SUPER AGGRAVATED SEXUAL ASSAULT OF A CHILD DISMISSED
As I sit here ‘banging screw,’ listening to UGK’s “The Game Belong To Me,” I know the game doesn’t belong to me. All I did was show up late to be the closer. What I do know, is that I played the game right today and helped get a huge win. I must admit, I don’t feel like it’s appropriate to call what happened today “a win.” A win would have been justice three years ago when sensible cops and a sensible prosecutor would have determined there was no probable cause to arrest our client, or sensible judge determining there was no probable cause. So what happened?
I was hired by this attorney named Ellis, who I tried – and won – my first trial with, to be ‘Of Counsel’ to help him try a case where a mentally ill man voluntarily confessed to sexually assaulting his two-year-old niece. Ellis gets the darndest cases. The story is that when our client is 19 years old he contracts HIV from his girlfriend. Three years later, he is bit by a mosquito following Hurricane Ike. This mosquito nearly proved fatal, and it certainly ended his already tragic life as he knew it. The mosquito infected our client with meningitis, which causes the brain and cerebral spinal fluid to swell to dangerous levels. The doctors performed emergency surgery to release the pressure in his brain by implanting a shunt into his skull, and that’s when things went from bad to worse. The surgical procedure, while saving his life, caused him to have a significantly diminished capacity.
Our client was subsequently diagnosed with Cognitive Disorder Not Otherwise Specified. Symptoms of cognitive disorder include dementia, childlike behavior, and hallucinations. Pretty intense stuff. His family noticed that he would hallucinate and came up with elaborate stories that were not true – despite him thinking they were true – with a trend that his stories involved women.
Our client lived in a little house with 5 adults and 7 children. He had his own room. He was also a devout Jehova’s Witness.
One day, our client walks up to his minister and another church elder. He says he need to confess to something that is bothering him. He needs to confess that he touched his 2-year-old niece. He goes on to tell the elders that on one occasion he touched and kissed his niece’s body when she walked into his room. He says that on the second occasion, he took off the girl’s pampers and touched her vagina. He says that on the third occasion, he took off the girl’s pampers and kissed her vagina. The elders call the Houston Police Department. The police call CPS. CPS appoints an investigator to the case.
My client then voluntarily goes to speak with CPS. He gives essentially the same statement, and it is all one video.
Finally, our client voluntarily goes to talk to the police. The police used the whole “good cop bad cop” routine whereby a pretty female cop did the interview and the big male sat there silently for a long time until he literally slammed his hand down on the table and yelled at our client that he is a liar. The video made it clear that something was wrong with our client. He was excited. It looked like he was thought he was helping the officers, as opposed to dooming himself. He reminded me exactly of what my girlfriend, an English teacher to troubled children, calls her “special helpers” the really special education kids who love to help others, especially people in authority positions such as teachers and cops. He kept going on bizarre tangents. He couldn’t remember what had supposedly happened too well.
The first part of the interrogation was pretty standard and by the books as for the officer’s behavior, but the second half was way out of bounds. Randomly, out of nowhere, the male officer slams his hand, with a gold ring, down on the table yelling, “Stop! Stop Stop! Stop lying to us. We know what happened. We know what you told CPS and the minister. We know you are lying. Tell us the truth!” This was pretty curious, considering that our client’s statement was consistent with his previous statements. The male and female cop went on to tell our client to “stop lying” and “tell the truth” around 20 times in 15 minutes. These cops didn’t care about the truth. All they wanted was for our client to admit he put his penis in the complainant’s vagina. After asking several confusing questions, cutting out client off, and telling him to stop lying, our client finally admitted to inserting his penis in her vagina. The interview promptly ended. Isn’t that interesting? The cops coerced our client to provide a false confession to super aggravated sexual assault of a child, as opposed to indecency with a child – a huge difference.
You’d think that the officers would have arrested our client right then and there, but they didn’t. My guess is that they didn’t even believe his confessions, because if they did, they would have booked him. This is a theme I wanted to expand on throughout trial. Instead, several weeks passed until a warrant was issued for his arrest. In total, 4 months and 12 days passed from his first confession until a warrant was issued for his arrest.
Did he run? Did he hide? Did he ever act like a sane guilty person. No, he called the police because he heard the police were looking for him. Our client was arrested and the court set an unreasonably high $100,000 bond. He languished in Harris County Jail for three years until his trial – costing Harris County taxpayers probably tens of thousands of dollars in room, board, and medical treatment.
