False Allegations of Rape, Convictions Based Exclusively on Uncorroborated Testimony
By: Houston Criminal Defense Attorney John Floyd and Senior Paralegal Billy Sinclair
18 years ago Robert McClendon, then 34 years of age, was convicted and sentenced to 15 years to life in Franklin County, Ohio for allegedly raping a 10-year-old girl. Prosecutors charged that McClendon took a 10-year-old relative from her backyard and drove her to another house where he raped her. There was no physical evidence linking him to the alleged rape. The prosecution relied almost exclusively on the testimony of the child victim. The prosecution’s belief that it had the “right man” was influenced by the fact that McClendon, when he was 19 years of age, had been convicted of “corruption of a minor” involving consensual sex with a 15-year-old girl.
McClendon would have spent the rest of his life in prison. He had already been denied parole release in 2007. Parole release is nearly impossible for an inmate who refuses to acknowledge his guilt for the crime for which he stands convicted. But then in 2007 two law students, Dan O’Brien and Mike Harrington, who were working with the Ohio Innocence Project based with the University of Cincinnati Law School, were assigned McClendon’s case. They called the prosecutor’s office and learned that a pair of underpants worn by the victim had been sitting around the prosecutor’s office for years.
The Ohio Innocence Project, joined by the Columbus Dispatch newspaper, started applying pressure to have McClendon’s DNA compared to samples found in the victim’s underwear. Testing ultimately demonstrated that McClendon’s DNA did not match the DNA in the victim’s underpants.
Earlier this year two other UC law students, Megan Tonner and Courtney Cunningham, took over the case for the Innocence Project. They filed a motion for a new trial. On August 11, 2008 state District Court Judge Charles Schneider granted the motion and ordered McClendon freed from prison.
“You know, you go through times where you feel it might not happen, but you never, ever give up hope,” McClendon was quoted by Associated Press after his release. “You don’t ever use the word, ‘never happen.’ It’s not healthy.”
Closer to home.
In 1981 Charles Chatman, then 20 years of age, was convicted of raping a young woman in Dallas and sentenced to life in prison. Chatman became the 15th of a total of 17 inmates convicted in Dallas who have been exonerated by DNA evidence – the most in any one county in the United States. Altogether, DNA evidence has exonerated 33 inmates wrongfully convicted in the State of Texas – the most in any state in the country.
Chatman’s alleged victim picked him out of a photo lineup.
“But Charles has always maintained his innocence,” said Michelle Moore, the Dallas public defender who represented Chatman.
At the time of the rape identification Chatman was in jail on an unrelated burglary charge. Although he lived five houses down from the alleged victim for 13 years, Chatman said he did not know the young lady. In 2004 he applied for DNA testing under a progressive new program implemented by Dallas’ reform-minded District Attorney Craig Watkins that allows defendants convicted in Dallas to request DNA testing under the supervision of the Texas Innocence Project. But the only evidence containing DNA was a single swab taken from the victim. Testing would consume all the evidence; therefore, any inconclusive result would leave Chatman without any hope.
“This is a guy who had to face horrible decisions,” Moore was quoted by AP.
By 2004 Chatman had already spent 23 years in prison on the aggravated sexual assault conviction. He knew he had nothing to do lose. He would die in prison without the evidence being tested. He rolled the proverbial dice and the DNA testing exonerated him. A Dallas district court judge ordered him release. He had spent 27 years in prison for a rape he did not commit, making him the longest-serving inmate in Texas freed by DNA evidence.
“I never lost hope,” the 47-year-old Chatman told the AP after his release from prison. “I always believed I would get out. I didn’t know when or how, but I kept believing.”
Sixty-three percent of the more than 200 DNA exonerations in this country involve false rape allegations. The Texas Court of Criminal Appeals this past June reacted to the growing number of DNA exonerations by establishing the Texas Criminal Justice Integrity Unit charged with the responsibility of investigating and correcting weaknesses in the state’s criminal justice system.
“This is a call to action to address the growing concerns with our criminal justice system,” wrote Court of Criminal Appeals Judge Barbara Hervey. “Although we applaud all previous studies and dialogue, it is now time to act and move for reform.”
The action by the court of criminal appeals came in the wake of calls by prominent state leaders to create a statewide innocence commission. This call to action was led by Chief Justice Wallace Jefferson of the Texas Supreme Court and Presiding Judge Sharon Keller of the Court of Criminal Appeals. The demand for the innocence commission gained momentum last May following a legislative hearing in Austin where nine exonerated men urged state lawmakers to address the causes for wrongful convictions.
