There may be some doubt as to who are the best people to have charge of children, but there can be no doubt that parents are the worst.
~George Bernard Shaw
After a case is indicted by the Grand Jury, the DA always sets a plea recommendation. She bases it on the crime, the evidence we have, prior history, the likelihood that it will go to trial. Rapes are the worst. Most of the time, we set no recommendation, and force them to plead open, throw themselves on the mercy of the court, or we force them to trial. Statutory rapes are different. When the girl says yes, we drop the recommendation way down. Sometimes even reduce the charge to sexual battery, like we did here. Most of the people here believe in consent as a defense. A lot of the jurors might have had their first baby when they were her age, and they didn’t prosecute anyone. Why ruin someone’s life over something as little as that? Maximum exposure on sexual battery is 30 years. We offered five. Would probably serve two. He was 18. She was 13. When they are 13 though, the game changes. If she had been 14, he would have only faced up to fifteen had we left it at statutory. But at 13, he’s facing twenty to life. What a difference a year makes. Is the new 13 really 13?
Shay Baby was hanging with her 17 year old cousin, Shantina. Got a phone call from Ryant, Shantina’s boyfriend. We had just convicted Ryant’s twin brother, Bryant, in an armed robbery case earlier in the week. Shantina handed the phone to Shay Baby, so one of Ryant’s partnas could hollar at her. Lil’ Smurf. I am not sure what they hollered about, but after they got done hollering, later that evening , Shantina and Shay Baby snuck out of the house. Went over to Ryant’s. Lil’ Smuf was in the bed. Ryant answered the door. “This is the girl I got for you.” Shantina jumps in the bed with Ryant, and Shay Baby got in the bed with Lil’s Smurf. Never met him before in her life.
He says he asked her how old she was. Said it on his audio confession as well as on the stand. She initially told him she was 17. Being 18, Smurf saw no problem with that. Wasn’t much to talk about. All four of them started having sex. On their respective sides of the room of course. With their respective partners.
Apparently Smurf and Shay did it several more times over the week. After all that action, Shay Baby can’t quit bleeding. Her mom, who wasn’t a day over 30, takes her to the woman’s clinic here. They tell her that Shay is sexually active, and that she has gonorrhea.
The momma, Melinda, presses charges. Signs papers against him, as she put it. It was almost a month after the incident.
My old buddy Capt. Doyle with Clarksdale PD picked up Lil’ Smurf for questioning. After waiving his rights, Smurf says yeah, I had sex with her. I don’t know her name. She told me she was 17. That’s about it. Well Smurf, you’re wrong. She’s 13. Audible gasp at the other end of the audio recording. So Smurf launches into a long dialogue about how Shay Baby had sex with Ryant too and they all had sex together. A big old party there.
Didn’t change the fact that she was 13.
And with the reduced plea offer and confession, I didn’t really focus on the file. Had a couple of capital murders that I had to work up. But it got to be a week before trial, there was no movement, so I had to start calling the family.
I met Shay Baby and her mother on a Thursday afternoon. Like a plaintiff’s lawyer pulling up to the scene of an accident, I wondered how “good” the damages were. They were good. Shay Baby didn’t look a day over 12. Some of these 13 year olds can pass for 17 or older. Had she walked in here all filled out with curves and swagger, I’d have a hell of a problem. But she was thin as a rail. No boobs or butt. Glasses and braces. Hair in pigtails with big plastic beads on the end. Green shirt, yellow pants, blue socks. Real quiet girl. Smurf knew he was fucking a child. And she was nervous as hell talking to me about sex and stuff, being there in front of her momma and all. So I give them a tour of the courtroom, where she was going to sit on the witness stand, what direct and cross examination was going to be like, etc. I didn’t care about her. I needed her to say they had sex, and point him out in the courtroom. That’s it.
After the tour and the 10 minute sell, as I did with every victim I put on the stand, we came back to my office. They’re sitting across the desk from me, obviously not sure if they should trust this white boy. Not sure if they should even be here. I hate victims like that.
