Child abuse victims are given a special necklace when they testify, courtesy of Alliance For Children. Star-Telegram
Child abuse victims are given a special necklace when they testify, courtesy of Alliance For Children. Star-Telegram

Special Reports

Child abuse trials: ‘There are no higher stakes’

By Deanna Boyd

dboyd@star-telegram.com

May 31, 2017 12:53 PM

FORT WORTH

No accusation, no crime carries more scorn and shame than child abuse.

And very often, no cases are more difficult to prosecute and defend.

“Whether you’re defending somebody or whether you’re prosecuting someone, there are no higher stakes than in child abuse cases,” said Christy Jack, who spent years prosecuting child abusers for Tarrant County before turning to private practice.

The cases are messy and emotionally charged, littered with unthinkable and unspeakable acts and filled with legal minefields and life-changing stigmas, guilty or not.

A boyfriend accused of beating his girlfriend’s son to death. A father accused of sexually abusing his own daughter. A mother who severely beat her own child.

In 2016, the Tarrant County district attorney’s office Special Victims Unit — in which prosecutors investigate mostly crimes involving children — filed 240 injury to a child/elderly/disabled person charges, up from 205 charges in 2015. Seventy-two child abandonment/endangerment charges were filed, up from just seven the year before. And nine charges of capital murder of a child under age 10 were filed, up one from 2015.

The challenges for both sides begin in jury selection.

Prosecutors must seek out jurors willing to even consider that a caregiver — sometimes even an upstanding citizen with no prior criminal history —could harm a child.

“You have to pop that bubble that people live in that would think a parent would never do anything like this and then that there’s no premeditation involved,” said R. Dale Smith, chief of the Special Victims Unit. “Intent can be formed in an instant.”

To the other extreme, defendants must battle the stigma that comes with being accused of child abuse, especially sexual abuse.

“You can easily ask the jury would you rather be accused of murder or would you rather be accused of sexual abuse of a child and they all say they’d rather be accused of murder,” said defense attorney Letty Martinez, also a former child abuse prosecutor. “That shows how abhorrent the charges are.”

Defense attorney Brian Willett said the first thing he usually asks prospective jurors with children around the same age as the alleged victim, is to imagine that a friend was accused of such a crime but later found not guilty.

“Would you let them them watch your children?” Willett asks.

The answer, he said, is almost always no.

“That is what we’re up against. That is like ‘The Scarlet Letter’ except it’s for child sex offenses,” Willett said. “It doesn’t matter what happens from this point on, he will always be thought of as someone you’ve got to watch.”

Questions abound

In child homicide cases — where confessions and witnesses are rare — prosecutors usually can’t tell jurors how a fatal injury was even inflicted, Smith said.

“We don’t know what happened,” Smith said. “Most of our charges are going to be striking with or against a hard object or surface.

R. Dale Smith, chief of the Tarrant County DA office’s Special Victims Unit, looks over evidence during a 2016 child abuse case hearing. He said when picking a jury, “you have to pop that bubble that people live in that would think a parent would never do anything like this and then that there’s no premeditation involved.”
Ron T. Ennis Star-Telegram archives

“As a juror, what would you think in that situation? Because I can’t tell you how it happened and even if you find the guy guilty ... you’re never going to know what happened for sure,” he said. “Did he stomp on the child? Did he pick up the child and throw it? Kick the child? Use an object and beat the child?”

And unlike cases involving gunshots or stab wounds, defense attorneys are quick to argue in child abuse cases that there was another cause for the injury or that it was a pre-existing condition.

“Every one of our cases has a defense expert who is going to come in and say, ‘Well these liver lacerations could have been caused by CPR.’ ‘This head injury is due to neonatal rickets,’ even though there’s never been a test done on the child for neonatal rickets,” Smith said.

“They’re bringing in experts from Europe, Florida, Arizona. It’s not like they just go down the street and pick up a doctor here. They find a doctor somewhere that’s going to come up with what they have as a theory for their case.”

Rolling the dice

Unlike defendants accused of other crimes, even murder, who may seek out plea deals with prosecutors, those accused of sexually abusing children are much more willing to roll the dice in a trial.

“Even if you’re offered 10 years’ deferred [adjudication probation] to a sexual assault case, that is the most difficult probation that exists,” Jack said. “You are placed in a sex-offender caseload. You are labeled a sex offender and you must be prepared to register as a sex offender for the rest of your natural life.”

One slip-up, like getting drunk or being alone with a child even when nothing sinister happens, can leave the defendant facing the maximum sentence for that charge.

“Sometimes they’ll just say, ‘I’d rather go to trial because I don’t want probation, I don’t want to go to prison. I’d rather take my chances because it’s a death sentence no matter what,’ ” Jack said.

Smith said because child abuse crimes are so detestable, some defendants will never take responsibility.