“There has been a realization that we have to do something and we have to keep moving on it,” Hervey concluded.
Hervey said the court will work closely with Gov. Rick Perry and state Sen. Rodney Ellis, D-Houston, and will seek guidance from various innocence projects and legal clinics in a concerted effort to identify potential problems and implement corrective measures. Some of the issues the Criminal Justice Integrity unit will address include but are not limited to the following:
Quality of legal representations for poor criminal defendants.
Improvements in witness identification procedures.
Overhauling, and creating new, standards for the collection, preservation, and storage of evidence.
Create a review process for cases of current inmates who may have been wrongfully convicted.
Appointed to the Integrity Unit by the Court, Sen. Ellis praised the court for its creation of the unit by “stepping forward and showing some leadership. We know the problems and we know some of the solutions. We can put a dent in the problem.”
Dallas District Attorney Craig Watkins was also appointed to the unit.
“They are on the right path in Austin,” Watkins said. “With 17 exonerations in Dallas and 33 in Texas, we can’t turn a blind eye to that.”
One of the issues the Integrity Unit should immediately address is the increasing prevalence of false rape allegations, especially in cases involving alleged child victims. The findings made by the following four research studies support this demand:
A U.S. Air Force study, “The False Rape Allegation in the Military Community (1983)”, investigated 556 cases of alleged rape against Air Force personnel. The study found that 27% of the women later recanted; and based on a 25-point criteria, three independent reviewers examined the remaining cases and concluded that 60% of the allegations were false. Of the 27 women who recanted, some did not admit that their allegations were false until right before having to take a polygraph test while others admitted to the falsity of their allegations after actually failing the polygraph.
Purdue sociologist Eugene J. Kanin conducted a nine-year study of 109 rape allegations made to the police in one Midwestern city. 41% of the alleged rape victims eventually recanted and admitted that no rape had occurred.
Professor Kanin conducted a follow-up study of 64 rape cases over a three-year period at two large Midwestern universities. Half of those rape cases turned out to be false – and 54% of the women making the false rape allegations said they did so as an alibi.
As we have reported previously on the John T. Floyd website, the U.S. Justice Department released the results of a study in 1996 which found that the primary suspect in 25% of the sexual assault cases referred to the FBI was excluded by DNA evidence.
In light of the findings of these studies, a former Denver, Colorado prosecutor named Craig Silverman said: “For 16 years, I was a kick-ass prosecutor who made most of my reputation vigorously prosecuting rapists. … I was amazed to see all the false rape allegations that were made to the Denver Police Department. … A command officer in the Denver Police sex assaults unit recently told me he placed the false rape numbers at approximately 45%.”
In 2004 the FBI said that approximately 95,000 forcible rapes were reported to law enforcement agencies in the United States. Based on the most conservative findings of the Justice Study (25%), as opposed to the practical experience of the command officer of the Denver Police’s sexual assault unit (45%), over 33,000 false rape allegations are made annually against innocent people in this country, primarily men and mostly African-American.
The most difficult case a defense attorney can undertake in Texas is a rape case, especially one involving a child victim. It is too easy for the prosecution to wrongly convict, sentence, and imprison an innocent defendant – and even in those cases that do not result in a conviction, a false rape allegation can destroy a person emotionally, socially and economically.
One reason for this is that a criminal defendant in Texas can be convicted for the sexual assault of a adult age female or for the aggravated sexual assault of a child under fourteen years of age based solely on the uncorroborated testimony of the victim. See: Tex. Code of Crim. Proc. art. 38.07.
Generally, in uncorroborated victim testimony cases, the prosecution will try to introduce evidence of extraneous offenses or other “bad acts” by the defendant under Rule 404(b) of the Texas Rules of Evidence to bolster its case. The prosecution understands that if the trial court improperly admits this evidence, that trial court decision will usually be considered a “harmless error” on appeal. See: Revill v. State, 2004 Tex. App. LEXIS 5654 (Tex.App.-Tyler 2004).
Nearly two decades ago the Court of Criminal Appeals in Montgomery v. State, 810 S.W.2d 372 (Tex.Crim.App. 1990) held that Rule 404(b) reflects a policy decision by the rule makers that evidence of extraneous misconduct at the guilt phase of trial having no relevance apart from inferences of character conformity is more prejudicial than probative as a matter of law, and that a trial court has no discretion to rule otherwise.
