THE ACQUITTAL
John Floyd Secures Not Guilty After Jury Trial, Aggravated Sexual Assault of a Child younger than 14, 263rd District Court, Harris County, Case No. 1156699
A former Precinct 4 deputy accused of aggravated sexual assault of a child was found “not guilty” after three days of trial and six hours of jury deliberation. The State argued the defendant, in 2000, sexually assaulted an 11-year-old girl when he was a detention officer at the Harris County Juvenile Detention Center where the girl was detained.
After announcing their verdict, the jurors stated that they simply did not find the complaining witness’ testimony credible and accurate enough to convict the defendant for such a serious crime. The defense – led by John Floyd with the able assistance of co-counsel Chris Carlson and paralegal Billy Sinclair – presented the defense that the complaining witness’ sexual assault allegation was fabricated. This defense was supported by inconsistencies with other witness testimony and discrepancies in the prosecution’s evidence.
The prosecution supported its case with the 7-year delayed outcry testimony of the complaining witness and the testimony of a twice-convicted and currently jailed felon.
Bound by their oath to follow the law on the issue of “reasonable doubt,” jurors stated they simply could not attach any meaningful credibility to the prosecution’s case. In fact, one juror was so frustrated by the prosecution’s inept handling of the case that the juror posted a comment on the Houston Chronicle website that the prosecutor should have been jailed.
The not guilty verdict in this case follows a year of success for the John T. Floyd Law Firm in defending individuals falsely accused of sex offenses. Earlier this year, Mr. Floyd secured another not guilty, an acquittal by directed verdict, after a jury trial on charges of sexual assault in the 176th District Court of Harris County. Mr. Floyd also obtained a no-bill from a Harris County grand jury for an individual charged with sexual assault of a child in case number 111785 before the 184th District Court of Harris County, Texas. This was also a delayed outcry case. In August, Mr. Floyd obtained dismissals on two cases alleging indecency with a child, in cases 46527 and 46528, days before jury trial in the 400th District Court of Ft. Bend County, Texas.
The successful outcome in these cases was no easy matter. A sexual assault case is one of the most difficult offenses to defend against. The State need only present the testimony of the victim to secure a conviction that will almost always be upheld on appeal. These cases, therefore, are won or lost before a jury – and a defense attorney undertakes these cases with the understanding that most jurors maintain an inherent bias against defendants charged with sexual assault, especially in cases involving child victims. The prosecution routinely exploits this bias with delayed outcry testimony in child sexual assault cases, evidence of “extraneous offenses” if any are available, and with rebuttal evidence to defense theories presented by defense counsel.
But there is a “dirty little secret” about sexual assault cases too many people do not want to hear about: a significant number of the accusations made by rape victims are false. They are fabricated for any number of reasons. The John T. Floyd website has written extensively about the issue of false rape allegations. In fact, this past August our website posted the following information on this subject:
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 criterion, 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 findings of the above studies, and the practical experience of the command officer of the Denver Police’s sexual assault unit, nearly 50,000 false rape allegations are made annually against innocent people in this country, primarily men and mostly African-American.
The prosecution of the former Precinct 4 constable never should have occurred. The victim is now nineteen years of age. She did not report the offense at the time it happened. She was an aggressive, violent “street kid” who ended up in a detention facility. She ran away from home at 12 to be with a 16-year-old boyfriend. The prosecution’s own mental health expert testified that she has a long history of serious psychological disorders that have little regard for reality and is restricted by a mentally challenged IQ of 76. She was incapable of providing the jury with a coherent, detailed description of how the alleged sexual assault took place. The prosecution had to lead her with questions that barely produced “yes” or “no” answers.
It is significant that the alleged victim reportedly told her father in 2007 that she had been “raped” at the detention center by a corrections officer and this “outcry” came only after the father had pressed her hard to talk about any sexual abuse she may have endured at the facility. The father’s concern developed immediately after a statewide scandal broke about guards sexually abusing inmates in state juvenile facilities in 2007. After initially rebuffing her father’s attempts to get her to “’fess up” to sexual abuse, the 19-year-old finally told him that she had been raped. The father took this information to law enforcement authorities who, in turn, gave it to the District Attorney’s Office. The District Attorney sought, and secured, a criminal indictment against the former corrections officer.
