Victims' Wrongs: Injured parties in Harris County say plea bargains go on behind their backs
It was about 8:30 p.m. on New Year's Day when 18-year-old Taylor Brooks steered his black Camaro into an open-air parking lot in Midtown. He and his friend Evan McAnulty, who both lived a world away in suburban Cypress, had paid an attendant to park there two days before on their way to a teen night at a nearby club, and the two high-school seniors assumed they could do the same on this visit.
The attendant wasn't there this time, but Brooks found a space alongside the lot's fence and backed in. As the two teens were getting out of the car, they say a man came out of the adjoining building waving his arms and yelling, "You can't park here."
Slightly confused, Brooks turned to McAnulty and said, "Well, looks like we'll have to find a spot on the street. No big deal, I guess."
victims' rights laws
They slid back into the car. Brooks fiddled with his iPod for a moment, but when he looked up, ready to go, he claims the man was standing in front of the exit, walking toward them with a gun.
Scared stiff, McAnulty says the car remained in park while the man approached Brooks's window and jammed the barrel of the gun up against the glass, shouting, "Roll your fucking window down."
Brooks stepped on the gas. He sped out of the lot and made a right onto the street, when a trio of gunshots rang out. All three bullets hit the car door. The teens were unharmed and immediately called the cops.
It turned out that the shooter was former U.S. Congressman Craig Washington, a fiery Democrat who served until 1994, when he returned to his law practice in Midtown. Washington owned the parking lot.
Washington, who did not respond to the Houston Press for this story, has claimed that Brooks was trying to run him over and that he fired in self-defense. But four months after the shooting, in April 2008, a grand jury decided to indict the former congressman on the felony charge of aggravated assault.
The wheels of justice are oftentimes slow, and the two teens and their mothers, Debbie Brooks and Marti McAnulty, waited more than a year while the case kept getting delayed. They wanted to tell their side of the story to a jury, and made it clear to Harris County prosecutor Lynne Parsons that they didn't want to settle for a plea deal. If a jury let Washington off, so be it, but they liked their chances in court.
On the Monday morning of July 20, 2009, Debbie Brooks was sitting by her phone at work waiting for Parsons to call. Brooks says the prosecutor told her to wait there while jury selection took place and that she would ring as soon it had ended to tell Brooks to come down to the courthouse for the start of the trial. Brooks's cell phone was on vibrate, but she wasn't worried because Parsons had her work number.
At about 10:45 a.m., Debbie's phone rang. It was Marti McAnulty.
"Are you sitting down?" she asked.
McAnulty went on to say that she had just gotten off the phone with Parsons, who said that she had agreed to a plea deal with Washington that morning. Washington was admitting that he shot at the teens in exchange for two years of probation in the county's pretrial diversion program, which allows criminals to expunge their record and is used primarily for nonviolent offenders.
Stunned, Brooks noticed that she had missed a call on her cell from Parsons less than ten minutes earlier and called the prosecutor back.
"I told Parsons that it was a load of crap," says Brooks. "I told her that I was in total shock and that we needed to have a say, that we needed to know about this before it's a done deal."
Brooks ran out of her office and sped over to the courthouse, frantically looking for Parsons to see if she could stop or negate the plea deal. But when she got to the courtroom, no one was there. No one, that is, except Washington and his lawyers.
Finally, 45 minutes later, Brooks says, she found Parsons. But by then it was too late.
"The deal had already been signed and sealed behind our backs," says Brooks.
The families say the victimization didn't stop with the near deaths of their sons. Brooks claims that not only did Parsons and the District Attorney's office fail to notify her of the plea agreement, but also that the DA never allowed her son to enter a victim impact statement for the judge to consider before sentencing — all rights afforded to crime victims under Texas law.
Now, seven months later, they find themselves in the same helpless situation as all crime victims who claim their rights have been squashed. And because of the way the law is written, they're unable to do anything but suck it up.
"Defendants' rights are protected and codified in the U.S. Constitution," says Houston crime victim advocate Andy Kahan, "and rightfully so. "But today, victims' rights are a mere courtesy. It's just lip service."
It's been an uphill battle for victims' rights advocates in Texas over the past 30 years, but one that's reaped significant victories. The movement has progressed from the 1970s, when grassroots groups started trying to raise the consciousness about the impact of violent crimes, to getting statutory rights for crime victims on the books decades later.
