Blackstone said that it's "better that ten guilty persons escape than one
innocent person suffer." "Blackstone's ratio"
In court, you want to maintain the impression that the truth has
everything to do with who should win.
Learn to listen and respond to your opponent's arguments.
Don't overlook fallacies and empty rhetoric. Recognize when they are being
used to deceive the jury with erroneous thinking.
Understand the weak points in your argument and shore them up.
In the courtroom argument, you will disagree with the ultimate conclusion of your opponent. You and your opponent are not trying to persuade one another as you might in a casual two party discussion or even in a negotiation session. Instead, in courtroom argument you are each trying to convince and persuade a silent third party, the jury, to adopt your position over the opponent's.
Introduction
This transcript presents the jury argument by Rusty Hardin (1), one of the nation's best criminal defense lawyers, and his able associate Derek Hollingsworth, in a sex crime case charging Calvin Murphy, a popular Hall-of-Fame (1) basketball sports figure, with sexual abuse of five of his daughters. You can read about the background of the charges and the eventual jury acquittal of Mr. Murphy on all charges. - (1 - charges), (2 - acquittal), (3 - a juror talks about the verdict + numerous links to history of the case) [Note: Murphy was also a world class baton twirler - (1) ]
Contents
TRIAL COURT CAUSE NOS. 982444, 982445,
982446, 982447, 982448, & 982449
Harris County, Texas
THE STATE OF TEXAS
VS.
CALVIN MURPHY
PROCEEDINGS - OPENING PORTION OF DEFENSE JURY ARGUMENT
BY DEFENSE COUNSEL HOLLINGSWORTH
THE COURT: Counsel, you may proceed. [Notice that the opening portion of this defense jury argument, very ably delivered by Mr. Hollingsworth, the younger and less experienced member of the defense team, does not deal with the facts. Instead, it focuses on the law - the prosecution's burden of proving guilt "beyond a reasonable doubt." Consider whether the burden of proof , the presumption of innocence, and the concept of reasonable doubt allow the defense to sit back and require the prosecution to prove its case. (1), (2 - Victor v. Nebraska, 511 U.S. 1 (1994).]MR. HOLLINGSWORTH: Thank you,Your Honor. (Defense counsel puts his "This case is not about the accused's 'family tree' " theme before the jury, i.e., contending that the prosecution had tried to turn the case into a moral referendum on the defendant's sexual promiscuity rather than a trial of sexual offenses.) From the very first day of this trial, the State's focus in this case has been on the family tree and not on a felony offense. Some of the very first words out of Mr. Long's (the prosecutor) mouth during his opening statement were, "This is a story of a dysfunctional family." He put up on the board the Calvin Murphy family tree. He talked about the various children that Calvin Murphy had. He talked about the women with whom he had those children. He described Mr. Murphy's motives in this case as some sort of divide and conquer ploy to sexually molest his children. He likened Mr. Murphy to Quentin Tarrantino making some sort of movie with multiple plots. Even in Miss Stort's (the other prosecutor) closing statement, she couldn't help, even though she told you this is not about Calvin Murphy's family tree, even though this is not a referendum on Mr. Murphy's family and his life, she couldn't help but mention that he got three women pregnant at the same time. (The prosecution investigation was "clouded" from the outset when it learned of the defendant's sexual exploits, i.e., having fourteen children by nine different women.) Ladies and gentlemen, the State's view of this case was formed very early in this investigation. Almost at the outset, they learned that Mr. Murphy had fourteen children from nine different women. And, that fact clouded everything that they did in this case. It clouded them, and it clouded their investigation. You can see it in the fact that they interviewed and believed the testimony, the questionable, questionable (Note the repetition.) testimony of five complainants. You can see it in the fact that they didn't follow up on the basic things that every investigator and every prosecutor ought to do in a case like this. You can see it in the fact that they filed charges in this case without ever talking to one of the most important people - this man right here (indicating the accused), Calvin Murphy. You can see it just as much in the evidence they collected and presented to you as you can from the evidence that they flatly ignored. (Note the rhetorical use of the same phrase at the beginning of the last three (triad) sentences. The defense counsel emphasizes that the police investigators and prosecutors failed to question the accused during the investigatory stages.)