is there some other reason?” 8/
Well-established Texas jurisprudence, which the prosecution was surely aware of when it prosecuted the Lane case, provides that a witness’ credibility is determined by the jury, not by experts. 9/ The Fourteenth District Court of Appeals held that both Dr. Thompson and Ms. Engler’s testimony was inadmissible. Dr. Thompson, the court noted, effectively told the jury it could believe the victim’s testimony because children rarely make false sexual abuse allegations. Likewise, the court said Ms. Engler told the jury it could believe the victim because she (Ms. Engler) had determined the victim had experienced childhood sexual abuse and suffered from post-traumatic stress as a result. 10/
In yet another Harris County case Dr. Thompson was also utilized as an expert witness. This case involved John Wilson Herrera who was also found guilty of aggravated sexual assault of a child and sentenced to 15 years in prison. 11/ The victim in the Herrera case was a 13-year-old boy. Absent any medical evidence, the case boiled down to the classic “he said/he said.” The youngster said the sexual abuse occurred; Herrera said it didn’t. The District Attorney’s office knew the victim’s credibility would be the key issue for the jury to decide. The prosecution, therefore, made a calculated decision to have Dr. Thompson testify about the rarity of false sexual abuse allegations by children. 12/
Dr. Thompson continued his professional spiel that non-disclosure occurs in 50 percent of all child sexual cases, thus any delay in disclosure does not affect the child’s credibility. The prosecution then elicited testimony from Dr. Thompson about “characteristics” of sex offenders, child sexual assault victims, and the possible “psychological effects” of sexual assault on children. It was Herrera’s defense counsel who elected to open the door to the rarity of false sexual abuse allegations by children with the following line of questioning:
Q. As a clinician and in your training you were taught to look for false allegations; is that correct?
A. Could you be more specific? You say I was taught to look for false allegations?
Q. You’re aware that false allegations can occur?
A. I am aware that false allegations can occur.
Q. And, as a clinician, when you interview somebody, that would be something you would take into account, right?
A. Yes.
Q. I mean, you wouldn’t automatically assume just because the child said—or is sitting in front of you that—I know you wouldn’t voice this to the child, but you wouldn’t automatically assume this child is telling the truth without hearing a word the child said, right?
A. No. I mean, in fact and in the way of doing mental health work, psychotherapy, you just try and meet the child where they are at, wherever they are at.
Q. Right. I mean, because making a false allegation like this could be a sign of a different mental health issue, right?
A. Could be.
Q. Now, you said delayed outcry occurs in roughly 50 percent of these cases, is that right?
A. Over 50 percent. You know, different studies point to different numbers; but what I can say is generally that number – that there is a delayed outcry in more than half of all cases. 13/
Defense counsel pursued several other lines of inquiry but persisted in returning to the false allegation issue.
Q. Is it possible that in order to try and gain trust or favoritism with a girlfriend, a 16- or 17-year-old could fabricate or lie about a sexual assault?
A. No. That’s not anything I ever encountered.
Q. Do you think it’s hypothetically possible?
A. I think most anything is hypothetically possible, but that type of fabrication is not something that I have encountered. And so it’s possible, but definitely not probable in my clinical experience.
Q. Well, let me ask you this: Doctor, if this hypothetical boy sees the girlfriend getting favorable treatment and being excused from her grade failing and things like that, do you think that might lead him to make a false disclosure?
A. No. No. What the literature and what my experience shows with regard to false disclosure is that … there is typically an element of coaching of a child, but I cannot tell you of one instance where a child has seen another child getting preferential treatment because they were sexually abused and then saying, “Let me say I have been sexually abused, too” to get the same preferential treatment. That has not been my experience.
Q. In a hypothetical situation, what about if it’s for a sexually active girl, hypothetically, sexually active boy, hypothetically, trying to gain trust with that girl to say, “I was sexually abused, also” to build that bond? Do you think that could happen?
A. Again, you know, anything is possible, but in my clinical experience and my knowledge of the literature, those are not the triggers for false allegations of abuse that we see. 14/
On redirect examination, the prosecution, as it was permitted to do, sought to rehabilitate Dr. Thompson on the false allegations issue by asking:
Q. What about when you’re asked about false allegations or false disclosure, is that more likely to happen or less likely?