In deciding whether to admit evidence of extraneous offenses, the trial court must conduct a balancing test under Rule 403 of the Texas Rules of Criminal Evidence. This balancing test requires the court to weigh the probative value of the extraneous offense evidence against its undue prejudice, confusion of the issues, tendency to mislead the jury, and undue delay. See: Gigliobianco v. State, 210 S.W.3d 637, 642 (Tex.Crim.App. 2006).
The Court of Criminal Appeals has recognized the following factors to be considered in a Rule 403 balancing analysis: (1) the strength of the evidence in making a fact more or less probable, (2) the potential of the extraneous-offense evidence to impress the jury in some irrational but indelible way, (3) the amount of time the proponent needed to develop the evidence, and (4) the strength of the proponent’s need for this evidence to prove a fact of consequence. See: Mozon v. State, 991 S.W.2d 841, 847 (Tex.Crim.App. 1999).
When the prosecution notices the defense that it will use extraneous sexual assault offenses involving another victim, the trial court cannot assess the credibility of this witness while conducting the Rule 403 balancing test. See: Montgomery v. State, supra. Citing Wright and Graham’s Federal Practice and Procedure, the court explained:
“’[I]t seems relatively clear that in the weighing process under Rule 403 the judge cannot consider the credibility of the witnesses. In the first place, credibility is a question for the jury; to permit the judge to exclude evidence on the grounds that he thinks it incredible would be a remarkable innovation and may even be a violation of the right of trial by jury. In the second place even if the jury were not involved, in order to assess the credibility of a witness the judge would have to hear his testimony so as to assess his demeanor, know what evidence is available to corroborate his testimony, and perhaps even look at the impeaching evidence that the opponent plans to introduce. Rule 403 presupposes that the judge can determine the admissibility by assessing logical inferences at the time it is offered. If the judge were to assess credibility as well, it is difficult to see how this could be done without first hearing nearly the entire trial.’” Id., at 382.
But the courts do not always view this legal caveat as a license to allow extraneous offense evidence that is clearly more prejudicial than probative. See: Webb v. State, 36 S.W.3d 164 (Tex.App-Houston [14th Dist.] 2000) [en banc]. The Webb court confronted the extraneous offense issue in an aggravated sexual assault case involving a topless dancer. Id., at 171. During the trial, the State introduced the testimony of another topless dancer who testified that the defendant sexually assaulted in a manner similar to the crime charged. The defendant challenged the issue on appeal:
“Porter, another topless dancer who worked at the same nightclub as Baird, testified that the appellant sexually assaulted her in much the same way he was accused of sexually assaulting Baird. In describing the events leading up to her attack, Porter testified that the appellant offered her a ride home from the nightclub after she became intoxicated. According to Porter, the appellant took her to his home and told her she should sleep there for a few hours before going home to her son; after she fell asleep, the appellant got on top of her and began choking her. Porter testified that the appellant then commanded her to have oral and vaginal sex with him. She did.” Id., at 180.
The appeals court held that the trial court committed reversible error by allowing Porter’s testimony and refused an invitation by the State to find that error “harmless”:
“In Owens[v. State, 827 S.W.2d 911, 914 (Tex.Crim.App. 1992)], the only ultimate fact in dispute was whether the appellant committed the charged offense, i.e., aggravated sexual assault of a child. There was no dispute as to identity, motive, intent or any of the other exceptions listed in rule 404(b). The jury had the testimony of the appellant and the complainant, appellant’s daughter; the State then produced another of the appellant’s daughters as a rebuttal witness after the appellant denied the offense occurred. The Court of Criminal Appeals held that evidence of an extraneous offense tending to show the appellant’s ‘system’ could not assist the jury in its determination of whether or not the appellant molested the complainant except by showing character conformity in violation of rule 404(b).
”Likewise, the ultimate fact in dispute here is whether the appellant committed aggravated sexual assault of Baird. At trial, the court ruled that the extraneous offense evidence involving Porter would be admitted because it was a ‘signature type’ offense that showed ‘opportunity, plan, maybe motive, scheme . . . .’ However, there was no dispute as to identity, motive, intent or any of the other exceptions listed in rule 404(b). The State produced Porter in its case in chief for the stated purpose of challenging the ‘defensive theory’ brought out in the cross examination of Baird that she was mistaken or unsure about the events that occurred because of her high level of intoxication on the evening in question, i.e., to show the offense did not occur. Evidence of an extraneous offense against Porter in April or May of 1995, could not assist the jury in its determination of whether the appellant sexually assaulted Baird in August of 1996, except by showing character conformity in violation of rule 404(b). In other words, proof of the sexual assault against Porter served no probative function other than to show appellant as a person who commits sexual assaults in general, and, therefore, was more likely to have committed the sexual assault against Baird, an inference rule 404(b) strictly forbids.