(Defense counsel tells the jury what the case is not about, i.e., the accused's family tree, and what it is about. Note the repetitive use of the same phrase "not about" at the beginning of each of the three following sentences.) This case is not about Calvin Murphy's family tree. It is not about whether he was a good or bad father. It is not about whether he sent Christmas cards and birthday cards and called his children or spanked his children, or put food in the pantry or not. (By contrast, counsel now tells the jury what the case "is about.") This case is about whether or not the State of Texas has proven to you beyond a reasonable doubt that Calvin Murphy molested five of his children over a decade and a half ago. That is what this case is about. (Defense counsel talks about the jury instructions and what isn't and what is in those instructions.) Just a second ago, the judge read to you the jury charge. You are going to get these when you go back in the jury room. The charges in this case carry the universal instructions and rules you are going to consider when trying to formulate a decision in this matter. Nowhere, nowhere (Note the repetition of the word "nowhere.") in any of these documents will you see any mention, or will you be asked to pass judgment upon whether or not it's okay to have children outside of wedlock. Nowhere will you be asked to pass judgment on whether or not Mr. Murphy was a good father. Nowhere will you be asked to focus on ninety percent of the things the State focused on and the witnesses focused on during this trial. It will not be in there. You will be asked, just as Judge McSpadden told you, one important question in every charge: Did the State prove to me beyond a reasonable doubt that these offenses occurred. That's what you will be asked. (Defense counsel explains that his opening argument will be directed to discussing the law; he informs the jury that co-counsel, Mr. Hardin, will discuss the facts in the closing portion of the argument.) Now, in a moment, Mr. Hardin is going to stand up and summarize all the evidence in this case. I'm not going to touch that at all. What I would like to do in my brief moment before you is talk just a few minutes about a couple of items in the charge. (Defense counsel discusses the burden of proof beyond a reasonable doubt.) First, the burden of proof. The State's burden of proof in this case is beyond a reasonable doubt. I think at the outset it's important for you to remember that criminal cases are not referendums on innocence. I think that every one of us at our table would love to believe that through our witnesses and through our evidence we have proven to you that Mr. Murphy is innocent. But, that is not our burden. That is not our burden. (Note the repetition.) The burden of proof in this case - and it says so in the charge, the Judge just read it to you, and I guarantee to you the State will acknowledge it - the burden of proof in this case on each of these charges begins and ends with the State of Texas. (Note that counsel guarantees the jury that the prosecution will admit its burden of proof.) They have to prove to you every single element of every single charge through the witnesses and and through the evidence they put on the stand. That's what they have to do . No more, no less.You may believe when you go back in the jury room that none of the five complainants in this case are believable or credible. And, if that's the case, go home, we're done. (Note that this may have been what the jury did; the verdicts in all six cases were returned in less than two hours, one and a half of which involved the jury stalling so it wouldn't look like their verdict was hasty.) But, we brought you other pieces of evidence that they either ignored or didn't care to bring to you so that it would help you make your decision in this case. So you could help reflect on whether or not you found these complaints credible, about whether or not you believe them. That's what we did. But, please, by doing that, never mention during your deliberations whether or not we have proven anything to you, whether or not we have established anything with you. That is never our burden of proof to do in this case. I'm sorry to harp on it so long, but it is so, so very sacred and so, so very important to our criminal justice system. You must always ask yourself, has the State of Texas, by and through the witnesses they have brought before you, have they established beyond a reasonable doubt each and every element of each and every charge that they have before you. That's exactly what you're supposed to to do.(Defense counsel now turns to the concept of "reasonable doubt.") What does beyond a reasonable doubt mean? It's going to be a very important phrase that's going to be in every single charge. It's going to be talked about in every single charge that you get. Beyond a reasonable doubt is the absolute highest , the absolute highest, (Note the repetition.) burden of proof that we have in our legal justice system. It applies only to criminal cases, and it serves a very important purpose. It helps ensure that innocent people aren't convicted wrongfully of crimes. It is the exact burden of proof that you or I would want applied to us if we were wrongfully accused of a crime and we were on trial. (Note how counsel personalizes the cherished value of the BARD burden to the jurors.) I cannot give you a definition of what it means. (Defense counsel makes it clear that there is no legal definition of reasonable doubt but cautions the jury that resonable doubt can be something other than "a gut feeling.") It is not, as Miss Storts (the prosecutor) said, a gut feeling. I can promise you that the Judge will never tell you what it means. I cannot tell you what it means. The State cannot tell you what it means, and it will not be defined in the jury charge . Our law doesn't allow us to do that. (Defense counsel makes sure that the jury knows there is no legal definition of "reasonable doubt' in Texas and tells the jurors that none will give them a definition of this concept.)