Guess what evidence the police was able to gather to use against our client during those three years, or even before the arrest? None. No DNA. The rape kit ‘did not confirm or deny that sex took place.’ Wouldn’t you think that if a grown man put his penis in a 2-year-old, that she would be visibly injured? The state’s hired machine gun will say anything Harris County wants her to say. The 5 adults that lived in the home, what did they say? They said that our client would not do that. They said he was never alone with the children. They said the mother or grandmother was always at home watching the children. They said he frequently hallucinated. One thing I found particularly interesting, and totally discredited his false confession to the police was that he described the hallway outside his room has being a big, long, grand hallway with many doors. I came to learn that it was an 8-foot hallway with two doors. What did the other children say? They said they love their uncle and miss him and that he never did anything wrong to them. They said it when CPS interviewed them and they said it 3 days before trial.
Jeez, the government sure had lots of evidence to go on. NOT! There wasn’t even probable cause to arrest our client.
Corpus delicti states that there must be proof that a crime was committed before a person can be convicted, and a person cannot be convicted of a crime based solely on his own confession. Most people think that a confession is the gold standard. I mean, why would a person confess to a crime they did not commit? Well, there are plenty of reason why a person would confess to a crime he did not commit. In fact, of the 250 wrongful convictions that were overturned by DNA by April 2010 about 42 of the exonerated men made false confessions to rapes and murders. Court systems have known about false confessions for hundreds of years. At least 1,536 exonerated since 1989.
In a commonly cited case that is largely attributed with creating the doctrine of corpus delicti, a wealthy man disappeared without a trace. The police assumed he was murdered and disposed of, so the police spoke to his servant. His servant confessed to murdering his boss and was executed. A few years later, “the victim” returned to town.
The Corpus Delicti rule states that there are three parts to every crime. First, there must be proof of a harm or injury; that a harm or injury occurred. Second, there must be proof that someone’s criminal conduct caused the harm or injury. Third, there must be proof of the identity of the person whose criminal conduct caused the harm. If any of these stool legs is missing, there cannot be a conviction.
The corpus delicti rule is designed, and has been used for hundreds of years, to protect the mentally ill and infirm from being convicted on their false confessions. The wiser courts and jurists recognize, as does science, that young people, people with low IQs, people who suffer from cognitive disorders, people who suffer from hallucinations and even Alzheimer’s are especially susceptible to voluntarily making false confessions. Add in leading, aggressive, suggestive, coercive, loud, physical, accusatory, lying police officers to the mix, and the mentally weak are even more likely make false confessions.
In this case, our client suffered from cognitive disorder, which includes dementia, hallucinations, and memory loss. All the government had was his three “confessions.” Everyone who knew our client said that he hallucinates. What really pissed me off was how the officers treated him.
A common police interrogation tactic is known as “good cop bad cop.” It is self-explanatory. In this particular case, the good cop was the pretty young female officer talking to my client in Spanish. The bad cop was the big male sitting client and further away from my client. After about 45 minutes, the bad cop comes to life by slamming down on the table, as described above. It was terrible. It made me jump in my seat. After calling my client a liar 20 some odd times, raising his voice, invading my client’s personal space, and asking confusing affirmative questions ending in “no” my client was coerced into saying “yes” that he did insert his penis. With that forced confession, an indecency with a child charge with a 2-20-year punishment range with the potential for probation, went to 25 to life – no probation sentencing range. Despicable.
These damn cops get tunnel vision and “know” they are right, just like many prosecutors.
Prosecutors have an ethical duty — they take an oath — “to do justice.” You don’t have to be a rocket scientist to realize not all prosecutors only seek justice. Some prosecutors seek justice most of the time, but not others. Do you think a prosecutor who is offering a felony conviction, despite not having ANY evidence, is seeking a justice? I sure as hell don’t. I think she is seeking a little insurance policy called “covering your ass,” AKA, “C.Y.A.” The name of this blog is, “Behind the Bar: Reflection on the Law, The System, And The People Who Make It (Dis)Functional,” so let’s go there.
The prosecutotrix/persecutrix really pissed me off. She really motivated me for the new year, just as I was getting tired of the struggle that is practicing criminal law. It’s no coincidence that it is the females who tend to act this way. Look who their mentors are, people like Tiffany Johnson. It’s also no coincidence that it is the more attractive female prosecutors who tend to engage in questionable conduct (I am not endorsing Ms. Johnson’s looks). So what did this persecutor do to really piss me off? Oh she just offended the entire legal system, lied to me, lied to the judge, and temporarily disregarded her ethical duty to seek justice, and instead focusing on her Harris County District Attorney’s Office duty of seeking convictions—even when there was no evidence supporting a conviction.