A. It’s less likely. I was able to reference this myself, that I speak of false allegations of abuse, but false allegations of abuse are very rare. Kids do not tend to make up allegations of child sexual abuse. In my clinical experience, and the literature supports this, in less than 2 to 4 percent at most of all cases which there is an allegation of sexual abuse is a child being coached or making a false allegation of abuse. It’s statistically a very rare phenomenon but it does—but it can happen. 15/
The First District Court of Appeals rejected Herrera’s claim that Dr. Thompson had expressed a direct opinion about a witness’ credibility. The court distinguished Herrera’s case from the Lane case by pointing out that Herrera’s counsel opened the door to the false allegation issue. 16/
The problem inherent in Dr. Thompson’s testimony in these two cases is that, first, much of it was not true, and, second, it was terribly misleading. Contrary to what Dr. Thompson said, there have been numerous credible studies which found that false allegations occur in 25% to 60% of all sexual assault allegations made in this country. And it is misleading to say non-disclosure occurs in more than 50% of all child sexual assault cases. At best, such a conclusion could only be an estimate—not an established scientific fact. It’s impossible to prove a negative. If a sexual assault is not disclosed, how can you possibly know for a fact that it occurred?
Testimony from “experts” like Dr. Thompson is difficult to overcome in child sexual assault cases. This kind of testimony vouches for the credibility of the child by effectively telling the jury that “children don’t lie” about sexual assaults. The inevitable question arises: what professional credentials qualify Dr. Thompson to testify as an “expert” about such matter? This question was answered by the Fourteenth District Court of Appeals in the case of Steven Briones who was convicted in Harris County of aggravated sexual assault of a child and sentenced to 50 years in the Texas prison system. 17/
The alleged child sexual assault in the Briones case involved one of his three children, a daughter. The sexual abuse reportedly occurred following Briones’ divorce from his wife and during visitations by the children with their father. Six months after the alleged sexual abuse the daughter told her mother about the incidents. The mother contacted the police who took the daughter to the CAC where she was given “thorough physical examination, as well as an interview in which she was asked multiple questions about the incidents with Briones.” The exam and interview were conducted by Dr. Reena Isaac who testified at Briones’ trial about both. Based on the information obtained from the child by Dr. Isaac, Briones was arrested and subsequently indicted on the child sexual assault charge. 18/
In addition to Dr. Isaac, Dr. Thompson also testified at Briones’ trial. Briones’ defense counsel objected to Dr. Thompson’s testimony, saying he was not qualified to testify as an “expert” and because his testimony was unreliable. It should be pointed out here that the prosecution called Dr. Thompson as a rebuttal witness after Briones and several family members told the jury the father and daughter interacted in a normal and loving fashion without any indications the daughter feared or disliked her father prior to the mother reporting the alleged abuse to the police.
