Houston Criminal Defense Attorney John Floyd Discusses False Child Sexual Assault Allegations and Defending the Wrongly Accused
In April 2008, after coming home late from a party, a Wunsche High School student told her father that she had been sexually assaulted at the party by a fellow student. The following day 54-year-old Ruben Cuellar-Romo went with his daughter to her school, and when the daughter pointed out a student as her attacker, Cuellar-Roma stabbed the male student in the chest, stomach and hand. Police quickly determined that the assaulted student, Joshua Chapa, had not been at the party and, therefore, could not have assaulted the girl. Cuellar-Roma was arrested and charged with aggravated assault and remains in the Harris County Jail under a $30,000 bond.
The case garnered extensive local media coverage, leading the evening television newscasts hyped by a number of pre-broadcast teases. The Houston Chronicle also gave the case prominent coverage. Then the alleged teenage victim, according Harris County Sheriff’s spokesman Lt. John Legg, started feeling guilty and recanted the false sexual assault allegation. The recantation story was buried deep in Chronicle. No charges have been filed against the victim.
“We are cognizant of the fact that she is young,” Lt. Legg was quoted in the abbreviated Chronicle article. “Unfortunately, the nature of her lie is very serious.”
To say that the “nature of her lie is very serious” is an understatement at best. False sexual assault allegations and “mistaken identification” influenced by police and victim misconduct are far more prevalent in this country’s criminal justice system than most people realize. Innocent men have spent decades of their lives in prison because of false or tainted mistaken identification in sexual assault cases.
In 1995 one of the nation’s largest child sexual abuse scandals erupted in Wenatchee, Washington in what Washington Times reporter Paul Craig Roberts described as “the worst witch hunt in U.S. history.” Roberts reported that parents, Sunday school teachers, and a local pastor were convicted of raping their own children and the children of other members of a reputed “sex ring.” Forty-three adults were falsely accused on 29,726 “fabricated charges of child sex abuse involving 60 children” according to Roberts.
This “witch hunt” began when a Child Protective Services supervisor told the Wenatchee office to stir up some child sex abuse cases to justify its budget. Before the hunt was over CPS was reporting that each child – some only infants – had suffered an average of 495 rapes resulting in one parent being charged with 3,200 counts of sex abuse.
“A stench of evil hung about these cases,” Roberts wrote in 2002. “[They] were trumped up by Child Protective Services officials with an eye on their budget and jobs and by a police detective, Bob Perez, with the complicity of local prosecutors, judges, and political and media establishments. My early columns were greeted with derision by the local radio station (KPQ) and newspaper, the Wenatchee World. The few witnesses in the cases, a single mother and two young girls, later recanted in sworn court documents and before TV audiences. The young girls described how they were threatened and beaten, with one apparently suffering a broken arm, by Detective Perez, who used acts of violence to coerce false accusations. One young woman described how she was kidnapped by Detective Perez and locked up in a psychiatric facility, where a ‘recovered memory’ therapist gave her mind-altering drugs in an attempt to get her to make false accusations against her parents. The state American Civil Liberties Union later verified her account.”
Armed with these staggering revelations, the news media – led by NBC News, Tom Grant a local television news reporter, and two Seattle Post-Intelligence reporters – began to unravel the false sexual abuse allegations conspiracy. CPS workers began to recant, saying they had been forced into making the false allegations. One CPS worker fled to Canada with his family because he feared arrest for refusing to go along with the conspiracy.
Wenatchee officials refused to budge. They steadfastly defended the false convictions.
“Spurred by the revelations of lawlessness in the system of criminal justice,” Roberts wrote, “the University of Washington Law School formed the Innocence Project Northwest, which has succeeded in obtaining the release of every adult victim of the false prosecutions. But spiteful public officials still refuse to return the children to their parents. None of the public officials who broke the law, tampered with witnesses and fabricated evidence in order to convict the innocent have been indicted. However, civil cases have found the city of Wenatchee and Douglas County negligent in the child sex abuse cases, and multimillion-dollar judgments have been awarded. The state Department of Social and Health Services and Chelan County have settled other civil cases with large awards.”
