The day before his 70th birthday last March, Eugene Ross took his customary walk to a small neighborhood park several blocks from his home in northwest Houston. The mildly retarded man has lived his entire life under the care of relatives in the Heights area. He collected trash and did yard work and other menial chores. Between jobs, "Uncle Gene," as he is known to family, would occasionally drink a beer at a nearby ice house, then sit in the park.
What happened in the park that day is in dispute. Patricia Fuentes, who lives next door, called police and claimed that Ross had exposed himself and stroked his genitals within view of her and her two young boys. Ross has no criminal record or history of sexual deviancy, and his relatives say he has never engaged in any sexual behavior around their children. They believe he was simply relieving himself in a park with no restrooms, staring blankly into space and having difficulty from a persistent urinary tract problem.
Whichever version is true, it hardly justifies what happened after Houston police arrested Ross and took him to the county jail. He was charged with exposing himself to minors "to arouse and gratify his sexual desire." Ross was shuttled between the county jail and Vernon State Hospital for the criminally insane for nearly a year, his lawyer unable to challenge the charge because Ross was deemed incompetent to face trial.
Dueling psychiatrists muddied the water. A hospital staff physician found Ross to be delusional and potentially dangerous to himself and others. A psychiatrist for the Harris County Mental Health-Mental Retardation Authority examined Ross in jail last month and found him to be mildly retarded, not mentally ill, and harmless.
"There is no evidence of dangerousness to self or others," wrote Dr. Debra Osterman. "Would not benefit from hospitalization. Likely to do best if returned to live with his niece and family."
"I think what has happened to this poor old man is close to cruel and unusual punishment," says his attorney, Jonathan Paull. "If somebody who was not mentally ill or mentally retarded came to me with the same problem, in that he 'flashed' somebody, he would be on deferred adjudication right now."
Forest Jordan, an in-law of Ross's who has employed him for years in his landscaping business, says the man's year-long odyssey through the criminal justice system is the real crime.
"No way in the world you can justify this," says Jordan. "You've got drug dealers going downtown and stay 24 hours, 90 days. C'mon. You got crack dealers being treated better than this."
Awaiting a hearing last week before Judge Mary Lou Keel, Ross was a pathetically lost figure in the court's holding cell. "Hey, get the old man," laughed one of the young male prisoners when Ross's name was called. Ross shuffled slowly to the interview window in his orange jail overalls. He was unable to explain where he was or why he was there. He simply kept repeating, "I'm going home."
He finally did, the next day. Family members put up the $500 to bail him out. Niece Lillie Haynes says the family tried to get Ross out of jail over the past year and were repeatedly told he was being held without bond, and later on $30,000 bond. Prosecutor Terese Buess says that the bond was originally $5,000. Jail records back her up, though the family would seem to have no reason to misstate what jail staff told them. Once they were notified of the actual bond amount, the family scraped together the money.
Attorney Paull believes Ross's predicament was a catch-22 situation that prevented an innocent man from confronting his accusers in court. A defense investigator questioned the woman who reported Ross to police and drew an admission from her that he could have been urinating. The witness also reported seeing Ross run across the street, and he is physically incapable of that.
"I couldn't proceed to trial and put this woman on the stand and show she wasn't telling the truth, because if he's not competent to stand trial they won't allow that to happen," explains Paull. "So they have to put him through the wringer to have him gain competency, or else have an assessment to see if he's dangerous. It's not the judge or the prosecutor's fault, but it's a flaw in the system."
Assistant D.A. Buess maintains she had a valid case against Ross. "If it were a matter of somebody just urinating and the kid walking in, then chances are this case would never have been filed this way. Filed as a misdemeanor or something. If I believed he was just urinating, this case wouldn't have gotten as far as it did." She declined to address the contradictions in the witness statements, saying the case was still in progress.
The prosecutor is also unimpressed with Ross's previously spotless past. "I deal with sex offenders day in and day out who have never been charged with anything before," explains Buess. "Because someone hasn't been charged with something doesn't mean they necessarily haven't done it in the past."
Ross must undergo one more mental examination to determine his incompetency before the court acts to close the case. Buess agrees that he is incompetent and accepts that, after Ross spent a year in jail, the case likely will end soon without his lawyer ever contesting the charge.
When a defendant is determined to be unlikely to regain competency, and that finding is not contested, the court "is going to have to cut the defendant loose," Buess says. "And that's where, in all likelihood, this case is going. We just need that final report."
Buess rejects the suggestion that a callous system needlessly punished an incompetent man for a minor violation. "My grandfather suffered from Alzheimer's, so I'm very sensitive to this kind of case," says the prosecutor. "But does that mean I turn my back on what's being described to me by the witnesses? The law doesn't permit that. The law has a way for dealing with this, a whole procedure for dealing with the mentally ill, or mental retardation."
But were the interests of justice and the public served by holding a 70-year-old retarded man in county jail and a state hospital for a year? Buess says it was the best that can be done "under the current system."
It's not surprising that attitudes were very different on 22nd Street last week. Eugene Ross enjoyed his first day of freedom, back with his family. He sat on a couch holding the hand of his younger sister Eddie Mae Sanders, who occasionally cried.
"It was hard for me," she said of the past year. "I had to keep doing what I could do to get him home. I missed him because he's the only brother I have left."
Forest Jordan figures that now the criminal justice system just wants to forget what it did to Ross. "Nobody's willing to take the blame for that, and the state sure ain't going to take the blame. They're trying to figure out a way to work their way out of this. They don't want to open the door to lawsuits or anything else."
Lillie Haynes recalls that when the police brought her uncle by the house in a squad car to check on his medications before taking him to jail, the officers told her he was being arrested "for peeing in the park."
"That's why we couldn't understand why he had to stay in jail so long when he's never been a problem," says Haynes, shaking her head. "To me, this was handled badly. They just lost him in the system."
If you have the urge to leak, stay away from the park and contact the Insider instead. Call him at (713)280-2483, fax him at (713)280-2496, or e-mail him at firstname.lastname@example.org.
Get the This Week's Top Stories Newsletter
Every week we collect the latest news, music and arts stories — along with film and food reviews and the best things to do this week — so that you'll never miss Houston Press' biggest stories.