(Defense counsel by analogy indirectly asks the jurors to assume in deciding if the evidence removed all reasonable doubt that the penalty for the crimes charged was the death penalty.) By way of analogy, I can tell you that the burden of proof in this case, beyond a reasonable doubt, also applies to death penalty cases where the ultimate issue is life or death. Just like it applies here. So, when you're back deliberating, when you've asked yourselves, "Do I believe the five complainants in this case? Did the State prove to me the elements in this case beyond a reasonable doubt?" ask yourselves, would you base your verdict on the testimony of these complainants if the ultimate issue were life or death. It is the exact same burden of proof, the exact same one. (Note the repetition.) By analogy, that's how high a burden it is.(Defense counsel explains what "beyond any reasonable doubt" does not mean, e.g., "mights, maybes, and probably's.") Beyond a reasonable doubt does not mean that it you wonder whether or not the five complainants are telling the truth that you can convict. It doesn't mean that. Beyond a reasonable doubt does not mean that that if you think these complainants might be telling the truth that you can convict. It doesn't mean that. Beyond a reasonable doubt does not mean that if you even think they're probably telling the truth that you can convict. Folks, you have to be convinced that they're telling the truth about each and every element beyond any reasonable doubt. We don't send people to prison on "might be's, maybe's, and probably's."(Defense counsel explains that the burden of proof BARD applies to each of the six accusations; that each accusation must be considered separately; that the evidence of one does not prove the other; and that the jurors must unanimously agree on each accusation individually before they can return a verdict of conviction on that particular accusation.) And, that burden applies to each and every charge in this case. The Judge took a while reading the charges. There are six of them. They each stand on their own merits. It's not a pick-and-choose game. It's not a mix-and-match. We don't take something that one of the complainants said, like Crystal Murphy, and apply it to Itiah Murphy's case. We don't take something that Ebony said and apply it to Lajoya's case. Each and every one of these charges that you will get and receive and review must be judged on its own merits. You cannot go back there and say, "Well, one of us maybe believes a piece of what this one says. One of us believes maybe a piece of what this one said. One of us believes a piece of what this one said. So, eventually, we end up with twelve, So let's return a verdict." That's not the way it works. You must be unanimous on every single charge and every single element of that charge.(Defense counsel explains why he is addressing the requirement of proof BARD on the elements and the requirement of unanimity. Notice that he employs a rhetorical question and an analogy.) Now, I feel almost a little weird even talking to you about this part. Because, obviously, you know that it's our contention that none of these complainants are saying anything that's true about the charges in this case. So, why would I even bother to talk to you about the elements, ant that you have to be unanimous? (The rhetorical question.) Well, I guess it's like when I get in the car and wear a seatbelt. I don't think I'm going to get in a wreck, but I've got to do it just in case. (The seatbelt analogy.) Each and every charge in this case must be evaluated by you individually. You must ask yourselves whether or not, through the witnesses and through the complainants, they have given you proof that should satisfy you beyond a reasonable doubt that each element occurred.For example, in Itiah Murphy's case, where she is the complainant, the allegations are, "... on or about the 1st day of May, 1990, in Harris County, Texas, the defendant, Calvin Jerome Murphy, did then and there unlawfully, intentionally and knowingly cause the sexual organ of Itiah Murphy, a person younger than fourteen years of age and not the spouse of the defendant, to contact the mouth of Calvin Jerome Murphy." It becomes important when you are looking at these charges to focus on every single element. There's been a lot of testimony in this case. And, what's even more important, what's even harder is that all of this conduct that's alleged to have occurred happened over a decade and a half ago. And, the allegations span a period of time from about 1982 to 1984. And, folks, again, this is the State's burden of proof, to prove to you a specific act