Why Won't They Drop The Charges?

Texas.

Back in 2002 my now husband took in his niece,10, whom claimed to be sexually assaulted by her father, his brother. He was married with two daughters, now 19 nd 21. The oldest is not his biological daughter but claimed her at birth 21 years ago. His then wife had several affairs over the years and in 04 was convicted of imbelzement, they seperated in Jan of 05. In Feb of 2005 the niece got mad at him, and did more than accuse him of rape, she set it up.

She has accused so many guys, teacher, cops, uncles and I guess there was never any proof, she decided to make some. He was on anti-depressants and sleeping pills from everthing his wife put him through. The niece has been caught having sexual relations with boys her age, so she knows what she is doing. The night in Feb 05 he took his pills went to bed and passed out, woke up to find her on him. He pushed her off, and told her she was going to have to live with someone else. He passed back out to rewake an hour later with his wife standing over him with a gun to his head. She took the niece to the ER to confirm the rape kit. The wife filed for divorce the following day.

Then procedded to tell the oldest daughter that he was not her father and has paid her to accuse him as well. Her charges appear the day after the divorce was filed. Even at 21 she cant keep her story straight. "It happened one time, no it was every day, I had forgot it happened, I told him he could till I was 16." And she was pregnant at 17 by a 27 year old. She went from coming over every day to we have not seen her in almost two years now.
She had even tried to back out of the accusation, they threatented to press charges on her and take her baby away, and she is pregnant now.

So in physical evidence, they have the pre ejaulate fluid no sperm, but say they have no DNA from him, because he was fixed,so he would know that if his wife got pregnant again it would not be his, with her many affairs. But it does have female DNA other than hers. We are thinking that she had used one of the wifes or daughters toys on herself to futher the evidence of penatration. But they wont take dna samples from the other females in the house.

The judge is not allowing any of the accusations from before or after he had her in his custdy. She was also recently arrested with cocain and was on the run with a 52 year old man. And is now lock in a treatment faclity.

She is in the care of CASA, and has been moved several times cant get a long with the fosters, has ran away many times, right around the court dates, this is causing postponments. It has been delayed 6 times now. The lawyer is $5000. more each time it is prolonged. We are going broke selling everything we can. I mean come on all this stuff has to be in her file to show how messed up this pour girl is. Why cant they use it to prove his innocence. Why do these lifes have to be on hold at the account of this one girl.
It was just delayed today till Feb of 08. He has to report every week, he cant leave the county, has an 8pm curfew.And cant go any where kids may be. We married in Feb of 07, and we cant live together because I have children, all boys 12, 14, 16. It is so hard to try to maintain to seperate households. Two set of bills.

How long can this go on? Why can't they just drop the charges?

Thanks for listening, sorry it is so long, I just have no one to talk to about it. He is a great guy, that always gives people a second chance and is always screwed over in the end. Has had the same job for 20 years, He has never been in a lick of trouble, even just got his first speeing ticket just a few months back, and he is 41 years old. It all just breaks my heart, and I don't have much trust in a system that wont allow all the evidnence. They told him if convicted with the new laws he will have to serve a min of 20. But keep trying to get him to plea 10 to serve 7. they started at 20 to serve 15. that alone tells me they dont have anything.

Ok , sorry, again thanks for listening.,

I can just as easily ask, why should they drop the charges?

They have an (alleged) victim who reports sexual abuse. They have the ex-wife who believes her. They have your husband apparently admitting to a sex act, but claiming it was involuntary. That's a strong case.

Well I think you are reading it all wrong, and are believing that the people who cant be trusted.

You believe the ex-wife who has been convicted of imbezelment, has had multiple affairs over a 20 year marriage? Who probably put the idea in her head knowing her history. Have you ever heard of people who just want to make other peoples life miserable, just because they are not happy in their own. Some people are willing to do and say anything to hurt others.
Especially when they can see that they are happier than they have ever been with them.

As far as the alleged victim goes, that should be him. If he was not willing the that would mean that she was rapeing him. Now back to the evidence.He never came, there was no semen, no bruises, no skin under her nails. He said she was on top of him. He does not know if he was inside her. Have you ever taken a prescription sleeping pill? Once he was a sleep he cant do anything, not even wake up enough to explain what happened to the ex. And passed right back out. By morning thought it had all been a dream.

And her story, he carried me to the bed room(why would you let him?)took my clothes off( no fight?) layed me on the bed and had sex with me( no hitting , bitting, or scratching?). When he was done told me to go shower.


Now personally I have been sexually assaulted. And I fought all the way the whole time, I didn't lay there and just let it happen.

We have a letter from her that states a week before she raped him. Two of his friends took her into the woods, and both raped her. Why did she not come home and report that to him, but was still willing to lay there let him. then choose to report him, He was the only one person in the world keeping her out of foster care. And then if it is all so true, why does she run away right at the time of the trial everytime, 6 times. This is not fair.Knowing her history he would not willing give her a reason to accuse him, and the DNA cant even point to him. And on top of that he would have used protection if thats what he had planned to do. STDs would have been the first thing to cross his mind, before the sex, even fixed he would use one with his ex.

