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Carrie Smith
November 23, 2009 Sam Medrano, Judge RE: STATE OF TEXAS VS. ROBERT JOSEPH SMITH Cause No. 20070D00935 The Honorable Judge Sam Medrano: My son, Robert Smith has given up his constitutional rights to a fair trial before a jury of his peers. He has given up the right to complain about an illegal search warrant. He has given up the right to appeal the injustice perpetrated against him. He has given up the right to question his accusers. He has given up the right of freedom of movement and actions. He gave up these rights when he pleaded guilty to crimes for which he was falsely accused and for which no evidence existed except the testimony of a vindictive 16-year-old girl. Robert Smith gave up his home, his possessions, and the right to see his five-year-old son when he took the advice of his attorney and did not answer nor attend the hearing for a protective order against him. The same protective order required him to attend counseling for sex offender, battery, drugs, alcohol, and anger, etc. The judge relented and did not require sex offender counseling because of the criminal case against Robert, but barred him from seeing his son until he has counseling. The other counseling programs would not accept him because he did not have a problem with battery, drugs, alcohol or anger, etc. My son’s wife left him because he did not make enough money, he missed a food stamp appointment while she was vacationing out of town, and she had a boyfriend. Six months after she left him, when it was time for the income tax refund, his stepdaughter called and told him that if he did not give her mother the income tax refund, that she would accuse him of sexual assault. Robert talked to his wife, Monique, and she assured him that although she and her daughter, Nataliah had discussed the threat, they would never really do it. Robert believed they would never do anything like that. We made many mistakes during the following thirty-two months. Robert’s first mistake was that he believed Monique and did not report the attempted extortion to the police right away. My first mistake was that I advised Robert to not give in to the demand because if the extortion worked one time they would try it again and again. Our biggest mistake was that we had a strong belief in our judicial system. We believed that the job of the police was to protect the innocent and the job of the courts was to ensure justice. We believed a person was innocent until proven guilty and we believed in our constitution, our laws, and basic human decency. Robert Smith was arrested five days after the attempted extortion. He was dumped into a system designed to provide protection and justice, but instead intimidates, demoralizes, and terrorizes. We soon learned that an accused person is considered guilty and deserving of nothing more than contempt – especially if the accusation is for sexual assault. This show of contempt extends to the family and friends of the accused. Actually in the state of Texas if a person under the age of 18 accuses anyone of sexual assault no proof is necessary. The testimony of the child is enough to convict the accused. (Texas Code of Criminal Procedure Art. 38.07). The author of a law that says a child can not lie or be mistaken surly never raised a child. I can not believe that no one has challenged this law. Of course at first we thought the arrest was a mistake because even with an accusation there must have been an investigation – and an investigation must clear the innocent of any wrong doing. Those of you who work in the judicial system will laugh and think that no one can be so naive. But I assure you that there are still millions of people in this country who have faith in our system. We, no longer, are numbered among them. No one in our family had ever been in trouble before and we did not know what to do. We thought we knew how the system was supposed to work but we did not know how it actually worked. We needed someone who could tell us what was going to happen and what we should do. When we tried to talk to the police they ignored us or treated us with contempt because we did not already know what was happening and because if a person did what our son was accused of then we did not deserve respect. We know that every accused is entitled to a lawyer even if he can not afford one. Robert qualified for a public defender but we soon learned that just because you ask for a lawyer does not mean you will get one right away. It just means the police will not talk to you until a lawyer is present. While Robert was in jail he became acquainted with inmates who had been in jail for weeks or even months waiting for a public defender to be assigned to them. We were scared and decided we should not wait for a public defender. That was our next mistake. Robert did not have any money but we took all our savings and hired an attorney. Of course we did not know how to choose a lawyer or how much it would cost. We chose this attorney because he said he was the best lawyer in town for this kind of case. Other people around town told us the same thing. He also charged a flat fee instead of charging by the hour. We felt more secure because with a flat fee we knew what the charge would be and we could plan. We did not know that the reason he charges a flat fee is that he works very few hours on cases….at least in Robert’s case. Robert’s attorney was able to get the bail reduced and advised on how to get Robert released from jail and a few months later he obtained and gave to us copies of witness statements to the police. We are not really sure what the job of a lawyer should be but we are pretty sure he should have done more. Some of our complaints against the attorney are the following:
