Another Not Guilty: Client Falsely Accused of Indecency with Child Acquitted After Trial by Jury
By: Houston Criminal Defense Lawyer John Floyd
Every prospective juror summoned to court for jury duty in a criminal case is questioned by counsel for the State and defendant as to his/her willingness to follow the law as given by the judge at the conclusion of the trial. A prospective juror who cannot, for whatever reason, state unequivocally that he/she will follow the law is excused for cause. Thus, a juror accepted by both the defense and the State for jury service has a solemn duty bound by a sworn oath to follow the law.
Myself, and Co-counsel Christopher Carlson, recently faced the dilemma of a recalcitrant juror who decided several hours into jury deliberations that she no longer wanted to participate in the proceedings. We were trying a particularly difficult indecency with a child case based on the allegation by a thirteen year old girl who charged that our client had inappropriately touched her during a recreational outing. The teenager had been sent to stay at our client’s residence while her mother recuperated from a serious illness. After her father picked her up at the residence, and as they drove home, the teenager reportedly told her father that our client had touched her inappropriately during her weekend stay at his residence. The father conveyed this information to his wife and together they contacted the police.+
This case from the very beginning was a classic “he said, she said” case. It did not matter to law enforcement that our client was a law-abiding citizen with impeccable community credentials, who was known to be a decent, caring family man.
Unfortunately, Texas law is quite clear that the testimony of a child alone in a sex case is sufficient to support a criminal conviction. 1/ In fact, the statement the 13-year-old made to law enforcement, standing alone, was sufficient legal evidence to support a criminal conviction against our client. 2/ The State need not proffer medical evidence, forensic evidence, or corroborating testimony to support the victim’s testimony. “She said” evidence is all that is needed to not only bring about a criminal indictment but a conviction as well.
While the Firm has enjoyed a long string of success in sexual assault cases in recent years, each case is different. Therefore, extensive “feet on the pavement” investigative leg work, a comprehensive motion practice, thorough pretrial legal research of every possible issue in the case, exhaustive trial preparation and focused jury selection with a specific defense strategy in mind are absolutely essential in these “she said” evidence cases.
It took over a year to bring our client to trial. We had an imminently fair judge and we squared off against two very professional prosecutors. The parties selected a 12-person jury, with one alternate, a jury that we were comfortable with. The trial testimony in the case, both for the prosecution and defense, went quickly. The prosecution called the thirteen year old girl to the witness stand who testified about the inappropriate touching. Her father and mother were also called by the prosecution. They vouched for their daughter’s good character, especially that she always “told the truth.”
Two law enforcement officers were also called to give credence to the story. However, the defense made quick work of these officers. On cross examination, the first, a county deputy, testified that all she did was compile statements from the girl and her father, summarize them and pass the case along. Hardly a CSI style investigation.
The second officer admitted on cross examination that when he found out the Defendant had hired a lawyer, me, he figured the Defendant was guilty and all he did was make a phone call to the girl and her father to confirm their statements. He then passed the case to the District Attorney’s Office, confident he had done an excellent investigation. After cross examination, he felt differently.
Essentially, all the State of Texas had were the statements of the girl and her father. No other investigative work was done on the case, none at all. The defense, on the other hand, called two fact witnesses—one a day laborer and the other an individual who worked in federal law enforcement—who were at the scene at the time of the alleged inappropriate touching. They both testified they did not see, or suspect, anything out of the ordinary. Interestingly, our law enforcement witness was noted in the girl’s written statement to the police but not interviewed by investigators because they did not feel it merited any attention. Again, this was an oversight he regretted on cross.
The girl’s grandmother and two brothers also testified as reputation witnesses for the defense. They testified the teenager was a “drama queen” who repeatedly told lies and could not be trusted.
After both sides made forceful closing arguments, the case went to the jury. The trial judge permitted the alternate juror to go home but did not release him from his duty. After several hours of deliberations, the jury foreperson informed the judge that the jury was hopelessly deadlocked; that one juror had stated a firm position that she no longer wanted to participate in the proceedings. In her words, she “didn’t want any part in the process.” Neither the defense nor the prosecution initially knew what to make of this sudden bizarre turn of events. The first scent of the situation smelled of a mistrial. The jury had been out for 6 ½ hours and the judge had already given them two Allen charges admonishing the jury that another trial would likely happen if they could not reach a verdict.
The judge then personally questioned the recalcitrant juror but only after he instructed her not to make any statement, one way or the other, about her position in the case. After asking the juror some probing questions, the judge finally excused her for cause, with the agreement of the parties, when it became evident that, for whatever reason, she would not fulfill her legal responsibilities as a sworn juror. The agreement to proceed was a bold move by the defense. We could have walked away with a mistrial, and the chance to fight another day, but we decided that we had presented a good defense, had delivered a firm closing argument, and, most importantly, we trusted the jury we had picked and felt good about the alternate juror.