And just because I have only been married to him for 8 months does not know that I don't know him and all parties involved. I have known him, his kids, his ex for 10 years. I have seen the girls grow up by his side, hanging on his arms. he treated his niece no different than one of his own. He would not hurt anyone, he's the one that gets hurt, used, and abused.

Stop, think and put yourself in his shoes just for a moment.

We aren't as personally involved in this matter as you are, mrsdlgabriel. We are only seeing what you are telling us and have no idea what the prosecution knows. It sounds like a royal mess to me. Has your lawyer asked for a dismissal?

Prosecutors aren't in the habit of dismissing their case once they have filed it. Unless some new evidence appears that casts serious doubt on their case, they will proceed if they feel they have sufficient evidence to convict beyond a reasonable doubt. Rape is a serious crime, and the state does not tend to file these cases willy-nilly. It is very likely that they feel their case is a good one.

Don't expect the case to be dropped. Your hubbie should expect it to go to trial.

- Carl

But how long can they let it go on, It has been three years in Feb 08, everytime she runs it is prolonged another 4 months. For all these lifes to be on hold that long is not fair, for some one they have not beeen able to prove guilty. But not treated as inocent, like all the restrictions he has, he can't go to my sons football games, we can't be a family. If they were so afraid he was a pediphile, why is he even allowed out. And then what five more year down the line they find him not guilty, and we get what a sorry.
As far as the case goes we are not worried. It our lifes I care about, and would like to live it, instead I am just as restricted as him.

He should discuss his "due process" and "speedy trial" rights with his lawyer.

Please go back to read the original post!! Why won't they drop the charges?.
http://www.expertlaw.com/forums/showthread.php?t=32936

Well here I am back again and the same thing is still going on. These charges have gone on for 5 years now, and she still will not show for trial. We have been married for 2 years and still have not been allowed to live together. She has still been doing all the same things.

A few things that I did not mention, and a few more thing have come to light. She was not 10 at the time of the alleged assault she was 13, and will be 18 next month. CPS has released her from their custody. From what we hear if she does not show up on her own it will be thrown out(but I am sure she will be locked in jail, and they will transport her). But if she does show up, her actual out cry report states that she was on top. He had been drinking that night, and because what his wife had put him through, he had just started taking AMBIEN and Zoloft. It is in his medical records.

Ambien is now known as a date rape drug. With side effects, that include amnesia and sleep sex. And they were not aware of these side effect in 2005.

Does this give you a different opinion of this case??

No, it doesn't. No matter how voraciously the MINOR CHILD behaved, it doesn't change the LEGAL concept of consent. There is no action or behavior that she could do that would make this into legally consentual sex. And it has NO bearing on his liability for the criminal charges, even if he was on any combination or variety of drugs.

Ambien is deemed a "date rape drug" because it can be surreptitiously slipped to a victim, not because of its effect on an alleged perpetrator.

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Quoting aardvarc

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No, it doesn't. No matter how voraciously the MINOR CHILD behaved, it doesn't change the LEGAL concept of consent. There is no action or behavior that she could do that would make this into legally consentual sex. And it has NO bearing on his liability for the criminal charges, even if he was on any combination or variety of drugs.

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I'm not sure things are so cut and dried in Texas I believe there is plenty of wiggle room, Especially in a case where defense is allowed to show a pattern of lies. (which they may not be allowed to do) And even more so if the child had been given a hypnotic under medical advisement (chances of course are 1 in a million). In Texas if the minor contributed to the impairment of the adult and initiated sex that would be a defense (Ex. A minor child slips mom a mickey or takes advantage of her when she comes home drunk or knocked out on Valium no one expects the mom to be charged)

In states with ridged strict liability laws where it looks hopeless a possible defense is attacking the inability to mount a defense and resulting violation of the sixth amendment right to a fair trial.

And another thing that I am not quite comfortable with, is the judge. The judge we had is the same judge that prosecuted the brother for the same same crime with the same child, and had no evidence. This is a conflict of interest. She will not let it in the court that she had been allegedly abused prior to this. The judge had been moved to a different district, and his case had been transferred to a different court, but the last time when the trial came back up, the old judge left her jurisdiction to come back and try this case. How can this happen?

This was in no way consensual, he is a victim, she took advantage of him, he has no memory of anything but waking up. Rape is a act of intention. Research the side effect of ambien, there are hundreds of threads and new FDA warnings including sex while sleeping, many couples are getting divorces, because the fact they are being taken advantage of while they sleep. He starts crying every time someone tells him that it could have been possible for him to have reacted to her stimulating him while he was asleep, this would be an act of autonism.

She has been caught many times fondling sleeping girls, including both his daughters. She claims to be a lesbian, so that her lesbian mother will accept her. She lived with him for three years prior to the incident, and she said he had never touched her in any kind of a inappropriate way before this. The oldest daughters testimony has been thrown out as there are too many discrepancies in her story, and has been trying to make contact with him, to become part of his life again with the grandchildren.