It was a classic “rush-to-judgment” decision. The prosecutor assigned to the case has a long history of successful child sexual assault prosecutions. She has even written a book on the subject. Her “rush-to-judgment” decision was obviously impacted by the scandal involving sexual abuse of inmates in juvenile facilities. She had one of these cases gift-wrapped and served up to her on a gold plated platter. She unhesitatingly charged forward to be part of the “reform effort” to hold accountable those juvenile facility corrections officers who had sexually abused inmates under their supervision.
It was a legal “witch-hunt.” But the inherent problem with “witch-hunts” is that they ensnare more innocent people than guilty ones. That’s exactly what happened with our client. He worked at the local detention facility in 2000 when this alleged victim said she was raped. The fatal flaw in the victim’s rape allegation, however, is that male guards did not directly supervise female inmates at this facility – and all the guards who testified at trial said it would have been impossible for the rape to have occurred as described by the alleged victim.
The prosecutor knew before entering that courtroom to prosecute this case that the manner in which the victim said she was raped was highly unlikely. The prosecution interviewed guards at the facility who said events described by the victim were very improbable. Still, the prosecutor made a decision to press forward in the case knowing that its factual predicate rested on a shifting foundation; that it was more likely than not that the rape allegation had been fabricated.
For example, our client was interviewed by an investigator from Sex Crimes who investigated the sexual assault allegation. He vehemently denied the allegation at this interview, saying that he had never been alone with a female inmate. At trial the prosecutor introduced a video recording of this interview and secured permission from the court to present the testimony of another former female inmate (who is now sitting in the Harris County jail) who testified that she had once been alone with our client. The former inmate, and twice convicted felon, said our client and a former female corrections officer escorted the inmate from the detention facility to a local hospital. During this trip, according to this convicted felon, the female officer left the convicted felon alone with our client in the prison van.
The prosecution accepted this statement by the twice-convicted felon without ever once asking the former female officer if the incident actually occurred. The defense team had to track down the officer who testified that the incident described by the convicted felon never happened. The question that begs answering is: Why would a prosecutor accept the uncorroborated statement of a twice convicted felon without ever speaking to the former corrections officer? In effect, the prosecutor chose to believe without any corroboration a convicted felon at the expense of impugning the reputation of dedicated public servant. That’s outrageous!
It was that kind of prosecutorial conduct that caused the jury to find our client not guilty. The victim’s testimony was not credible while the convicted felon’s testimony was absolutely absurd. It’s little wonder why at least one of the jurors believed the prosecutor – not our client – should have been put in jail. This was not a case where a “smooth-talking” lawyer got a “child rapist” off the hook. This was a case where a defense attorney saved a client from being the victim of a politicized “witch hunt.” An innocent man walked out of that courtroom following the jury’s not guilty verdict.
And it is these kinds of cases that the Texas Criminal Justice Integrity Unit should examine. In this case a prosecutor chose to take the word of a convicted felon – one with a long history of violent psychological disorders and a mentally challenged IQ of 76 who waited seven years before even telling anyone she had been sexually assaulted – and then presented the case to a grand jury without ever conducting a meaningful investigation into the credibility of the sexual assault allegation. The decision to prosecute was nothing short of a “rush to judgment” that could have easily cost an innocent man his “life, liberty and pursuit of happiness.”
And, ladies and gentlemen, that is why you have criminal defense attorneys – to protect the powerless individual from the awesome and quite often abusive powers of the State. It would be nice to believe that criminal prosecutions today are initiated by District Attorneys solely to hold the wrongdoer accountable. But that it not the case. Criminal prosecutions today are influenced as much by political considerations, unbridled professional ambitions, and over zealous personal aggrandizement as by the societal need to hold wrongdoers accountable.
The John T. Law Firm is proud of its recent successes. Our professional commitment is effectively represent our clients. Our duty is to serve and protect the innocent. The recent not guilty verdict for our innocent client fulfilled that commitment and duty.