of sexual misconduct that occurred on a specific date. Granted they are allowed to allege "on or about." They're allowed to prove it happened "on or about." But, they still have to prove the specific act, and you have to believe it beyond a reasonable doubt.There's been testimony about conduct occurring all the way from Harris County to Fort Bend County, allover the United States. Again, on each charge, on each element, you have to specifically find whether or not it occurred within this jurisdiction. Again, I feel a little bit weird talking about some of this because it's our contention that none of it is true. I think that is what the evidence has shown in this case, but I have to talk to you about it. (Defense counsel caustions the jurors to examine each charge separtely.) Every single charge must be analyzed separately. every single element of that charge must be discussed, and you must find factually that you believe beyond a reasonable doubt that each element occurred before you can convict this man of a crime. (Defense counsel concludes this opening argument with a quotation from an unnamed source. He asks the jurors to lift the pain and anguish and injustice that have been visited upon the accused.) Before I leave you and sit down -- I'm basically done -- I want to leave you with some words that a great man said that I think apply to this case. He said, "The greatest excitement, the greatest fulfillment that a human being in this life can have is to lift the pain and anguish of another, if it can be done in justice." Ladies and gentlemen, at the end of this case, we will ask you to lift at long last some of the pain and the anguish and the injustice that have been caused by the fact there are five complainants who have falsely accused Mr. Murphy of these crimes.(Counsel frames his final appeal in terms of the jury's power to prevent any further wrong being done to the accused.) Calvin Murphy will always have to live, always have to live, with the fact that five of his daughters came to this courtroom and falsely accused him of molesting them. But, you can in some small way help remove the pain of that sting. And, if you do that, and if you follow the court's charge, and if you hold the State to their very high burden of proof in this case, I assure you and I promise you that justice will be done. Thank you. [Editor's Note: Trial is a morality play about right and wrong. Righting an injustice (wrong) or preventing an injustice (wrong) are two universally acceptable morals that often play into a winning case theory.]THE COURT: Thank you, counsel.
PROCEEDINGS - CLOSING PORTION OF DEFENSE JURY ARGUMENT
BY DEFENSE COUNSEL RUSTY HARDIN
THE COURT: Mr. Hardin, you may proceed with the closing portion of your argument. (Note that Mr. Hardin, the senior member of the defense team, delivers a fact driven argument that concentrates on the facts, the absence of facts, and logical inferences that can be drawn form the facts. This closing portion of the defense jury argument is four times the length of Mr. Hollingsworth's opening jury argument. Notice that Hollingsworth's and Hardin's arguments are delivered back to back because in Texas the defense is sandwiched between the prosecution's opening argument and closing argument.) MR. HARDIN (Co-counsel for Mr. Murphy) It was thirty days or more that we began this case. These are the handwritten notes of testimony. These are notebooks of testimony. And these are my copies of some slides that we will probably show you during my talk. (Note: One of the lawyers for Mr. Murphy always took copious notes of the testimony as was given; the defense did not receive daily copy, but the lawyers made every effort to transcribe the key testimony exactly as it was given. The jurors saw this. Many of the inconsistent and otherwise impeaching statements of the complaining witnesses was placed on the slides that defense counsel refers to. The reference to the notes is also an affirmation of the wholehearted effort that the defense lawyers made in keeping track of evidence that the jury would need in its deliberations. The fact that the defense lawyers were so diligent no doubt added to their ethos (integrity) in the eyes of the jury. ) I am scared to death.THE PROSECUTOR: I object , Your Honor. THE COURT: That will be sustained.DEFENSE COUNSEL: (Defense counsel reminds the jurors that the evidence had shown that the defense made the defendant available to the prosecution during the reenactment investigator stages of the case. The earlier proof has shown that the prosecution did not avail itself of the opportunity to interview the defendant; instead the prosecutors sought an indictment.) In our system, we operate on the assumption when the government investigates a crime, before it brings charges that can ruin someone, that they carefully, objectively and from all sides investigate. In our system, we assume that once charges are brought, a defendant will have a fair opportunity to contest them. The reason (state co-counsel first name) talked to you so much about reasonable doubt and all the offenses, and the fact that the defendant has no burden, and though we put on witnesses, and though we made Mr. Murphy