There is no "if the rapist is on drugs or alcohol" loophole in the rape laws.

Conflict of interest does not extend to a judge trying a case with the same witness/victim in it.

Further, most people would be appalled at the introduction of a rape victim's previous sexual history as a defense to the rape.

"Weasel words."

Many think my client's IQ contributes to his unconventional and sometimes chaotic thinking. Experts note the same traits in Ted Kaczynski (The UnaBomber - IQ 175) and Bobby Fisher (IQ of 187)

Everything was implied nothing substantiated. In law you must substantiate everything.


List the facts She made similar allegations against her Soccer coach Bob **** in 2007, her HS guidance consoler Jane ****** in 2008. Her dealings with the law has resulted in "shoplifting charge from Wal Mart 2006 (adjudicated, but reverted to guilty after she failed to follow court instructions)


You see? There isn't any sense in building a case out of rumor because it won't be allowed in court Build on facts. Now try again to be impartial and list the facts of the case.

Don't pick on Judges, they stick together.

We finally had our trial. A confirmed NOT GUILTY!!!!!!!!!!!!!!! The girls story was so bogus.... Not one of her statments matched her original out-cry. The ex-wife and step-daughter also testified, but their statments were just a bogus. They jury took a long time over 6 hours of deliberation. We have found out that on the very first vote it was 8-to-4 not guilty. There is a God and there is allways hope. The Ambien was not even considered in this case.

So for anyone else that may have to face something like this, knowing they are innocent please have faith, and do much praying. Keep your head held high, and may your faith be stong.

He turned down a 10 year plea agreement that would have been probated, that his lawyer stressed him to take. To go all the way , because he knew he was innocent.

P.s. It allways helps to have a great attorney. Ours was the DA here for over 15 years.

If I get this correct, he was found not guilty because the witnesses' credibility was in question, not the facts of the case ... since as I recall, the defendant admitted the act occurred, he just claimed to be out of it and not aware it was occuring.

He got lucky. Hopefully he has changed his medication and is not so out of it any more.

Thank you for the update.

- Carl

He had never taken the Ambien again after that night. The defense we used, was Intent. He did not cause the contact, she did. Therefore it was not his intent. He was never inside her, he never touched her.

Example. 1 -Contact- If you are just standing there, and some kids walks up to you and grabs your genitals, and you push the child away, should you be charged?

No, only if you don't stop it immediately.

Example. 2a- Possession- you are sitting there and someone put some cocaine in a piece of paper wadded it up, you don't know whats in the paper. They throw it to you, and you catch it, is it possession? Yes

Intent to posses? No

2b.-Now your eyes are closed, someone does the same thing, does not throw it this time, but sets it in your lap. Is it possession? Yes

Intent to posses? No


He revoked his 5th amendment right and took the stand and testified, he told the truth. We had the case won before she was ever done with her testimony, she told three different stories on the stand. She now also said she was never on top, that he was on top the whole time. The 15 witnesses, SANE nurse, CASA interviewer, the sheriff, CPS, the ex-wife, both daughters, and every other witnesses report, she stated she was on top.



So no I don't think we got lucky, I think the truth has finally come out. And no one can keep their lies straight anymore. The ex-wife now, is taking revenge on the youngest daughter, after the out come yesterday. Since she was on her father side with the truth. With-in an hour after the verdict she had her phone cut off, froze her bank account, and call her current boy friend, told him she was there with a previous boy friend, he broke up with her last night. Like I have stated before have you never heard of some who has to try to make other peoples lives miserable because the have lost everything in their life due to their own actions, and want to make everyone else pay because they are happy in their lives. And it would have been worse if the ex-wife was not reminded she was still on probation and that if she lied it would be revoked.

The girl claims she was "raped" less than one month after she accused him, 6 months after that, and 5 other times since. The last time was less than 4 months ago, and she is claiming to be pregnant for the 4th time. Now come on how many times can one person be raped. And I say this as a rape victim.


I am not saying this girl is not a victim, I think she needs a lot of help. And I hope she gets the help she needs. I just feel sorry for the next one she tries to accuse. And it will happen.

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Quoting mrsdlgabriel

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He had never taken the Ambien again after that night. The defense we used, was Intent. He did not cause the contact, she did. Therefore it was not his intent. He was never inside her, he never touched her.

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But, he could easily have not been believed. Since he admitted to some measure of the act, it could have been interpreted that he was lying and that the girl's account was the truth (and I forget what her account might have been). That's what I mean by "he got lucky". Most cases like this hold a great deal of sympathy towards the victim, and any bad choices or sexual activity since then can often be pointed backwards to a single incident or series of incidents such as the seduction by an adult relative. So, the fact that has since had a history of drama could have been blamed on his actions rather than on the girl's own character flaws. But, even so, her issues came from somewhere. A 10 year old girl does not just develop sexual tendencies out of the blue.

So, my saying "he got lucky" is not an indictment of him or his guilt, but merely to point out that this could have played against him. Had the DA been more well versed in sex crimes cases, or his defense attorney less adept at his function, the verdict could have been much different.

- Carl