The woman's lawyer, Kevin Michaels, confirmed that she was willing to testify and waiting outside the grand jury room June 17, but was not called by the prosecutor. (*The Harris County District Attorney's office, meanwhile, maintains it was ultimately the grand jurors' decision not to hear from the alleged victim. See update below.) She has maintained that she has no memory of the driver, Duncan Eric Burton, bringing her to his apartment the night of January 27, after she went to a Midtown club. According to a police officer's affidavit, Burton said the woman "appeared to be intoxicated, crying, and ill," and that he witnessed her vomit for approximately fifteen minutes. Burton said he decided to take her to his home after she was unable to tell him where she lived. (The address on her driver's license was old). Burton told police he had oral, vaginal, and anal sex with the woman. But the woman told police she had "no memory of a cab ride, any sexual activity," no memory of Burton himself, and was "unaware any sex acts were occurring and did not consent in any manner."
"[She] wasn't even able to give the guy her address," Michaels told the Houston Press Monday, "that's how bad off she was. So I don't know how...a grand jury could have figured out that she consented to having sex with the guy, when she can't even tell him where she lives."
But Burton's court-appointed lawyer, Robert Scott, told the Houston Chronicle that witness statements were inconsistent.
"We helped fill in a lot of the blanks," Scott told the paper. (We left a message for Scott and will update if we hear back).
Michaels said that no one at the Harris County District Attorney's Office would tell him who testified, or explain why the alleged victim wasn't called.
Burton, who was released from a Beaumont federal prison in 2012 after serving 14 years for drug-related charges, was not registered with the City of Houston to drive an Uber vehicle. Court records in Mecklenburg County, North Carolina, show that he was charged in 1997 with indecent liberties with a child and first degree sex offense of a child, but the charges were dismissed. He was also found not guilty in the same county of a harassing phone call charge in 1993. (Burton no longer drives for Uber).
Michaels says that on January 27 the woman went to Limelight Houston earlier in the evening with a friend, former employer, and a man from Chicago who was staying at the Crowne Plaza Hotel in River Oaks, where the woman works as a bartender. That man, identified in the affidavit as Jerome Bulies, and the woman took Burton's Uber from Limelight back to the hotel, and then Burton was supposed to drive the woman home.
The woman woke up alone in Burton's apartment the next morning, "naked from the waist down," Michaels said, and was unsure of where she was until she looked out a window and saw that she wasn't far from her home. According to Michaels, she walked home and then went to the hospital for a sexual assault exam. (This is consistent with what the woman told police in January).
"She had no memory from the time she took a sip from the second drink that she had at this club, to waking up the next day," Michaels said. Michaels also said he's waiting on blood work from the hospital to find out if his client may have been drugged.
Jeff McShan, spokesman for the DA's Office, told us in an email last week that "The case is over unless new evidence comes forward and we decide to refile. We cannot discuss grand jury proceedings and therefore have no other comment."
It's a shame they can't discuss grand jury proceedings, because we'd sure like to know why an alleged sexual assault victim wasn't called to testify. On one hand, we have an un-registered Uber driver with a criminal history that includes a 14-year prison stint, who admitted to bringing home a vomiting, apparently intoxicated passenger to his home, and having sex with her. On the other hand, we have a woman who says she does not even recall meeting Burton and said she did not consent to sex with him.
Because grand jury proceedings are confidential, the DA's Office's hands are tied, so prosecutors can't explain why they don't always feel it's worthwhile to have alleged sexual assault victims tell their stories before grand juries. Did these jurors not even want to hear from the woman? Did the prosecutor somehow feel the woman would harm her own case? Does the Harris County District Attorney's Office not understand — or not care — how troubling this looks, or what kind of message this sends to women who are willing to report rape in the first place?
Updated 6/24/15 at 12:15 pm: We heard from Scott, who said he was unable to elaborate on his remarks to the Chron regarding inconsistent witness statements.
We have also received the following statement from the DA's Office: “The Harris County District Attorney’s Office filed sexual assault charges on defendant Duncan Burton and we made all witnesses available to the grand jury including the complainant in this case. Only the grand jury decides which witnesses they want to hear from.”