Included among the current laws is the right for a victim to submit a statement on how the violent crime affected him and to have that statement considered by the prosecutor and the judge before sentencing or before a plea agreement is accepted, and the right, if requested, to have the state notify the victim "as far as reasonably practicable" of any court proceedings and any plea agreements presented to the prosecutor.
It is in the interpretation of these laws, however, that Debbie Brooks and the Harris County DA's office disagree.
For starters, Brooks claims that Parsons did not notify her of the plea deal ahead of time and only called her that Monday on her cell phone, shortly after the agreement was completed.
"When we talked that morning," says Brooks, "Parsons said it was a done deal and that that was it. At the very least, we should have gotten a phone call saying, 'Hey guys, they've approached us with a plea deal; do you want to take it or go to trial?' We weren't even given that courtesy. I realize that it's the state versus Craig Washington and that ultimately we don't get to decide what to do, but is the state going to testify? If my son was killed, would the state pay for his funeral or grieve for the rest of its life? I don't think so. Yes, it's the state versus Washington, but the prosecutors are supposed to act on behalf of the victim and they did not do their job."
The disagreement is over whether the DA has to tell victims about a plea ahead of time or afterward.
"There is no obligation to give advance notice to all victims of plea bargains," says Donna Hawkins, spokeswoman for the Harris County District Attorney's Office.
This reading of the law frustrates Kahan.
"I would clearly interpret cutting a plea deal to be included in the notification provision of the statute," he says. "What's the point of telling someone after it's done? That completely defeats the purpose and the spirit of the law."
The two teens' parents are also upset that Parsons apparently talked to the father of a boy who witnessed the shooting to ask whether she should accept the plea deal before she called either Brooks or McAnulty.
That Monday morning, Parsons called George McKay, whose son was near the parking lot when Washington opened fire. Parsons "called me and asked my opinion," says McKay, "and I basically told her, 'Look, my son was only a witness and my opinion is really not the one you need. You need to talk to the other parents.' I was kind of surprised."
Says Evan's father, Mike McAnulty, "What the hell was [Parsons] thinking, talking to McKay? If you have time to call him apparently before the deal was finished, why don't you have the time to call us? It's bullshit."
Parsons claims that the whole deal went down quickly and that she did the best she could. She says she was planning on going to trial that day, but Washington's lawyer offered up the deal just before jury selection.
"There were time constraints," Parsons says, "and as certain things were being worked out, I made every effort to contact both the mothers of Taylor Brooks and Evan McAnulty, and I left messages for them. I feel like I always had the best interests of the victims in mind when this plea bargain was unfolding and I felt like justice was served. And so I find this very painful, that they feel like they've been trampled on. I never had anything but their best interests in mind and getting Craig Washington to take ownership of his actions that night."
As for calling McKay, Parsons says she called all of the people that morning who were involved in the case.
When Pat Lykos took the helm of the DA's office in January 2009, one of her first moves was to beef up the Victims' Rights Division, adding additional staff and naming prosecutor Michelle Permenter as director of the operation. Permenter says that her office gets involved in cases in one of two ways: Either the victim asks for help or the prosecutor requests it. By law, her office is required to send crime victims several pieces of information, including the victim impact statement form.
Brooks says her son never got it in time.
"They sent the victim impact statement only after the plea agreement was over," she says. "We have not sent it back because what's the point? It's not like the judge can consider it now before accepting the plea."
In response, Permenter says, "We send out a large number of notifications daily. As a whole and on a daily basis, at some point is someone going to be unhappy at the end of the day? Sure, that's a possibility."
But the Brookses and McAnultys are more than just unhappy. They feel violated and betrayed.
"The DA's office needs to be more realistic and up front with people," says Marti McAnulty. "Looking back, I feel like they were trying to take advantage of people who didn't know the system. We feel we were victimized by Washington but also by our public servants."
They are not alone.
Linda was terrified. Her 14-year-old granddaughter, who was visiting other relatives in Galena Park, had gone missing. The young teen was playing in a neighborhood park when she just vanished.
Linda (not her real name) got a call from the relatives that day in mid-July 2008 and then raced over to the police station. She told the cops that her granddaughter had been taken and could be in serious danger, but they wouldn't look for her, Linda says, and instead just listed the girl as a runaway.
For days, Linda scoured the area near the park, putting up flyers and asking anyone around if they remembered seeing the girl. But no one seemed to know a thing.