“You can have somebody with a lot of evidence against them but they’ll never admit to their mother, or their wife, they did wrong,” Smith said. “They’d rather have a jury say guilty and that way they can always say they didn’t do it.”

Legislative changes have also made potential sentences stiffer than ever. Now, if convicted on continuous sexual assault of a child, punishment begins at 25 years in prison with no parole.

“That wasn’t always the case. When we were prosecutors, probation was still an option for an aggravated sexual assault of a child case,” Jack said.

Former Tarrant County prosecutor turned defense attorney Christy Jack says “there are no higher stakes than in child abuse cases.”
Varghese Summersett PLLC

Willett recently defended a man indicted on nine counts of continuous sexual abuse of a child.

“From the very beginning, he said he wasn’t going to take anything,” Willett said. “He was insistent that he didn’t do it. He wanted a trial.”

Willett said he tries to warn his clients what they’re up against.

“I wish I could film one of my voir dires on a child sex case and show it to my people before we go to trial,” Willett said. “I don’t think they understand just how emotional and tough the cases are.”

Willett said that as soon as prosecutors announce to prospective jurors that this is a sexual assault of a child case, the dirty glares begin.

“I always tell my people you’re going to be lucky if they don’t hate you,” Willett said.

And some potential jurors have personal reasons why.

In the recent trial involving the defendant with multiple counts, Willett said out of a jury panel of 60 people, half were struck for just cause because they acknowledge they couldn’t be fair in such a case.

Willett said he counted 18 or 19 jurors who acknowledged being sexual abuse victims or having a family member who had been sexually abused.

Once a jury was seated, his client insisted on testifying — a rarity in such trials but one that paid off. His client was found not guilty on eight of the counts and the jury deadlocked on a ninth count. The ninth count has since been dismissed by prosecutors.

You can easily ask the jury would you rather be accused of murder or would you rather be accused of sexual abuse of a child and they all say they’d rather be accused of murder.

Letty Martinez, former prosecutor

Willett said such acquittals are rare in cases where he believes jurors are more often led by emotions, than actually following the standard of guilty beyond a reasonable doubt.

“They’re tough ones,” Willett said. “I’ve said this before, I would faster try a murder case than a child sex case. I can justify somebody being murdered. You can never justify a child deserves to be sexually assaulted. It’s never going to happen.”

A child’s word

In most child sexual abuse cases, no physical evidence exists because children don’t immediately tell anyone about the abuse.

“They may outcry days, weeks, months, years after the event,” said Dr. Jayme Coffman, medical director of the Cook Children’s Medical Center CARE Team. “So even if there was trauma, it’s going to be healed. ... And it can heal without scarring.”

Because recorded forensic interviews are not admissible to be played in court, the alleged victim must frequently take the stand during trials, detailing the abuse while the alleged perpetrator sits nearby.

“Most of our sex offenses, all we have is the testimony of a child,” Smith said. “I’ve put a child as young as 4 years old on the stand.”

And the alleged perpetrator is more often than not someone the child knows very well.

“So many people in our society are afraid of stranger danger,” said Grant Gildon, a detective with Arlington police’s Crimes Against Children Unit. “I’m not going to say it’s not out there, but that is not the majority of child abuse.”

The more likely perpetrator, Gildon said, is a relative living in the same house or a trusted associate of the family who has repeated access to the child.

“It’s justifiable and reasonable access that no one would bat an eye at — you’re the baby sitter or you’re the dad,” said Sgt. Seth Archer, supervisor of Arlington’s CACU unit.

Smith said children react differently to the pressure.

“I’ve had 4-year-olds that have come in, and they’re able to tell you exactly what happened a lot easier than 22-year-olds,” he said. “Now, I’ve also had children that end up as puddle on the floor when they’re done. It’s just different for everyone.”

Smith remembers trying a sexual abuse case in which an 8-year-old girl had to testify against a former friend of her mother. The man, Smith said, was defending himself.

“That means, he was going to cross-examine this girl,” Smith said. “What a horrible situation to think of the abuser getting to cross-examine the girl. It just blew everybody’s mind.”

Smith said he tackled the issue by treating it as if it were not a big deal when talking to the girl. He told her right before she was to testify that he would ask her some questions, followed by the defendant, and to just tell the truth and it would all be fine.

“She skipped right down and testified. She did great,” Smith said. “Children are resilient. I think confidence with the children is the most important thing, showing them that you know they’re going to be OK so they believe they’re going to be OK.”

The Alliance For Children also works with children, holding mock trials to get the children comfortable with being on the stand and what that entails.

Each child is given a necklace with a pendant reading “strength” or “bravery” — a program begun after one terrified girl was given such a necklace to wear while testifying.

“She kept it with her while she was on the stand,” said Kim Rocha, a former spokeswoman with Alliance For Children. “When she finished testifying, she gave it back to the prosecutor and said, ‘Give this to the next little kid.’”

Deanna Boyd: 817-390-7655, @deannaboyd

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