Directly from there, she was enrolled in public school in Pearland. Doctors had recorded a history of depression, of alcohol abuse, of hallucinations, self-mutilation and suicide attempts. They had diagnosed her as a victim of child abuse, suffering from post-traumatic stress disorder and bipolar disorder with psychotic features, and they had prescribed a number of mood stabilizers and antipsychotics for her. In short, they described her as a lonely, alienated person with bizarre, unorganized thoughts, prone to act impulsively to alleviate emotional distress. And this was the girl who, on the morning of her second day in a new school, sat down with the guidance counselor and began talking about rape.
She actually mentioned two rapes. One she had already reported to police — by a gang member who had come in through her bedroom window — and had also mentioned to the doctors at West Oaks. Now, in the counselor's office, she spoke, too, of another incident, claiming that during a visit to see her sister, Dunham had taken her to his room, assaulted her and forced her to spend the night with him.
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."
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King could make no sense of this story, but it was only after investigating the alleged rape by the gang member that she thought she could prove Janice was lying. It was this information that King wanted to present to the jury, and that, after they saw it, prosecutors wished to suppress.
Te'iva Bell, a former prosecutor who assisted King during the trial, told the Houston Press that Byrom's effort to suppress evidence was the sign she was insecure about her case and should not have brought it to trial in the first place. The prosecutors themselves wouldn't talk for this story, but on defense attorney Mark Bennett's blog — www.bennettandbennett.com — a writer King identified as Byrom explained that the decision was made only after much consultation within the District Attorney's office. In the end, it was Byrom who suggested that the rape by the gang member should qualify as an example of the victim's past sexual behavior and thus, should be subject to exclusion under Texas laws governing the prosecution of sexual assaults: "evidence of an alleged victim's past sexual behavior is...not admissible, unless...its probative value outweighs the danger of unfair prejudice."
King quickly tried to explain to the judge the probative value of her evidence, that there was nothing unfair about it at all. Officer Morrow hadn't bothered to look into the rape by the gang member, but digging up the report, King had noticed a similarity between the two accounts: In both cases, the girl had claimed that her arms had been held aloft while her pants were pushed down. King wanted the jury to assess the likelihood of two events occurring in the same way. Even more significant, King wanted the jury to know that while the rape by Dunham had supposedly occurred first, Janice, in reporting the rape by the gang member, had said she'd never been assaulted before.
King believed the earlier accusation showed that a child had indeed lied about rape, and King laid all of this out before Guerrero (who also wouldn't talk for this story), along with about ten cases indicating the defendant's right to impeach his accuser. "He didn't read anything," King says. He granted Byrom's motion.
"That was our whole defense," King said later. Thrown off guard, she tried to make the most of what she had — pointing out that Dunham was looking after many children that night, that his bedroom was near the bathroom and had no door, that none of the children could recall anything similar to Janice's account.
But King says prosecutors were unwilling to let her discuss Janice's mental state. The report from Janice's stay at West Oaks included information on the other rape allegation, and so each time King attempted to question Janice about her mental state at the hospital, Byrom would object that King was encroaching on the order suppressing the first rape charge. The judge would sustain the objection, and this became the pattern for virtually every witness King attempted to cross-examine.
Dunham, sobbing quietly, understood that his lawyer was "in a gunfight with no gun." But King did not give up: "I don't just go to court to smile and giggle, know what I'm saying?" And she recalls actually pushing her chair back, telling the judge his behavior might well be looked upon as "a comment on the weight of the evidence." Guerrero seems to have been taken aback; King says he protested his innocence. By then, however, King had sent "a shout-out to my brethren" — a message over the listserv of the Harris County Criminal Lawyers Association, headlined "Unfair trial in 174th."
"I've never had a trial this unfair," she wrote. "If anyone is in the courthouse tomorrow, please come watch and give me some support."
And so they came. Some stood behind King only symbolically and afterward wouldn't give their names for this story, or wouldn't speak at all. ("Judicial retribution is a problem in Harris County," one explained.) But among them, there was agreement that this did seem to be an unfair trial. "It was just as she advertised," said lawyer Steve Halpert. "It got so bad that every time the state would make an objection, we would look at each other and mouth, 'sustained!'" And attorney Yolanda Coroy said, "I've just never seen a case that seemed so one-sided in my life. I don't know if it was an off day or just his normal modus operandi, but it was very disheartening."