I hadn’t been working on this case very long, but I knew the allegations, the “facts,” and I knew the law. I knew the law cold, and I knew that there was no way in hell the government couldn’t legally win this case. Of course, judges and juries can always screw up, but those fears went away after the following happened:
I am introduced to the persecutor. As far as I was concerned, she was a persecutor, as opposed to a prosecutor, because she knew she did not have evidence against our client for three years, yet had let him languish in jail for three years. Fucking despicable. She asks if our client was going to take her previous offer of time served on felony and 10-year sex offender registration. We said no. She said, “Okay I can give you two options. The first option is 2-years-time-served to a non-registerable charge, meaning he won’t have to register as a sex offender and he goes home today. The second option is to dismiss, but if there is any new evidence, I will file new charges against him.” I say, “Okay, we’ll take it to our client.”
The persecutor offered to go back to the holdover to make the offer herself. Yeah right! Break confidentiality? Let you bully our client just like your cop did? No, we will pass! What lawyer let’s that sort of shit go down? Frightening. We then take the offers to our client. We then waited for the interpreter to help, and we did it again. We spent at least 10-15 minutes in the holdover talking to our client. He wanted the dismissal. We go back into the courtroom and I tell the persecutor that our client accepts the dismissal.
The persecutor then says, “What? I never offered a dismissal! I never offered a dismissal! You didn’t even give him the offers! You didn’t even go back there! You didn’t even tell him the offer about time served and he goes home today.” I say, “Yes we did,” and had to as the interpreter to confirm that we went back there and gave the offer considering how righteously indignant the persecutor was acting. First of all, I have an ethical duty to relay all offers to my client. Second, how dare she accuse me of lying? That’s the pot calling the kettle black if I’ve ever seen it. It tends to work out like that in Harris County. The persecutor then says, “With all due respect, I have been working on this case with Ellis for a long time, three years and….ya….” I say, “With all due respect, that’s fine. I am not offended. You made that offer and he accepted.” She says there was not offer to dismiss. I guess I am the one hallucinating now.
At this point we go back to our client’s family, who we had just told the case was being dismissed, and told them “never mind, we are going to trial.” Our client’s mother started crying. What a horrible thing to put people through. Pure evil. At this point, we go back into the courtroom and I told the persecutor we are going to trial. The judge asks what’s going on with the case. Somehow, the conversation went in the direction of competence, which is another issue, but I did not want our client sitting in jail another freaking day, so I said,
“Your Honor, the facts don’t even matter. His competency doesn’t even matter, because this is all about the law and corpus delicti. The government has no evidence at all other than our client’s confession. Nothing. Just last April, the Court of Criminal Appeals stated again that the corpus delicti rule is alive and well in Texas and there can be no conviction without proof of a crime. A defendant cannot be convicted based on his own confession alone, and no evidence that a crime was even committed.” The persecutor makes sure to correct that there are 3 confessions, as if that makes a difference. There could be 1,000 confessions and it wouldn’t matter. The judge asks, “What else do you have?” The persecutor says, “Opportunity, I can show opportunity.” I found that funny and dishonest, considering the people who lived at that home told her investigators that our client was never alone with the children. The judge asks if she has case law to support her position that showing opportunity constitutes evidence that will get her over the big hump that is corpus delicti. The persecutor says, “Yes.” In the 10 hours I researched, I never came across that case. Sounds like dishonesty to the court, not only another lie, but also an ethical violation. I’m fairly certain she was lying, considering the first thing I told her is that the issue is corpus delicti, and she said “I know.” The judge then asks how she is going to get over my motion for instructed verdict. She was silent, I think. There are judges out there who would have not even asked for case law, and who would have held that opportunity is enough. I am glad this judge was better than that.
We leave the room to talk to the family. We get back into the courtroom and the persecutrix tells us, “I am dismissing your case, but the moment I get new evidence, I will file charges against him.” Whatever makes you happy, sweetheart. If the evidence didn’t come to light during the last three years while our client was locked up on $100,000 bond, it will never come to light. Why? BECAUSE THE SEXUAL ASSAULT NEVER HAPPENED! I called your bluff. Do whatever makes you happy.
One other thing of note. The persecutor really, really, really wanted to get her offer on the record. It may have been an attempt to CYA. It also may have been, probably was, a last ditch attempt to secure a wrongful conviction that she so badly wanted for three years. It was a smart move to want to have the offer on the record, because the robed prosecutors (judges) more often than not urge our clients to accept pleas before trial. Our robed brethren are usually pretty successful at causing our clients to accept “plea deal convictions” in this scenario. I wonder how the persecutrix slept that night. I hear it’s easy to sleep with the devil when you sell your soul. I hear that our client enjoyed sleeping in his own bed for the first time in three years.
This might be a little arrogant, but I wish we could have picked that jury because (a) I really wanted tackle such a tough topic as false confessions and was very excited about using “Making A Murderer” as discussion piece, (b) I wanted to start my year with a not guilty verdict, and (c) most importantly, I wanted our client to get a free expunction within 30 days instead of our client having to wait five years for an expunction.