A Child's Word
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."
Judge Ruben Guerrero
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.
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.
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."
Another lawyer used the same word, "disheartening," and explained that among defense attorneys, there had been such hope for Guerrero. He had been a defense lawyer after all, a man active in the Democratic Party, one of the many Democrats swept in with Obama. And now, it was clear, he had contracted "black robe disease" — had gone over to the other side.
There was hope that Guerrero would recover, but in the meantime, King was advised to give up on justice in the 174th — not to argue with Guerrero, but simply to focus on the appellate record and hope for reversal.
Thenceforth, whenever Guerrero sustained an objection suppressing testimony, King would exercise her client's right to have the jury out of the courtroom and the testimony put on the record. "It was really pissing him off," King says of the judge, for what was heard challenged everything that occurred in Guerrero's open court.
Janice's stepmother testified, for example, that the rape by the gang member hadn't really seemed to her like rape at all. At four in the morning, she says, she had knocked on Janice's door and, entering, had found Janice sitting calmly on the bed, with a naked boy protruding from underneath. Only after the boy fled out the window did Janice tell her stepmother it was rape. So the stepmother had reported a rape, but ultimately concluded that Janice was merely entertaining at home. It was the stepmother's disbelief in the first rape charge that prompted her to turn Janice over to CPS and into the spiral that culminated in the second rape charge.
The trial on that count was not blown apart until just after the state had rested, when King had the jury file out once more for the testimony of Janice's sister. Officer Morrow had never interviewed her, and, protecting her sister, Jane had not told King everything. But Dunham had been good to her, Jane testified now, and her sister had lied. The first rape charge was only to explain the boy, her sister had admitted. Janice had often let boys in, Jane said, and it was actually some kid named Juan who took her virginity. As for the rape by Dunham, that had never happened either. Jane said she had slept beside Janice the whole night. They had stayed up late talking.
"Her testimony was so compelling," says King, "that the prosecutors just looked crazy and defeated." When King asked Guerrero if perhaps now the jury could hear all the evidence, a number of observers report that the judge looked to the prosecution before ruling. But everyone seemed to know that any conviction would otherwise be overturned. Byrom was willing to allow the evidence in, but would not concede defeat and insisted that it be introduced as state evidence. King had no objection. It was only important that the jury finally see who the accuser really was — a 14-year-old girl who didn't want to be in that school, who needed help and hadn't gotten it. The system had failed Janice just as surely as it had Dunham.
This was essentially King's closing statement, while Byrom, still pushing for conviction, clarified to jurors that finding Dunham not guilty would be telling a child she'd lied about sexual assault. Most of the jurors had earlier declared that a child would never lie about such a thing, but in the end, when they returned with their verdict, an observer sent a message out to the listserv: "Not F-cking Guilty!"
"The whole courthouse busted out crying," King remembers. Dunham recalls coming to his feet then, sobbing loudly, as King — who had hardly slept in two weeks, who lost weight and was involved in a car wreck — embraced him and said, "you didn't pay me enough!" Soon she was gone, away to other trials, as the defendant staggered out of the courthouse to try to recover his demolished life, and the accuser was returned to the care of her parents.
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