These and other concerns were written in “Client/Attorney Notes” and given to Robert’s attorney’s office personnel. We do not know if he ever read them. We do not know if he ever read the witness statements to the police. It seems to us that if he had read them he could not have advised Robert to plead guilty. We came to realize that the attorney probably had never represented an innocent person and actually did not know how to conduct a defense. It is certain that he never investigated the case. He never interviewed the accuser or other witnesses. He never interviewed the list of character witnesses that Robert gave him. When we had concerns and needed to talk to the attorney, the standard response was “you need to stay calm and let us do our job”. Well, he did not do his job. At first the attorney talked about how we should delay the trial as long as possible. He said the longer the trial took the easier it would be to catch the witnesses in lies. For eighteen months he talked about going to trial and how he would win it. Then he said we were definitely going to trial so we needed to finish paying the fee plus the extra trial fee. We dug a little deeper and paid the balance and we went to trial. We were not able to seat a jury and the trial was delayed again. With his fee paid, the attorney began talking about Robert pleading guilty. The District Attorney said that they had found child pornography in the evidence they had taken from Robert’s home two years earlier. (Remember, we know that the search warrant was illegal but Robert’s attorney said a judge would not agree) During the search of Robert’s home Detective Russ-Cook advised that they had found child pornography and would be obtaining an additional case number. Actually they never got another case number because it turned out that what they thought was child pornography was actually an advertisement on the back of an (adult) pornography magazine. The DA said they would charge Robert Smith with child pornography and then drop the charges if he would plead guilty to the original sexual assault charges. Robert refused but his attorney began telling him that chances are that a jury would find him guilty and he would get life in prison. Robert had no idea what evidence the DA could have since he knew he did not have any child pornography. Robert’s attorney said he would arrange for Robert to go look at the evidence but the DA said the policy was to not let the accused see the evidence until after he was charged. The attorney did look at the evidence and determined that the girl in the picture MAY have been under 18. The other pictures were too fuzzy to determine what they were. Monique and the children had not lived in the home for six months but she still had a key and continued to enter the home while Robert was at work. She had falsely accused him before of having child pornography on his computer so now Robert could not be sure she had not planted evidence. The DA said they would not charge Robert with child pornography if he would plead guilty to the original charges. And now Robert’s attorney reminded him that he was looking at life in prison and Robert gave in – gave up his rights – gave up his son – gave up his freedom – gave up any chance at a normal life. Well, extortion got him into trouble and the justice system did not do any thing about it so it is only reasonable that they would feel comfortable doing the same thing. In addition to the probation, fine, and community service, Robert also has to register as a sex offender. The sex offender registration program is a useless joke. There are hundreds of thousands and possibly millions of registered sex offenders. We do not want them in our neighborhood. We do not want them to talk to our children. We do not want to be served by them where we do business. But, how many registered sex offenders did not do anything but were intimidated into pleading guilty? And how many true sex offenders are not registered because they pleaded guilty to a lesser charge and they are walking around free among us? Robert has never earned a high salary and with the problems of the last three years he earns even less now. Our reserves are gone and it will not be long before Robert misses a fine, fee, or child support payment and thereby violate his probation. He will end up in prison anyway – without a trial, without any evidence against him, without even doing anything wrong except believing in human decency. Robert will not read this letter. He is still afraid
of consequences if he complains about or shows disrespect for the judicial
system. But, Your Honor, at anytime during the last 32 months you could
have reviewed this case and ensured justice. At any time the District
Attorney could have opened his mind to the possibility of innocence and
reviewed the case with fairness. At any time, the police detectives could
have compared witness statements and realized that there were other
questions that should have been asked. And at any time Robert’s attorney
could have taken this case to trial and insisted that the DA show evidence.
But injustice is not just about breaking the letter of the law. It is mostly about breaking the spirit of the law. We would like to see Texas Code of Criminal Procedure Art. 38.07 changed. This law, in effect says that a child can not lie or be mistaken about sexual assault. In this case, a 16-year-old girl had just learned that Robert was not her real father and threatened to accuse him if he did not give her mom money. She accused him of sexual assault during the ages of 9 to 13 so the alleged assaults had ended three years before the accusation. We would like to see our police force learn to investigate crimes with the goal of collecting evidence so we can actually convict the guilty and clear the innocent. We would like to see law schools teach court room procedure and teach lawyers, both defense and prosecutors, how to actually put on a case instead of relying on confessions and plea bargains. The time the lawyers spend on preparing for trial and gathering evidence should be at least equal to the time they spend trying to get the accused to confess and plead guilty. We would like to see our police department and prosecutors treat the accused and their families with respect and dignity and for the system to use a little common sense in dealing with accused sex offenders and all accused offenders. And we want to bring to your attention the need for an accused advocate. We have many organizations who give support to victims – even if they are false victims. But no one thinks the accused deserves assistance and advice – even if they are falsely accused. And yes, we would like for Robert’s attorney to return part of his fee so we can hire a lawyer to help get visitation rights with Robert’s (soon to be) 8-year-old son. He has not seen his son since his 5th birthday. As a registered sex offender he may not be able to ever see him again. We would like for the police to return Robert’s property seized with the illegal search warrant – or at least give us a list of what was taken. Judge Medrano, I would like to hear from you. I need to hear from you. My son finally pleaded guilty because he had given up hope of justice. He is beaten but I am not. I am sending this letter to others in the hope that someone can explain to me how this could have happened. Sincerely yours, Carrie Smith CC:
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