Rocks, Hard Places and Writs of Attachment

Last night, Channel 2 KPRC's Jace Larson profiled the disturbing story of a sexual assault victim who had been placed in the Harris County Jail on a Writ of Attachment after having a nervous breakdown in the trial against her attacker.  The details of the story are mortifying:

After a rape victim named Jenny had an obvious mental breakdown while testifying against her attacker, Harris County prosecutors decided the best way to make sure she'd return to complete her testimony was to lock her up in the Harris County Jail.

From there, things went from bad to worse.  The report, paraphrasing the lawsuit filed on "Jenny's" behalf by attorney Sean Buckley noted:

Buckley says his client was put in jail without due process, given a black eye by another inmate while kept in jail for nearly a month over Christmas. Jenny also suffered injuries when she was punched by a jailer after she attacked the guard. Jenny was charged with assault but prosecutors later dropped the charge. 

The idea of arresting the victim of an Aggravated Sexual Assault on a Writ of Attachment is a PR nightmare, isn't it?  It certainly flies in the face of a District Attorney's Office mission statement to seek justice for the victims of crime, right?  Are prosecutors so desperate to win their cases that they will stop at absolutely nothing?  Even if it means locking up a mentally ill victim of rape?

Well, ultimately, although the actions taken by the District Attorney's Office may have been illegal, the motivation isn't quite as sinister as the news article would make it out to be.

The case surrounds the trial of Keith Hendricks, an accused serial rapist who was believed to have targeted homeless women in Downtown Houston.  His case had previously garnered media attention when the media was focusing on the backlog of DNA testing from HPD.  A glance at this article from March 2015 notes:

Another suspect, Keith Edward Hendricks, a homeless man convicted of a 1978 rape in Indiana, is now facing four sexual assault charges from 2006 to 2013.  Officials said Hendricks attacked homeless women, luring them to abandoned buildings and raping them, sometimes while brandishing weapons such as a box cutter.

A kit in the city's backlog first tied him to a 2006 sexual assault.  One year after that alleged rape, he was ordered to submit a DNA sample on another sexual assault charge.  Had officials tested the 2006 kit, it might have spared a victim in an alleged 2013 rape. 

But the women accusing Hendricks of rape may have been difficult to put on the stand, said Jane Waters, head of the district attorney's special victims bureau.  Many of the women were homeless, and some had drug or alcohol addictions. 

Although a brutal crime still is not ever justification for breaking the law, this does give some insight into the scenario that arose around "Jenny."  The D.A.'s Office had evidence indicating that Hendricks was targeting transient and mentally unstable women, and Jenny apparently fit that description.  The prosecutor tasked with handling that type of case has a tremendous challenge of getting his witnesses to just show up.  Obviously there is a public safety interest and justice needs to be served, but that can be easier said than done.

The prosecutor on the case was Nic Socias, who is named in both the KPRC story and Buckley's lawsuit.  I know Nic and I've worked on cases with him.  He is a good prosecutor and an ethical one.  In my experience, he's always been a standup guy.  Unfortunately Nic found himself in the middle of a trial where he was not only prosecuting a man accused of doing horrible things, but also one that was a continuing danger to people just like "Jenny."  Her breakdown on the stand may or may not have been expected, but her unreliability certainly had to have been anticipated.

To take a dangerous man off the streets, Nic had to have Jenny's testimony.  The problem he had was there was no legal mechanism for making sure that Jenny came to court.

As Buckley noted in his Complaint:

Texas state law authorizes a judge, upon request by a party, to issue an “attachment” order and/or a “witness bond” to hold a material witness in custody without bail, or release her subject to posting bail, respectively. An attachment order was unauthorized because [Jenny] was not subpoenaed as a material witness and was not a resident of Harris County. See Arts. 24.12 and 24.14, Tex. Cd. Crim. Proc. Nor could [Jenny] be held on a witness bond, since the applicable statute prohibits jailing witnesses who are, as [Jenny] was, financially unable to post bond. See Art. 24.24, Tex. Cd. Crim. Proc.

Article 24.12 states that a writ of attachment is possible for "a witness who resides in the county of prosecution," but in this instance, Jenny was apparently a resident of Gregg County.  I'm not sure about the allegation that she hadn't been subpoenaed as a material witness, but that jurisdictional issue could potentially be a big problem.  Additionally, Article 24.24 does clearly state that if "any witness is unable to give security upon such bail, he shall be released without security."

What followed after the Writ of Attachment was executed on Jenny was a series of unfortunate events that continuously went from bad to worse.  Although initially Jenny was being housed in a mental health facility, she ultimately ended up in the Harris County Jail.  Once in the jail, Jenny was treated like any other inmate accused of a crime.  She was listed as being there for a Sexual Assault case, and apparently jail personnel missed the designation of her being there as a Witness, rather than as a Defendant.

As Buckley notes in his Complaint, what happened to Jenny after that does truly resemble a Kafka novel.

“Someone must have slandered Josef K., for one morning, without having done anything truly wrong, he was arrested.” —Franz Kafka, The Trial.

Ultimately, what happened to Jenny is what we risk when we follow the adage of "well, we've always done it this way."  Uncooperative witnesses who prosecutors know (or believe) won't show up for trial get Writs of Attachment filed on them.  Unfortunately, it doesn't appear that the parties involved looked at the Code of Criminal Procedure before taking Jenny into custody.

In most instances of Writs of Attachment, the witness is held overnight or for a few days at most.  In Jenny's case, there was a break in the trial for the Christmas holidays that led to an extended stay for her.  That's how all Hell broke loose.

Whether or not the D.A.'s Office and all the named parties in Jenny's lawsuit are protected by governmental immunity is something that will be decided by the Federal courts.  I don't practice civil law, so I won't make any predictions.  I do think Jenny's rights were violated and what happened to her compounded an already tremendous tragedy.

That being said, I have a hard time throwing any stones at Nic Socias or the District Attorney's Office.  Prosecutors often have to proceed on cases in the interest of justice, even when the victims don't want to cooperate.  I can recall more than one case I prosecuted where a child was being sexually abused by an adult relative and nobody in the family wanted it prosecuted.  To accuse Nic or the District Attorney's office of not caring about Jenny or other victims of sexual assault is just simply not true.

Unfortunately, the road to Hell is often paved with good intentions, and this whole incident reminds me of the infamous quote from Vietnam that said, "It became necessary to destroy the town to save it."

Whatever the outcome is of this case, I feel sorry for all involved.