The Wenatchee “witch hunt” was spawned by what Roberts called a “liberal mantra that 3 out of 4 children are subjected to sex abuse by a parent, close relative or child-care provider.” It is this mantra that has led to harsh state and federal legislation in “child sex abuse” cases and created an industry of “child advocates,” therapists, and CPS “caseworkers” who are quick to turn Johnny’s football bruises or Jenny’s sensitivity to a towel touching her genital area into “child sex abuse” cases which are then prosecuted by “special units” assigned by politically-motivated district attorneys.
“These mechanisms for the miscarriage of justice are in place in every city and town in the U.S.,” wrote Roberts. “Liberals do not doubt that public officials can be trusted with power, but liberals know parents cannot be trusted with children. This misplaced confidence is responsible for the miscarriage of justice in Wenatchee. Will your community be next?”
In 1996 the United States Justice Department released the results of a study which found that as many as 20 to 25 percent of criminal defendants prosecuted in sex crimes are innocent. The first person exonerated by DNA was an Illinois inmate named Gene Dotson who was freed in 1989 after serving ten years on a false rape conviction.
False rape convictions set aside by DNA evidence have now become legion in this country. In the May 3, 2007 edition of the Washington Post, David Fears wrote about the 200th person exonerated by DNA evidence. His name is Jerry Miller. He spent 25 years in the Illinois prison system for a rape he did not commit. He was the victim of a “mistaken identification.” The newspaper’s analysis of the 200 DNA exonerations found that 60 percent of the exonerated inmates were black or Hispanic; and that of those exonerated in rape cases, 85 percent were black men who were convicted of raping white women.
These troubling facts do not paint a pretty picture about the state fairness and equity in the nation’s criminal justice system. Have the demands by law-and-order advocates so intimated and politicized the justice system that a “witch hunt” rush to judgment now controls the system? The following 2008 sexual assault exonerations certainly support the notion that it has:
In January 2008 a North Texas custom homebuilder named Douglas Buchar was acquitted of aggravated sexual assault of a child. Two years before Buchar’s 12-year-old adopted daughter accused him of sexual assault. Child Protective Services immediately picked up his two other children from school and placed them in foster care. In the wake of the sexual allegation, Buchar and his wife also lost their home and business. During the trial, Buchar faced the false accuser. “Looking at her in court and what not, it was just, she had no clue what she has caused, nor do I think she really cares what she has caused. Yes, we do feel sorry for her.” The couple now faces a daunting task of having their biological children returned to them. Attorney Kelly Davis is working on that issue. “I think that Doug was able to prove to everybody else that he was innocent by performing all the different types of polygraph and tests that they required … in order to prove his innocence,” Davis said.
While Douglas Buchar was being acquitted, Rickey Johnson was released on January 14, 2008 from a Louisiana prison after serving 26 for a rape he did not commit. “Rickey Johnson lost more than a quarter of a century, nearly his entire adult life, to a wrongful conviction. He had three young children when he was arrested, and a fourth was born shortly after he was incarcerated; all of those children are now adults, and he has grandchildren he’s never met,” said Vanessa Potkin, the Innocence Project Staff Attorney representing Johnson. “Rickey Johnson’s long nightmare will be in vain if we don’t learn from it and make sure other people in Louisiana have access to DNA testing that can prove their innocence.” Not only did DNA evidence exonerate Johnson but led a match of another man named Carnell McNeal who was already in a Louisiana prison for a rape committed at the same apartment complex nine months after the rape Johnson had been wrongfully convicted of committing.
In April 2008 an inmate named Thomas McGowan became the 25th person exonerated by DNA evidence in Texas. Twenty-three years ago McGowan was convicted of rape in Dallas County and sentenced to two consecutive life terms. “Thomas McGowan was in his mid-20s when he was arrested, and he’ll turn 50 later this year. He has lost nearly his entire adult life to a wrongful conviction that could have – and should have – been prevented,” said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law. “This is the 25th case in Texas where DNA proved that eyewitness identification was incorrect. How many more people need to lose years or decades of their lives before the state implements simple reforms that are proven to make eyewitness identification more accurate?” The police “pushed” the victim into identifying McGowan. “Just a few simple words can change everything. In this case, a few words from the police officer administering the lineup cost Thomas McGowan 23 years of his life,” Scheck said. “The officer forced the victim into certainty when she wasn’t sure whether Mr. McGowan was the perpetrator. While we sometimes hear of outrageous lineup procedures, improperly pushing a witness into certainty is much more common.”