available to them (indicating the prosecutors) to question if they chose to, at the end of the day, it's absolutely impossible for him to prove anything to you. (Defense counsel starts his sentence with an embedded command and places the jurors in the shoes of the defendant facing charges for incidents that allegedly occurred 14 years ago; he then asks the jurors a rhetorical question and answers it.) You have to consider as you sit there now that if someone were to challenge your conduct fourteen years ago, how would you prove it didn't happen.? If someone were to were to say that you did something to someone fourteen years ago, do you know which night you were in your home and which night you were not? Do you know who else was in the house that night and who was not? Of course you don't. And, neither does he. (indicating the defendant)(Defense counsel explains that the defense put the defendant on the stand knowing he could not disprove a negative.) And, so the whole reason, when we put him up on the stand for you to hear was with with realization from the beginning that there was no way Calvin Murphy would be able to persuade you of anything. There was no way Calvin Murphy could get on the stand and persuade you that something didn't happen. (Counsel poses a rhetorical question re proving a negative and answers the question. ) How do you prove a negative? You don't. And, the system recognizes that. That's why it says they (indicating the prosecutors) have the burden. If a defendant chooses to testify, he can. And, if he does testify, you can consider his testimony just like any other witnesses. You can accept part of it. You an accept none of it. You can accept all of it. (Defense counsel explains why the defense called the defendant to the stand, introduced him to the jury, and had him deny the alleged offenses, and passed him to the prosecutors for cross-examination.) But us putting Calvin Murphy up there and asking him questions for a day for his side of things would do nothing to move the ball forward on the issue of whether or not from 1982 to 1993 did he at different times sexually abuse five of his daughters. [Editor's Note re Strategy: Early in the investigation, the defense lawyers had offered to make Mr. Murphy available to the prosecution and to the Texas Ranger in charge of the case for an interview. The prosecution did not accept the offer; instead, they took the case to a grand jury and obtained indictments. As defense counsel Rusty Hardin closed his direct examination of the Mr. Murphy, he had asked the defendant: "Q: Did you offer to speak with the prosecution and submit to questioning by them during their investigation of this case? A: Yes sir. Q: And did they ever take take you up on your offer to talk with them and answer all their questions? A: No sir. Q: Well, now's their chance. Pass the witness." Students: Put that one in your trial notebooks.] (Defense counsel reminds the jurors that they got to hear the five complaining daughters on direct and on cross-examination and weigh their believability.) They have said he did. And, you have had an opportunity to observe them two different ways; On direct testimony, as they all cried at the appropriate time and sounded, I would suggest to you, very believable. And you had the opportunity to observe them when somebody who challenges their credibility, whether it was done badly or not I can't tell you. (Defense counsel takes the blame for rigorous cross-examination.) If it was done badly, I bear the responsibility. But, you had an opportunity then to start weighing as to whether what they were saying made sense. Did it appear believable, and did it comport with your common sense?(Defense counsel anticipates the prosecutor's argument on "jurors using their common sense.") You know prosecutors -- and I have no reason to believe that he (indicating the prosecutor) won't do it -- prosecutors regularly talk and ask the jurors to use their common sense. And, that's a legitimate request, and we join in it. Because what I'm going to want to do as we go through the evidence is point out some things for you to consider when you use your common sense. I would respectfully suggest these things call into deep question whether these young women are telling the truth. We didn't try and are not trying to satisfy you that they are lying. Because how do we prove they are? We can't.What we tried to do is call into question and suggest to you enough reasons that you could never reasonably believe beyond a reasonable doubt they they were telling the truth. And, if you have any reasonable doubt about any of the elements they are required to prove -- as Mr. Hollingsworth (co-counsel) said, at the end of the day, going down each one of them , then you are obligated under you oath to find him not guilty. This is not, as Derek (co-counsel) says, a referendum on what kind of man Calvin Murphy is. You can tell from Miss Storts' (the prosecutor) talk that that's from the very beginning what they wanted to make it. Now, the fact is I'm not apologizing at all about the kind of man he is in the true fabric of his life. He, and any person with any sensibility, would condemn the way he led his life