While the juror situation was bizarre, it was by no means unforeseen. In fact, in 2007 the Texas Legislature amended Tex. Code of Crim. Pro. Art. 33.011 to address this very problem:
“Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury renders a verdict on the guilt or innocence of the defendant and, if applicable, the amount of punishment, become or are found to be unable or disqualified to perform their duties or are found by the court on agreement of the parties to have good cause for not performing their duties. Alternate jurors shall be drawn and selected in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges, shall take the same oath, and shall have the same functions, powers, facilities, security, and privileges as regular jurors. An alternate juror who does not replace a regular juror shall be discharged after the jury has rendered a verdict on the guilt or innocence of the defendant and, if applicable, the amount of punishment.”
In our case, both sides agreed there was good cause to excuse the rogue juror who abruptly decided she could no longer participate in the proceedings. The judge then recessed, informing the remaining jurors that the alternate juror would be returned to court the next morning and that they would begin deliberation anew.
While the defense toyed with the notion of moving for a mistrial, a couple critical factors counseled against it. Most importantly, the client was opposed to a mistrial because he was psychologically prepared for an up or down decision. He believed we had picked a good jury, had presented a strong case and delivered a decisive closing argument. We also believed we had seated a fair jury, who had seen the same facts as us, and felt confident they could be fair and follow the law. (Recent case law has also held that a defendant is not harmed by any error a trial judge may commit discharging a juror on the basis of the juror being unable or disqualified to serve within meaning of Art. 33.011 and replacing the juror with an alternate juror when the trial record does not disclose any taint from the substituted juror.) 3/
Locked into the decision not to move for a mistrial, the defense team went to court the next morning with emotions concealed and breaths held tight. Then, to the surprise of all, the rogue juror showed back up in the courtroom to watch the outcome of the trial. The alternate was accepted and joined the other 11 jurors in deliberations. The rogue juror sat with the alleged victim’s family, taking a seat directly behind them, to await the verdict.
Seeing the excused juror’s seating choice, it was difficult for the defense team to contain its anticipation and borderline delight. The rogue juror had apparently voted “guilty” which ran against the vote of all the other jurors. We reasoned, that since the rogue juror could not, or would not, change her vote to “not guilty,” she decided to declare she would no longer participate in the proceedings; that she would not be a party to a “not guilty” verdict. Well, so we hoped.
This reasoning proved correct when the reconstituted jury returned a “not guilty” verdict after another hour and a half of deliberations. In post-verdict discussions with the jurors, the defense team learned that the rogue juror decided the “indictment” alone was sufficient evidence of guilt; that our client must have done something wrong for the grand jury to indict him; and despite the judge’s charge that the indictment was only an accusation and that the defendant is still presumed innocent, the rogue juror would not change her mind that the indictment was sufficient evidence of guilt.
The defense team also learned that the jurors uniformly believed the alleged victim had testified truthfully, or at least she “believed” she was testifying truthfully, but it was not convincing enough to overcome the “reasonable doubt” the defense had created with its witnesses and the devastating cross examination of the investigating officers. Those sentiments were particularly reassuring to Chris and I who had thoroughly prepared a strong defense that, at least in this case, the victim’s testimony alone was not sufficient to overcome the reasonable doubt presented through our witnesses.
In these “she said” alone evidence cases, a defense attorney must find a way to attack the credibility of the “she said” witness. Unchallenged, the jury can, and normally will, believe her uncorroborated testimony. But, be very careful, the lawyer that unreasonably hurts a child on the stand will hurt the client, so tread lightly, cover your ground and move on.
This case underscores the basic premise of our Firm: Preparation and strategy are the keys to any successful outcome in a courtroom. A strategy without preparation means nothing, and more often than not, produces a negative result. We are committed to pretrial preparation – regardless of whether it is the exhaustive investigation of the facts, legal research associated with motion practice, or the strategy the defense team decides on for the trial itself. Preparation, and more preparation, does not allow for taking anything for granted. We were not lucky in this case; we were prepared.
1/ Rankin v. State, 872 S.W.2d 279 (Tex-App.-Houston [14th Dist.] 1994, pet. ref’d)
2/ Sodorff v. State, 2003 Tex.App. LEXIS 9974 (Tex.App.-Houston [14th Dist.] Nov. 25, 2003).
3/ Sneed v. State, 209 S.W.3d 782 (Tex.App.-Dallas 2008)
By: Houston Criminal Attorney John Floyd