On May 21, 2008 a Michigan inmate named Walter Smith, who had been wrongfully convicted of a 1982 Detroit rape, was exonerated by a wide range of evidence. “For 26 long years, Walter Swift has held onto hope that the truth would finally come out and he would be exonerated. Today, his unimaginable nightmare is ending but he is just beginning the long road to rebuild his life,” said Barry Scheck. “He was convicted based on a deeply flawed and completely unreliable eyewitness identification. Even at the time of his trial in 1982, there was convincing evidence that he was innocent, but his court-appointed attorney failed to present that evidence.” Smith was denied parole five times since 2000 because he would not admit to guilt.
On May 27, 2008 Dean Cage was released after spending 12 years in the Illinois prison system for a rape he did not commit. Dean became the 24th innocent person exonerated by DNA evidence in the state of Illinois. Cage was convicted for the November 1994 rape of a 15-year-old girl based exclusively on the victim’s mistaken identification. The identification procedures were handled by the detective who conducted the investigation, and research by the Innocence Project has shown that this procedure enhances victim misidentification in sexual assault cases.
An attorney defending a client charged with a sexual assault offense, particularly one involving a child victim, must understand both the alleged offender and victim. Any defense in such a case requires extensive investigation and planning in order to develop a successful defense. It is a difficult, awesome responsibility. Writing in the IPT Journal (Vol. 2, 1992), attorney Joel Erik Thompson observed:
“Is there any crime worse than murder? If the feelings and emotions of the community (hence the pool from which jurors are chosen and to which the media appeals) provide any indication, the answer to the question is a resounding ‘Yes.’ If you are not convinced, at your next social gathering casually mention that you are defending someone accused of child sexual assault. The predictable response is for listeners to wrinkle up their noses and state with disgust, ‘How can you represent such scum?’ If your reply is, ‘Because my client is innocent,’ anticipate your listeners will respond, ‘Oh, sure,’ with obvious disbelief. Had you told these same listeners you were defending someone charged with murder, a predictable response would be, ‘That sounds really interesting. Tell me about the case.’
“This is not intended as an accurate, scientific assessment of community attitude, but merely an illustration of the substantial biases, rigid ideation and deep-seated emotionalism that surround allegations of child molestation. What can you say in defense of a person who forces or coerces a child into sexual activity? How loathsome for an adult to misuse and abuse a child’s naiveté, trust and love merely to satisfy a lustful urge. Yet consider the converse. How terrifying, frustrating and disillusioning must it be for an innocent person to be accused of such conduct, particularly so when the accused is a teacher, stepparent, neighbor or other person who has extended himself to care about, love and counsel a troubled child. Is there a more malicious way to violate the Ninth Commandment and bear false witness against a person?”
The inevitable question arises: how can a false child sexual abuse allegation be made? Thompson answered this question by listing the kind of people involved in the making of such allegations:
The malicious and hateful may include a spiteful neighbor who maliciously reports that the person3 next door molested an infant by “touching” its genitals, knowing the report is false (medical examination would detect no signs to either corroborate or rebut such an allegation).
The emotionally driven may include a vengeful spouse frustrated by custody/visitation arrangements in a divorce who alleges molestation of the child by the other spouse hoping to terminate a spouse’s contact with the child. It may include a 14-year-old stepdaughter who resents mother’s new husband because “he broke up Mom and Dad’s marriage,” because he has assumed the role of household disciplinarian or because “nobody ever asked me if it was okay for him to move into our family.”
The well-intended but misguided may include the teacher, medical professional, detective or other who relies on training, reading and observations to reach conclusions that are correct.
The unskilled or inept include those who incorrectly presume a child’s actions or sexual interest result from being victimized, as well as those who unintentionally “create” molestation reports by unskillful questioning of a child or improper identification techniques. It is not just defense lawyers, or their experts who are concerned about this problem. Responsible police and social welfare agencies share the concern for objectively gathering the facts before reaching conclusion and for protecting the true victim.
