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Was rape trial fair?Tue, 03/31/2009 - 3:58pm
By: John Munford
Did girl’s story alone convince jury, or did they convict based on prior offense of child molestation? The defense attorney who represented a Sharpsburg man convicted of raping a then-16-year-old girl at her Tyrone home in 2006 contends his client was convicted last week because the jury was allowed to hear that he admitted to molesting and sodomizing a 4-year-old girl when he was 14 years old. Attorney Steve Harris contends jurors made up their minds to convict his client after hearing of the molestation case and the probation-only sentence that Zach Higgins, now 21, received in the Coweta County case. “I think the jury heard that and said, ‘Are you freaking kidding me? He didn’t get punished for that?’” Harris said. Harris contends after jurors made that decision, they were going to convict Higgins no matter what. District Attorney Scott Ballard contends the molestation case was legitimate evidence, but ultimately the jury was swayed by the credibility of the victim, he said. Friday morning, Ballard said he ran into a juror at a local restaurant who told him one of the main reasons he voted to convict was because of the victim’s credibility during her testimony. That juror “indicated that he thought — because she was willing to talk about things so honestly that would’ve helped the defendant — they believed the other things that she said,” Ballard said. Ballard noted that the victim admitted to having a crush on Higgins and that she was “kind of okay” with him initially kissing her that night at her home while her parents were away. Higgins was 17 at the time, and the girl was 16. Ballard said he heard from the mother of a second juror who told him it was the victim’s testimony that also “swayed him” to convict, Ballard said. “I’m encouraged by that, and the girl is encouraged by that,” Ballard said. The decision was made for Higgins to avoid testifying largely because the molestation evidence was in play, Harris said. That prevented the jury from directly hearing Higgins’ version of events. “After the jury heard he had been convicted of child molestation, who really was going to believe him anyway?” Harris said, adding that Higgins’ testimony would have allowed the state to “intensify even more” the molestation conviction. “That was the albatross around our neck,” Harris said. The guilty verdict and subsequent 35-year prison sentence for rape and aggravated sodomy in last week’s case sparked an outcry from friends of Higgins and others who have questioned how a rape case from nearly four years ago with no physical evidence could result in 12 jurors voting Higgins guilty. There have been more than 250 comments on the case online at TheCitizen.com. Superior Court Judge Johnnie L. Caldwell Jr. declined comment on the case except to note via his secretary that he sentenced Higgins to the minimum amount of prison allowed by Georgia law for a rape conviction. Caldwell also sentenced Higgins to an additional 10 years on the aggravated sodomy. Harris contends jurors should never have heard about the child molestation case and particularly the fact that Higgins was sentenced to probation. Ballard said the molestation conviction was important because, except for one additional sex act in the molestation case, Higgins was accused of doing “the exact same thing” to the Tyrone girl that he had done to the 4-year-old in the molestation case. “That’s pretty strong evidence,” Ballard said, noting that jurors are not allowed to use such “similar transaction” evidence as evidence that the defendant committed the alleged rape. Harris noted there was no physical evidence in the case such as torn clothing. Also, the victim didn’t confide in anyone to allege that she was raped soon after the incident, he said. The victim didn’t come forward with the allegation until two and a half years after the alleged incident took place, he added. Harris also pointed out that the victim continued to work with Higgins at the Partner’s Pizza restaurant in Tyrone for some time after the alleged incident took place. Ballard said rape cases don’t always include physical evidence. And rape victims don’t always react the same way to being traumatized sexually, particularly so when the victim is young, Ballard added. “We have this image of a rape victim as immediately running to the police, while their clothes are ripped, and being immediately and noticeably to everybody in the world distraught about their attack,” Ballard said. “But I think that’s a stereotype that probably causes rapists to get away with their acts at trial.” The victim testified that her parents weren’t home when she let Higgins inside after he came over unannounced one day during the 2005 Labor Day weekend. She said Higgins removed her shirt and her pants over her objections, but that at one point she stopped protesting because, “I figured he wasn’t going to go away unless I did what he asked.” The victim testified that she didn’t come forward right away because she was ashamed and didn’t want anybody to know. She testified that she told her parents about the incident last year during a conversation with them about how they disapproved of her then-boyfriend (not Higgins). The defense presented five witnesses who claimed that the victim bragged about the sexual encounter afterward. One of those witnesses wasn’t even a friend of Higgins, Harris said. The victim in her previous testimony said whenever someone brought up the sexual encounter with her, she would try to end the conversation quickly. “The question is, was she acting then or was she acting on the witness stand?” Harris said. Harris filed a motion for a new trial Monday, claiming the court erred in part by allowing the molestation verdict into evidence because it unfairly creates a prejudice against Higgins. Harris is also challenging the jury’s verdict, indicating it wasn’t true to the evidence presented at trial. The motion also challenges the instructions given to the jury by Judge Caldwell as to the limited nature in which they could consider the child molestation evidence. Although Caldwell presided over the jury trial, it was Chief Superior Court Judge Paschal A. English Jr. who initially ruled in a pre-trial motions hearing that the state could present the child molestation case as a “similar transaction.” Harris noted the court’s ruling was the conviction could be presented but could only be considered by the jury to determine the defendant’s “bent of mind and course of conduct,” Harris said. Harris thinks Caldwell’s instruction to the jury prior to their deliberations expanded upon English’s prior ruling by allowing jurors to consider the child molestation conviction for other reasons. The motion for a new trial will allow for the several weeks needed to complete the transcript in the case, which then will be sifted through to determine if any other mistakes were made in the trial, Harris said. Once that happens and the court rules on the motion for new trial, the process of appealing to a higher court can begin, Harris said. Higgins is currently confined in the Fayette County Jail. login to post comments
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