“Well, I’ve been talking a lot about the trial and all, is there anything you want to tell me?
“Well there is one thing.”
Shit. “What’s that?”
The mother looked down into the grease spot on her massive breast.
“Well, you might be kinda mad about it.”
“Go ahead. Whatever you tell me doesn’t leave this office.” I propped my boot up on the corner of my pull out file drawer. Black people don’t like white men in cowboy boots.
“Well, Lil Smurf’s family offered me $500 not to come to court.”
Shit.
“Alright.” I put my boot back on the floor, leaned in and put my arms on my desk. “You take it?”
“Yeah. See I had this gas bill I had to pay, and I really needed the money.”
You just pimped out your 13 year old daughter for a goddamn gas bill?! I glanced at Shay Baby, but she wasn’t looking at me.
“Alright.”
“But don’t worry Lawyer Carr, I’m gonna come to trial. I told them it would take $1,000 for me not to come to trial.”
Wasn’t comforting, though it was meant to be.
“Now listen ma’m. You can’t be talking with the family like that, taking money from them and all. I mean, your daughter got attacked by an 18 year old guy, and you don’t want to come to court? How can I protect her if you are taking money on the side? How can I get up there and argue that you are harmed and that you deserve justice. Now you gotta stand up for her. This is a crime.”
There was a pause as she thought about the money she could make.
“Naw now, I’m gonna come. I’ll be there. I’ll take the $1,000 but I’ll still be there.”
She nodded her head to reassure me. I looked her straight in the eye. Black people don’t like that either.
“Alright then. I’ll see you Monday.”
And they left the office.
The morning of trial, I got halfway to Clarksdale from Cleveland
Half hour later, I made the turn into Clarksdale
I called Shay Baby’s mother on my cell.
“Ya’ll ready to come to the courthouse?”
“Well, I’m coming, but Shay says she’s not coming.”
“She’s not coming?”
“Yeah, she says she’s at her aunt’s house and says she’s not coming.”
“Let me explain something to you. You’ve been summoned by a court order. If you don’t come to court, an arrest warrant will be issued for you and you will go to jail. Same with your daughter. This court will not hesitate to put a 13 year old in jail. Now, I’m going to ask you again, is your daughter going to come to court?”
“Well I don’t know.”
It was time to be helpful. I loved offering the county taxi service.
“Well, I can send a sheriff’s deputy to come pick her up from her aunt’s house…”
Pause.
“Or can you manage to get her here yourself?”
“Oh, I can get her here. I can get her here.”
“Good.”
Sure enough, by 8:30 they were there in my office. And they were hot, boy…. Hell, they are the victims in the case! Mad at me because I was giving them their day in court.
We start voir dire, I ask a lot of questions about people’s opinions on consent and mistake of age, explain that they are not defenses, and try to get as many older black women and white people in the box as I can. Luckily black men and young people don’t often register to vote in this county, so the jury looked pretty good.
State can now commence its case-in-chief. I put the investigating officer on the stand. There wasn’t much to ask. Name? Doyle. Occupation? Police officer. Rank? Captain. Did you arrest the defendant and read him his rights? Yes. Did he agree to waive those rights and speak to you? Yes. What did he say? He told me he had sex with the victim.
I put the momma on the stand. Asked her did she become aware that her daughter had a problem? Yes. When? When she couldn’t stop bleeding. And what did you do? Took her to the Women’s Clinic. And what did they say was the cause? Objection. Hearsay. Response? Mississippi Rule of Evidence 803(4) – Statement Made For Purpose of Medical Diagnosis or Treatment. Objection Overruled. You may answer the question. They told me she was having sex, and that’s why she was bleeding. No further questions.
I braced for a ripping cross. One that would get into how this woman took money from his client’s family not to prosecute. But the defense attorney couldn’t touch it, even if he knew what I knew about the offered bribe. Walter was right. He couldn’t touch the subject, because it would automatically make his client look guilty. No questions.