It can reasonably be speculated that the jury was not impressed with the testimony of the stepdaughter who lied against Douglas Buchar. But that was the exception, not the rule. The rule is that testimony by sexual assault victims, especially pre-teens, is powerful and is the only evidence needed in states like Texas to secure a criminal conviction. In October 2004 a California Superior Court judge ordered the release of Peter Rose who had served 10 years for the sexual assault of a 13-year-old Lodi girl. Rose was an acquaintance of the victim’s family. The victim initially told police she had been raped by a stranger, but later said her assailant was Rose after the victim’s aunt suggested he was her attacker. The aunt had longstanding “personal problems” with Rose. During an initial police interview following the aunt’s suggestion that Rose had been the assailant, the victim said he “might” have been the attacker. By the time of trial, the young victim was “positive” that Rose was the man who raped her. The North California Innocence Project at Golden State University School of Law in San Francisco, however, managed to secure DNA testing that proved Rose was innocent and had been falsely accused by the young victim because of “personal problems” victim’s aunt had with Rose.
It doesn’t take much for a man to be wrongfully charged and put to trial on false sexual assault allegations. Just two years ago a Connecticut Superior Court judge awarded $3.5 million in damages to Ajai Bhatia against a former fiancée who was falsely accused him in 2001of sexually abusing their four-year-old daughter. While a criminal court jury acquitted Bhatia of the false allegations, the charges cost him a $100,000-a-year engineering job, his home, and tens of thousands of dollars in legal expenses. The Hartford Courant on July 2, 2006 reported the following on the case:
“It was a bittersweet victory for Ajai Bhatia [who] was escorted out of his engineering job at the Shelton office of Pitney-Bowes in handcuffs, accused of being a pedophile, on Dec. 26, 2001. He spent four days in jail. He endured a long criminal trial, was acquitted of sexual assault charges resulting from his fiancée’s complaint and has been the subject of multiple child-abuse investigations involving the state Department of Children and Families.
“But the whopping monetary award is little solace to Bhatia, who acknowledges that he will probably never recover anywhere near that amount from his former fiancée, Marlene Debek of Bridgeport. And he remains distraught over the damage the accusations have caused in his relationship with his daughter, now 9.
“After Bhatia was acquitted of the criminal charges in 2003, he filed a malicious prosecution lawsuit against Debek. Connecticut law allows individuals to sue their accusers in a criminal matter if they can prove the accusation was baseless and made with malice.
“In a ruling in that lawsuit earlier this month, Superior Court Judge Julia L. Aurigemma found that Debek had no probable cause to accuse Bhatia of a crime.
“‘She did so with malice in that her motive was to harm the plaintiff and keep him from having any contact with their daughter,’ Aurigemma wrote.’In the custody battle, Ms. Debek used the claim of sexual abuse as the final weapon in her arsenal against Mr. Bhatia when her other weapons, false-claims of physical violence and danger of [his] flight to India, were not effective.’
“Aurigemma awarded Bhatia $2.5 million in damages for his emotional distress, loss of reputation and humiliation, which the judge said was ‘staggering.'”
Michael G. Brock, who operates a Counseling and Evaluation Services in Michigan, has written extensively about false allegations of sexual abuse in such child custody cases. He said these cases generally begin with a custody dispute between the parents during or after the divorce proceedings. The allegation of sexual abuse is usually made by the parent with custody of the child. Child Protective Services enters the picture and conducts interviews with the alleged child victim. Absent any physical evidence of abuse, CPS does not take any affirmative action other than suggesting that the child receive therapy. Additional reports of abuse are then made to CPS. More interviews are conducted. This time the child is referred to a hospital where medical examinations are preformed for physical evidence of sex abuse. These examinations can often produce misleading evidence such as “hymeneal irregularities” or “findings of past trauma.”
“But the urologist with whom I confer on these cases tells me that the smallest amount of pressure on a child’s hymen is sufficient to rupture it,” Brock says.
In most instances, however, there is no real evidence of sexual abuse. Some doctors, however, will put a qualified conclusion in their reports saying that the lack of physical evidence does not mean sexual abuse did not occur. This effectively puts the issue of abuse back with the child victim alleging she or he has been sexually abused.
