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.”

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.