My final witness was Shay Baby.
“Please state your name for the jury.”
“________”
“Do you go by any other names?”
“Shay Baby.”
How old are you?
“Thirteen.”
“What grade are you in?”
“Sixth.”
“Did you fail a grade?”
“My mother didn’t have the money to get shots when I was young, so I started kindergarten late.”
“Now you have kind of a soft voice, so I’m just going to ask you to speak directly into the microphone do the jury can hear you. Will you do that for me?”
“Yes sir.”
“Do you know why we are here today?”
“Because I had sex.”
“Do you know who had sex with you?”
“I don’t know his name.”
“What do you call him?”
“Lil’ Smurf.”
“Is Lil’ Smurf in the courtroom today?”
“Yes.”
“What was that?”
“Yes sir.”
“Will you stand and point him out for the jury?”
And like a champ, she stood up and pointed directly at him. Didn’t bat an eye.
“Please let the record reflect that the witness has identified the defendant.”
“The record will so reflect.”
“Now, before the defendant had sex with you, did you tell him how old you were?”
“I told him I was seventeen.”
“Did you ever tell him how old you really were?”
“Yes.”
“How old did you tell him you really were?”
“Thirteen”
“What was his reaction to that?”
“He told me to get out his face and stop lying.”
“And when I ask you did you have sex, what I mean is, specifically did he put his penis in your vagina?”
I hate having to ask that. Hate it. So antiquated. So formal. So scientific. But part of the indictment. Have to say the buzz words.
“Yes sir, he did.”
“No further questions.”
Again, no cross. There wasn’t anything more to discuss. I rested.
The Judge, after advising the defendant of his rights, asked if he wanted to testify. He did.
So the defendant takes the stand. I love when they take the stand. His attorney started the direct examination.
“Now we’ve heard a lot of testimony here today. I’m going to cut straight to the point. Did you have sex with this girl?”
“No sir.”
“Not at all?”
“No sir.”
“Well did you do something with her?”
“Yes sir.”
“Well, what did you do?”
“She got in the bed with me, we messed around, and I ejaculated on her stomach. I never put it in her.”
“You never what?
“I never put it in her?”
“So, when you told the cops you had sex with her, is that what you meant?
“Yes.”
“They never defined sex for you?”
“Oh no sir.”
“Oh no sir.”
“Can you expand on that?”
“Yes sir. See, my definition of sex is different. When I say ‘sex’, what I mean is ejaculation. And they never even bothered to ask me what I meant.”
“Never even bothered to ask you, huh?”
“Oh no sir.”
“Nicholas, have you ever had gonorrhea?”
“Oh no sir. That’s nasty.”
“Do you think that if you would have put it in her, you would have gotten gonorrhea?”
“Objection. The witness can’t speculate as to whether he would have gotten gonorrhea or not. He’s not qualified as a medical expert.”
“Sustained. Next question, counsel.”
“No further questions, Your Honor.”
So I got up there on cross examination, and I threw him a few hit and miss questions, trying to let me impeach him with the audio tape of his police confession, but Lil Smurf never denied that he told the cops he had sex with her, so I couldn’t play it. He said on the tape he had sex with her. Cops never asked him what he meant by sex. Cops never asked if he “put his penis in her vagina”. Stupid buzz words. I went with plan B, backed him into a corner about how he defines sex differently than the rest of the entire world, and how he failed to mention that to anybody until this very day when he was on trial. Then I rested.
We got to closing arguments.
I started on the first half of my closing argument. Went through the elements of the offense and how the State has met its burden according to what was outlined in the jury instructions, blah blah blah, and that the only issue was penetration. That mistake of age was not a defense. That consent was not a defense. That the only issue was penetration. And the best evidence the jury had, besides the victim’s testimony, was the fact that she was bleeding and had to go to the Woman’s Clinic. Simply put, vaginal bleeding isn’t caused from ejaculation on a 13 year old’s stomach. Or anyone’s stomach. But that’s all I had.