Before allowing Dr. Thompson to testify, the trial judge conducted a “gatekeeper” hearing outside the jury’s presence to determine the doctor’s qualifications as an “expert” and the “appropriateness” of his intended testimony. This hearing was in response to objections made by Briones’ defense counsel that the prosecution had not specified the “area of scientific knowledge upon which Dr. Thompson would testify” or exactly how the doctor was “qualified to testify on that specific body of knowledge.” 19/
Dr. Thompson then offered his qualifications:
- He has a masters degree and a PhD in clinical psychology;
- His “doctoral dissertation” concerned personality disorders and sexual abuse of children;
- He has served in a clinical and practical internship at the University of Michigan where he worked with child victims of sexual abuse and their families;
- He had worked with the CAC since 2001 at a staff psychologist and director of Therapy and Psychological Services Department;
- As a practicing psychologist, he had worked with and observed more than 300 child sexual assault victims; and
- He had maintained an ongoing study of literature in the field of child sexual assault. 20/
Based on these academic and professional credentials, the trial court ruled Dr. Thompson was qualified to testify as an “expert.” The court of appeals concurred with that finding. The doctor told the jury in the Briones case that he was familiar with the behavior of child sexual assault victims and that it was not uncommon for some of these victims to behave normally around adult abusers; that they exhibited no outward signs of anxiety or depression. 21/
Once again, the problem with Dr. Thompson’s testimony is that it was terribly misleading. Other “experts” in the field of child sexual assault have testified in Harris County courtrooms about a complete opposite mode of behavior exhibited by sexual abused children. For example, Dr. Barlee Roy testified in the case of Michael Wayne Cohn, who was convicted in Harris County of indecency with a child, that sexually abused children will experience “crying episodes” and “angry episodes” as well as experience concentration problems in school. 22/
The Cohn and Briones cases not only underscore the duplicity of the Harris County District Attorney’s office with its use of child sexual assault “experts” but illustrate the diverse professional conclusions drawn by experts like Dr. Thompson and Dr. Roy. Dr. Thompson was used in the Briones case to provide the “expert” opinion that it’s “normal” for sexually abused children not to exhibit “anger” episodes while Dr. Roy was used in the Cohn case to show it’s “normal” for sexually abused children to exhibit “angry” episodes.
It makes no difference which “expert” was right or wrong. What is important is that these two cases reveal that the Harris County District Attorney’s Office utilizes child sexual assault “experts” as nothing more than “hired guns” to tell juries what the prosecution wants them to hear in a particular case. If the prosecution needs an expert to say “non-anger” is normal, the District Attorney’s Office can call on Dr. Thompson; and if the prosecution needs an expert to say “anger” is normal, they can call on Dr. Roy.
Beyond the misleading and quite often unfounded testimony of these so-called “experts” in child sexual assault cases, the most disturbing facet of this kind of testimony is that it is not required in child sexual assault cases. Texas jurisprudence is well-settled that the testimony of a child sexual victim alone is sufficient to sustain a conviction. 23/ The only reason the District Attorney’s Office employs these “experts” is to bolster and vouch for the veracity of the child victim. While an en banc court in the Cohn case said this kind of testimony is permissible because it is offered to “corroborate” and not vouch for a child victim’s testimony, every criminal defense attorney in this state understands why such “experts” are used in these cases. This kind of testimony has little to do with “corroboration”—evidence which is not needed in child sexual assault cases—and everything to do with “bolstering” and “vouching.”
The Michael Serges case not only reflects the enormous difficulties criminal defense attorneys face defending these cases before a jury, but the horrendous aftermath they inflict upon those wrongly accused. We managed to save Serges from a long stint in a state prison, but the prosecution has made sure that he will never truly be a free man again. The stigma of child sexual assault is just too great.
We wish him well.
SOURCES:
1/ 257 S.W.3d 22 (Tex.App.-Houston [14th] 2008)
2/ Id., at 24
3/ Id.
4/ Id.
5/ Id., at 24-25
6/ Id., at 25
7/ Id.
8/ Id., at 25-26
9/ Young v. State, 872 S.W.2d 706 (Tex.Crim.App. 1993)
10/ 257 S.W.3d at 26
11/ Herrera v. State, 2009 Tex.App. LEXIS 4893 (Tex.App.-Houston [1st Dist] June 25, 2009)
12/ Id., at Lexis 6
13/ Id., at Lexis 7-8
14/ Id., at Lexis 9-10
15/ Id., at Lexis 10
16/ Id., at Lexis 11
17/ Briones v. State, 2009 Tex.App. 5944 (Tex.App.-Houston [14th Dist.] July 30, 2009)
18/ Id., at Lexis 2
19/ Id., at Lexis 6
20/ Id., at Lexis 7
21/ Id.
22/ Cohn v. State, 849 S.W.2d 817 (Tex.Crim.App. 1991)
23/ Tex. Code Crim. Pro. Art. 38.07; Sosa v. State, 2004 Tex.App. LEXIS 5215 (Tex.App.-Houston [14th Dist.] June 15, 2004)
By: HOUSTON CRIMINAL LAWYER JOHN FLOYD AND PARALEGAL BILLY SINCLAIR