On the sixth day, the teen turned up near the park and a woman who had seen her picture on a flyer called the police, who later brought her home. At first, Linda's granddaughter seemed fine. But the facade was quickly shattered when she complained about pain around her anus.
Over the next few days, says Linda, the teen told her grandmother that a stranger had kidnapped her from the park and taken her to a nearby house where he gave her drugs and liquor and sexually abused her for nearly a week. She escaped by jumping out of his car when he took her to run errands.
It took about three months, but police were able to track down her abuser, a career criminal named Javier. (The Press is withholding his last name to protect the identity of the victim.) He had been charged with nearly a dozen crimes in the previous ten years, including sexual assault on a child, deadly conduct, forgery and assault. Court records filed by prosecutors say that when Javier was 24, he was dating a 15-year-old. He could now add another charge of sexual assault of a child to his résumé.
Just like Brooks and McAnulty, Linda and her granddaughter wanted to go to trial. It was an emotionally exhausting case, and the two of them put everything they had into making sure Javier was going to pay for what he had done.
It took ten months, but the day of the trial had almost come. Or so Linda thought. She says that she talked to the prosecutor the day before it was to begin and was told to go home while the jury was being selected.
"I asked the DA, 'Are you sure I don't need to be here?'" says Linda. "I was told, 'Yes, jury selection will take all day; we'll go to trial tomorrow. Come back then.' And so I went home."
Later that day, while Linda was at her house filling out a portion of the victim impact statement, preparing to hand it in in time for the judge to read before sentencing, her phone rang. It was a policeman whom she had befriended during the case.
"The officer asked me if I was in court that morning," says Linda. "I told him no, that they were not starting until the next day. Then he said that he had just pulled the case up on his computer and saw that the case ended in a plea deal. I was in shock. How could this be? I was so furious."
Linda immediately dialed up the prosecutor, who said he had accepted a deal sentencing Javier to 15 years in prison.
"All he told me," says Linda, "was that it happened very quickly that day in court and that he was fixin' to call me."
Linda never finished filling out the victim impact statement after hearing that the plea deal was done. What was the point, she thought.
"It's not okay that they did this," Linda says. "When I had to tell my granddaughter, she said, 'I went through all of this, I told everybody what he did to me and it was embarrassing, and then when we're not even there they give him 15 years behind our backs. Something needs to be changed.' And I agree. It's been a horrible, horrible experience."
It's not only victims who feel this way.
Seth Ellerin is an attorney in Bellaire who usually only takes civil cases. He made a brief foray, however, into Harris County criminal law in the summer of 2008, and it left him with a bitter taste.
On May 6, 2008, Jermaine Roshawn Barnes pummeled Ellerin's client, Benigno Lopez. Afterward, Lopez went to the hospital, where doctors performed surgery to fix his face, which was broken in several spots. Lopez's medical bills exceeded $70,000 and he was left with permanent scarring on his head.
Police arrested Barnes and charged him with misdemeanor assault. Ellerin was hired primarily to persuade prosecutors to bump the charge up to a felony and to let the DA's office know that Lopez had an attorney and that he wanted to be kept informed about the case.
More than a month went by, says Ellerin, and he had not heard back from the prosecutors, so he delivered a letter to the DA's office asking them to contact him.
Three weeks later, Barnes struck a deal. In exchange for pleading guilty, he would receive 70 days in the county jail. Once again, says Ellerin, neither he nor Lopez was told about it.
"We didn't know about and we certainly were not present during the plea," says Ellerin on behalf of Lopez, who does not speak English. "They never told us about it afterwards either. We found out on our own, and they knew there was an interest. At the very least, on a professional level, I would have expected someone to call me. It was a sour experience."
Making matters far worse was the fact that once Linda and Ellerin felt that their and their client's victims' rights had been disregarded, there was absolutely nothing they could do about it. The law does not provide victims any way to enforce their rights after they've been violated.
"Just when we thought we were finally going to have the chance to have our say in court," says Linda, "we were blind-sided by the plea. And once it's done, it's done, and there's nothing you can do about it. It's truly unfair."
For victim advocates, getting a legal remedy on the books for victims after their rights have been walked on is akin to putting a man on Mars: It's the next great conquest, but one that probably isn't happening anytime soon. State legislators, who have the ultimate say, talk a good game, but admit that it's a tough fix.