Medical personnel conducting any sexual abuse examination must report the matter to the police. This initiates the law enforcement investigation. The investigation starts with one or more interviews with the alleged child victim, leading investigators to draw their own conclusions. The investigators will then ask the accused parent to take a polygraph, even though such evidence is not admissible in court. If the accused parent is represented by counsel at this stage, counsel will advise either for or against the polygraph depending upon the factual circumstances. The investigators will frequently lie to the accused parent telling him that he failed the polygraph when, in fact, he passed it. At this point the investigators want a confession. Courts have held that it is permissible for the police to lie to a criminal suspect in order to obtain a confession.
Once the police complete their investigation, they turn the evidence over to the district attorney’s office where the decision is made to bring charges or dismiss the case. The accused parent’s innocence is not the prosecutor’s primary concern. The prosecutor’s concern is whether or not he or she can secure a criminal conviction. Prosecutors often seek convictions, not innocence. Some are so committed to this prosecutorial objective that they will knowingly use perjured testimony, suppress mitigating evidence, fabricate evidence, and even manipulate forensic evidence to secure a conviction.
Michael Brock offers the following suggestions in false sexual abuse cases:
The accused parent, or any accused person, must take the allegations very seriously. These allegations obtain a life of their own. The Douglas Buchar and Ajai Bhatia cases illustrate this point quite clearly. There is an official desire to investigate, prosecute, and convict in cases where child sexual abuse is alleged.
Hire an attorney experienced in handling child sexual assault cases. The primary objective of the accused should be to convince the attorney of his/her innocence. Attorneys have personal feelings about the need to protect children from abuse. If the accused is guilty, he/she should make sure the attorney is aware of this guilt. Never lie to the person who has your life in his/her hands.
The attorney should explore the need to arrange a “videotaped forensic interview” with the alleged child victim. This interview should be conducted by the protocol adopted by the state where the offense occurred. If the charging state does not have an adopted protocol, the attorney should secure an interview from a nationally recognized researcher in the field of child interviews. This investigative procedure may necessitate an order from the court.
“The biggest threat to any innocent client is the treatment professional,” Brock says. “Typically, they have the least training in forensic procedures of anyone involved, and their recommendations tend to carry a lot of weight with the court…Treatment professionals are legally very unsophisticated people. The notion of due process of law and constitutional guarantees of a fair and impartial trial hearing, or that their role in that process is influenced as much (and usually more) by what the presenting parent has said as it is by what the child is telling them, usually never occurs to them.”
The attorney should investigate the laws governing access to treatment records. Some states permit parents to have access to their child’s records whether he/she has custody or not. These records will reflect the number, intensity, and depth of interviews conducted by a therapist. These records will also reveal what, if any, input the accusing parent has had in the treatment process. Some therapists will allow the accusing parent direct access to the interview and counseling process.
The attorney should determine whether there is a need to hire a forensic mental health expert to examine the state’s case for possible weaknesses or factual errors. Some attorneys do not have the skills to know what to look for in sexual abuse case records. Brock suggests that an attorney consult “Investigative Interviews of Children” by Michael Lamb and Deborah Poole and “Jeopardy in the Courtroom” by Steven Ceci and Maggi Bruck. These researchers outline what they consider are “proper evidence and interviewing techniques.” Brock also recommends his own website, www.michaelgbrock.com., and articles available on the “Truth in Justice” website.
These suggestions are important for an attorney representing a client in Texas for any child sexual assault allegation. The testimony of the child victim alone is sufficient to support a conviction for aggravated sexual assault. Texas Code Criminal Procedure, Article 38.07. Texas courts are required to give “wide latitude” to the testimony of a child sexual abuse victim. See: Villalon v. State, 791 S.W.2d 130, 134 (Tex.Crim.App. 1990)[en banc]. The victim is not required to give a precise description of what happened to her or express herself with the level of sophistication as an adult. Id. And there is no requirement that the child victim’s testimony be corroborated by medical or physical evidence. See: Sauceda v. State, 2005 Tex.App. LEXIS 6001 (Tex.App.-Corpus Christi 2005).
Facing these strict evidentiary rules, a criminal defense attorney in Texas has a difficult task surmounting false sexual assault allegations. But it can be done with proper investigation, pretrial planning, and a defense strategy for the trial. The key is investigation and planning.