”On this record, we cannot find that the assault on Porter has any true relevance apart from the appellant’s character or his actions in conformity therewith. Rule 404(b) proscribes the admission of such evidence. Because the trial court failed to identify any legitimate reason for allowing evidence of this extraneous offense and our independent review of the record reveals none, we find it was an abuse of discretion for the trial court to admit evidence of it.” Id., at 190-81.
After the en banc Webb decision, the Court of Criminal Appeals qualified its Montgomery per se 404(b) exclusion rule dealing with extraneous offense evidence by saying that such evidence can be presented on rebuttal to certain defenses raised by a defendant.
First, in Powell v. State, 63 S.W.3d 435 (Tex.Crim.App. 2001) the defendant in child indecency case asserted a “lack-of-opportunity” defense in both his opening statement and during the cross examination of the child victim. Id., at 439. The court said the trial court did not err by allowing the state to present evidence of extraneous offenses to rebut that defense. Id., at 438.
Second, in Wheeler v. State, 67 S.W.3d 879 (Tex.Crim.App. 2002) the defendant in a child sexual assault case asserted two defenses: lack-of-opportunity and frame-up. The court said the trial court did not err by allowing evidence of extraneous offenses to rebut the “frame up” theory because that misconduct was similar to the charged conduct. Id., at 887.
Third, in Moses v. State, 105 S.W.3d 622 (Tex.Crim.App. 2003) the defendant in a public bribery case involving a police officer asserted two retaliation defenses. First, the defendant alleged that the criminal charge was brought against him because his wife had complained about other police officers violating a tow-truck policy; second, the criminal charge was not filed against him until the wife made the charges against the other officers. Id., at 627. The court said the trial court did not err by allowing evidence of extraneous offenses to rebut the retaliation defenses.
However, the appeals court in Bass v. State, 222 S.W.3d 571 (Tex.App.-Houston [14th] 2007) followed its en banc precedent in Webb and explicitly rejected the State’s argument that Webb had been undermined by Powell, Wheeler, and Moses. Id., 576-77. In a sexual assault case involving belated sexual assault allegations made by an adult female against a former pastor for sexual abuse when the alleged victim was sixteen, the Bass court ruled that a “fabrication” defense was distinguishable from the defenses raised in Powell, Wheeler, and Moses; and, therefore, the trial court committed reversible error by admitting extraneous offenses of alleged sexual misconduct similar to the conduct charged against the defendant. Id., at 578.
More recently the appeals court in State v. Bargas, 252 S.W.3d 879 (Tex.App.-Houston [14th] 2008) qualified Bass slightly by saying extraneous offense evidence could be used in a “fabrication” defense case when that defense is laced with a retaliatory motive. Id., at 893-94. Defense counsel in Bargas, an aggravated sexual assault of a case child, presented the defense that the child fabricated the sexual assault allegations in retaliation for her step-father’s temper and physical abuse. Id. at 893. The Bargas court, however, took pains to note that it concurred with the Bass finding that evidence of extraneous offenses is inadmissible in rebuttal to a straight fabrication defense. Id., at 891, n 9.
The foregoing case law greatly restricts the options of a defense attorney in uncorroborated rape allegation cases. If counsel raises either in opening statement or during cross examination of witnesses “lack of opportunity” or “retaliation” defenses, the prosecution can rebut these defenses with evidence of extraneous offense(s) or other “bad acts.” If defense counsel presents a straightforward “fabrication” defense – what amounts to a “false rape allegation” defense – counsel must generally put the defendant on the witness stand and very skillfully navigate him through direct examination focused exclusively on a denial the sexual assault allegation. Counsel must carefully avoid asking questions about motive or lack of opportunity. He or she cannot open the door to negative rebuttal evidence on these issues if that evidence exists.
Absent an ironclad alibi defense, defense counsel is uncorroborated sexual assault case can overcome the evidentiary rule that the victim’s testimony alone is sufficient to warrant conviction through skillful cross examination of the victim designed to undermine her credibility and through the defendant’s well-prepared and well-coached testimony designed to deliver the truth to the jury. There is little, if any, room for error.
The Criminal Justice Integrity Unit would serve the interests of the Texas criminal justice system by re-visiting and recommending meaningful changes to § 38.07 requiring some corroboration of sexual assault allegations. The evidence of false rape allegations has becoming so compelling that it defies logic to permit a sexual assault conviction to rest exclusively on the victim’s uncorroborated testimony.