Time for defense close. The public defender walked slowly to the podium, an older white man who had been doing this for thirty years and had whipped my little ass up and down the courtroom many a time. He stretched out both arms, leaned them heavily against the sides, and looked down over the top of his glasses at his audience.
“Ladies and gentlemen, this is a sad sad situation. A situation where a young man’s life is at stake for a mistake he made. Now I know that mistake of age is not a defense. As well as consent is not a defense. But these were truly factors in this situation.”
Ass.
“Now the State tells you that the best evidence you have that this young girl was penetrated was bleeding. Heck, that can happen at any time, from what I understand about these things. (laughter from the jury) Irregular menstrual cycle. They’ve brought no doctor in here that examined her to see if she was penetrated. They’ve got no DNA evidence. There was no rape kit done. They’ve got nothing here but her word. And she has gonorrhea. Gonorrhea! Does my client have gonorrhea? No. And if my client had slept with her, had penetrated her, he would have had gonorrhea as well. Didn’t happen folks. Flat didn’t happen. The cops didn’t even bother to ask him how he defines sex. They just asked him ‘did you have sex with her’ and they didn’t even bother to take it a step further. To make sure everybody was talking on the same page. And they weren’t, because you heard my client come in here and tell all of you that sex means something different to him. He didn’t have sex with her. You heard him. I ask that you find him not guilty.”
I had five minutes left. I didn’t know where to start. So I just started….
“Ladies and gentlemen, did you hear what I heard? I just heard a defense attorney get up here and tell you that the best evidence you have to consider in this rape case of a 13 year old girl is whether or not the defendant has gonorrhea. The old if-he-doesn’t-have- gonorrhea -he’s-innocent defense. I love that defense. Asks you to disregard an eyewitness, being the victim, asks you to disregard the bleeding and trip to the Woman’s Clinic and their determination that she has been sexually active, and asks you to disregard the fact that the defendant admitted to having sex with the victim.”
Then I had to soften the blow to win a bit of favor.
“And the defense attorney is right on a few things. I can’t disagree. I don’t have any DNA evidence or rape kit. The evidence was washed away the next time she took a shower. This little girl was trying to hide it from her momma. Maybe she was embarrassed. Maybe she was ashamed that the let this guy talk her into opening her legs for him. The only reason her momma found out and pressed charges was because there was a problem. If she hadn’t started bleeding, well, we wouldn’t be here. Lil Smurf would have gotten away with this. We’re here today, because we have a momma who cares about her daughter. And when she saw her daughter having problems, she took her to the doctor to protect her. In a twisted way, we’re lucky she started having problems, and we’re lucky her mother found out. Because that momma cares. Just like each and every one of you who are mommas would.”
And I looked over at the bitch.
“Now the victim comes in here today, for the first time ever, conveniently on the day of trial, and tells all of us that he defines sex differently than you and me. The old Bill Clinton defense. And I’m asking you not to buy it. Who has the motive here? You think this 13 year old girl wants to get up on this stand and tell you twelve jurors and two alternates - 14 complete strangers - that she’s been out having sex? That she got in the bed with this guy, then went back to her 6th grade classroom? No. Look at her. She’s a little girl. She needs your protection. And when she tells this predator, this Lil Smurf, how old she is, he tells her to get out of his face, that he doesn’t believe her. That’s what we’re dealing with here folks. Willful blatant disregard for her age, so he can stick it in her. That’s right. Stick it in her because he’s in a position of power. He’s an adult, and she’s a child. And that’s a crime, and our laws are designed to protect children. Her mother wants to protect her. I want to protect her. So I ask you to follow the law as it has been given to you, and protect this child.”
And though the mother and daughter wouldn’t talk to me during deliberations, mad at me because I prosecuted “Lil Smurf”’, those fourteen strangers found him guilty two hours later.
A week later, the judge sentenced Smurf to twenty years, with fifteen suspended and five to serve. The victim’s mother begged for mercy. The defendant’s mother vomited on the floor in open court. The money was never mentioned again.
