A Child's Word

When the charge is rape of a minor, a fair trial can be hard to come by.

When the victim showed up at the door, on a fall morning in 2006, nearly everyone wanted to help her.

She was 14 years old and told the guidance counselor at the Ninth Grade Center in Pearland that "she just did not want to be here," that "it was too hard" and "she wanted to vanish." She mentioned that she had hurt herself in the past. She also said her uncle had molested her once. She had never told anyone, she said, but it happened in the summer of 2005, during a visit to his house.

As the girl remembered it, she corrected herself: "Her uncle did not molest her; he actually raped her." Also, "she did not lose her virginity; he took it from her."

When defense attorney Vivian King presented evidence that the child
was probably lying, she says prosecutors let her know that "kids don't lie about sexual
Daniel Kramer
When defense attorney Vivian King presented evidence that the child was probably lying, she says prosecutors let her know that "kids don't lie about sexual assault."

The counselor interrupted the session to alert police. Police quickly arrested the uncle, and Brian Dunham, a 32-year-old, black telephone repairman with no criminal record, was soon deposited in the Harris County Jail.

When he bonded out, he found that he had lost his job and was the shame of his office and neighborhood. Dunham recalls that his first attorney (who didn't return a call from the Houston Press) advised him just to plead guilty. Why fight it? It was Dunham's word against a child's, he pointed out — and everyone would believe the child.

Even as Dunham protested his innocence, his attorney continued to encourage him to plead, "and it was at that time," Dunham says, "I knew he was not the attorney I wanted to represent me." Only when Dunham fired him and hired a lawyer named Vivian King did his free fall toward prison meet resistance. King was soon engaged in one of the most difficult cases of her career.

Looking into the matter, King discovered that police had hardly investigated at all. An Officer Ben Morrow (who also didn't return a call from the Press to HPD public affairs) had not looked into the girl's past, nor interviewed any witnesses. He had arrested Dunham solely on the basis of the child's word, and King soon found evidence that the child was probably lying.

When she showed this evidence to prosecutors, she assumed they would drop charges. But assistant district attorneys Celeste Byrom and Traci Bennett let King know that "kids don't lie about sexual assault." Regardless of what King's evidence showed, they intended to take the case to court. King couldn't imagine how they hoped to win, but believed that everything would work out, in a fair trial.

And then on the first day, in late February, in the 174th State District Court of new judge Ruben Guerrero, Byrom began asking prospective jurors, "Do you think a teenager would lie about sexual assault?" King immediately objected that the state was attempting to select jurors who would be committed against the evidence before hearing it — and King was startled when her objection was overruled.

And then, after the jurors were empanelled, Byrom motioned to suppress much of King's evidence. Again, King strenuously objected, and again the judge overruled her objection and granted the motion.

Guerrero overruled most of her objections, she noticed, and sustained virtually all of the state's. She says he smiled and flirted with the "pretty blonds" ("You sure look pretty today," she says she heard him say to prosecutor Bennett), and only frowned at King, a black woman in her fifties. As the defense she had planned was almost entirely shut down, and as her client began quietly to weep, King came to believe that the judge, too, was in sympathy with the child, or at least with the state. King's reaction? "I was surprised he would do me that way," she said, "because everyone knows I'm a fighter."

Harris County has a documented history of sending innocent people to prison, and what links all of those who have been recently exonerated is the original charge of rape. Observers say the system tends to respond uniquely to rape, that law-enforcement officials are usually motivated to lock a rapist away, even as they may be reluctant to risk further insult to the victim with a close inspection of facts.

This dynamic is especially strong when the victim is a child. In Dunham's case, King grants that it wouldn't have been right to "break the child down" in an interrogation. At the same time, she says, "don't just ruin a man's life without investigating."

Her own investigation revealed no pedophile at all, but only a very complicated family situation. Dunham's half-sister and her husband were both in and out of prison, with their four children moving in and out of foster homes. King explained that "foster kids are not like normal kids" and that Dunham "walked into a mess" when he agreed to take one of these children in — "Jane," let's call her.

His accuser was the sister of this girl — call her Janice — and lived with her father's wife. Both girls would get into trouble, and Dunham thought it would help to spank Jane and also that he was helping in the other household by occasionally spanking Janice as well. Ultimately, in February 2006, Janice's stepmother chose to return her to Children's Protective Services, and over the next seven months, Janice would be reclaimed by her mother, taken back by CPS, placed in another foster home, returned again to CPS and finally admitted into West Oaks mental hospital.

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