"What do you do about accountability?" says state Senator John Whitmire of Houston, a Democrat who chairs the Criminal Justice Committee. "Well, I haven't figured it out. I don't know any other way to hold DAs accountable for anything they do other than to vote against them. There will be breakdowns, as there are in any system, but I think people are considerate of victims most of the time."
Permenter, the county DA's victim liaison, agrees, adding that the best way for crime victims in Houston to safeguard their statutory rights is to contact her victims' rights office.
Advocates concede that it would be impossible to void a plea deal, for instance, if the victim wasn't properly notified. The key, they say, is installing ways to make sure victims' rights are not violated in the first place.
"Providing a remedy after a plea has been approved is very difficult," says Susan Howley, director of public policy at the National Center for Victims of Crime in Washington, D.C., "so the best you can hope for is to prevent."
Howley and Kahan say safeguards such as requiring the judge to ask prosecutors whether the victim has been informed of a pending plea, or having a victim sign a form acknowledging that he has been informed, could go a long way to eliminating the pain and anger victims such as Linda and the Brooks family feel.
State District Judge Denise Collins, who presided over the Craig Washington case, declined to comment through a spokeswoman when asked if she tried to determine if the victims knew about the plea bargain.
While victims are afforded numerous rights in Texas, other states do a better job of protecting those rights. Nine states — Alaska, Arizona, Colorado, Connecticut, Maryland, Minnesota, South Carolina, Utah and Wisconsin — have an office or system set up to investigate and resolve victims' complaints. Texas does not.
"It seems to me," says Howley, "that if Texas had a victims' rights committee to receive and investigate complaints, then a prosecutor would not be likely to violate more than once, at least in order to avoid the hassle of having to respond and defend his or her actions."
In Maryland, the State's Attorney must certify to the court clerk that a victim was educated on victims' rights, and in Indiana, prosecutors are required to certify that they have shown a proposed plea bargain to the victims and that the victims had the chance to weigh in on the deal as part of the process, according to the National Center for Victims of Crime.
Some of the problems that victims have in Texas, as evidenced in the Washington case, have to do with how the laws are worded and interpreted. Advocates say Texas legislators need to beef up the language and make some provisions, such as notification, less vague.
Florida law, for example, clearly states that victims "shall be consulted" by prosecutors in order to get the victims' views on any disposition, including plea deals. And in Arizona, victims have the right to be heard at any proceeding, including a plea, and to confer with prosecutors "before any disposition of the case."
Kahan says he is working to get the Texas Legislature to address the issue of plea bargain notifications.
"If you're going to have victims' rights," he says, "they should be enforced, and if they're not, there should be safeguards and remedies. Right now that is not the case, but perhaps the Brooks and McAnulty case can be a catalyst to change that."
Whitmire agrees that victims should be told about a plea before the deal is cemented and that victim impact statements should be read by judges before plea bargains are accepted. He concedes that the law as written may not be perfect.
"There's not ever anything we've done that can't be improved," he says. "I think people are generally respectful of victims' rights, but if someone isn't, we ought to speak out."
For Debbie Brooks, though, just voicing her concerns isn't enough. Since there is nothing she can legally do to get her rights enforced, she is trying to make an end run. On December 31, she filed a lawsuit against county prosecutor Lynne Parsons in small claims court. It is the first time a victim has ever sued a prosecutor in small claims court for damages stemming from victims' rights violations, advocates say.
"Never heard of anything like this," says Howley. "I don't think they're likely to recover, but I'm glad they brought the action. This is the real-life impact when [prosecutors] fail to treat victims with fairness and respect."
It is true that the chances of Brooks winning are remote at best. Prosecutors are generally immune to being sued except under the rarest of circumstances. In response to the lawsuit, the DA's office, which is representing Parsons, claims that Brooks filed the lawsuit to harass Parsons and should pay for Parsons's legal expenses.
Brooks is livid.
"I have not harassed her one iota," she says. "We filed the lawsuit claiming mental anguish based on the fact that up until the day of the trial when the plea happened, Parsons told us we were going to trial. And if that was not her intention, then why put us through a year and a half of crap? We were subpoenaed, had to take time off of work, got our hopes up and had to emotionally gear up, for what? For nothing. And now they want me to pay their lawyers' fees? It just reinforces what I've thought all along about the DA's office. As long as no one fights back, they're just going to keep doing what they want, treating victims like afterthoughts. Nothing will ever change unless people stand up against the DA's office and are not afraid. I've told them I am not going away."