with his wife and these multiple relationships over those years. That was wrong. There is no question about it. It should never have been done. But, right or wrong, it wasn't a crime, and it was between all of those people involved. It should not be and cannot be used as a way for them to bootstrap your decision into him being guilty of sexually molesting those girls.If I've heard once, I've heard a million times through this trial "fourteen children from nine women." You know from the evidence no DNA has ever been requested on any of them. He has never said he wasn't the father of any one of them. The case has been tried on the assumption, the belief that he was the father of thirteen of them. The State contended he was the father of fourteen of them, in spite of the fact that they never did enough investigation to discover that Miss Davidson had married and divorced the father of one of the children, Itiah. They never knew it. Because Itiah told them he was her father, because Itiah told them that her mother , that she was born as a result of a sexual liaison while her mother was in Houston Baptist. In spite of cold evidence to the contrary if the prosecutors had just checked the records, Itiah was his child, had when Phyllis Davidson was very young. All they had to do was check the public records and find out that Phyllis Davidson had divorced the father or Itiah in 1977, and in 1981 sought to terminate the parent/child relationship. If they had checked. Why didn't they check? Because they believed Itiah, and it fit their theory of Calvin Murphy. And, as Derek said, once they heard of the number of children and the number of women, everything flowed from that. What I want to ask you to please keep in mind as we go over the evidence is don't be sidetracked about a lot of these issues. And, focus solely on whether the allegations from the State by each of these five young women satisfy you beyond a reasonable doubt that they're true, and you take each of them individually. And, perhaps the easiest way for you to start is: Are you convinced beyond a reasonable doubt?" You might take them in the order they presented them, if you want. There is no magic in what order you consider them. You can start with the first one. (Defense counsel subtlety suggests the order in which the jury should consider the credibility of the five different complainants.) They put on Crystal first. You can resolve in your mind, if you choose -- it's up to you and your foreperson -- let's decide whether we believe beyond a reasonable doubt Crystal was sexually abused. And, then once you make a decision about that one way or the other, you move to the second one. The second one they brought was whom? Lajoya. You can decide whether Lajoya beyond a reasonable doubt is telling the truth about her situation. The next you got was Ebony. You could do then the same thing with her, the same thing with Itiah, and the same thing with Cameo. You have to, as Mr. Hollingsworth said, reach a unanimous verdict on each one to convict. You can always decide not guilty, not guilty, and we pray for that. But that is a way you might go about considering it. One of the things I want you to keep in mind as we go over this: why do we keep talking about investigation? As I am going to go over with you the chronology of what happened with Sergeant Carter and others, why do we keep mentioning that? In some ways Miss Storts (the Prosecutor) is right that what happened before the charges were filed doesn't address the issue as to whether or not he did it. I agree with that. But, if, as you are considering evidence, and though the Judge tells you that you cannot consider this indictment for any purpose whatsoever, and that the fact that somebody is charged or arrested for a crime has absolutely no probative value in terms of whether or not they have committed a crime, though he tells you that, all of you must remember that when we were in jury selection a number of you raised your hand in the belief to say where there is smoke there is fire. And, if there are charges and somebody is brought before the bar of justice, it may very well be that they have done something wrong. So, I want to show you how we got here, and then after we got here, what was really available out there that could possibly have kept us from being here and not made this all happen. But, regardless, at the end of the day, I'm trying to show you some of the things that we, from the very beginning, contend should have shown these are fabricated charges.
(Defense counsel starts a PowerPoint slide presentation in which he quotes from the testimony and sets a timeline of efforts by one of the complainants to contest the defendant's right to receive life insurance proceeds from the complainant's mother's death.) If we start with slide 1, I would suggest to you that this is a legitimate thing for all five. Where Crystal Murphy was asked, "Do you sometimes just make things up? Yes. Question: Any idea how we can tell when you are and aren't making things up? No" The case begins with a young woman who says she makes things up, and you'll never know when she is and when she isn't. It ends with Cameo, who Sergeant Carter (the Texas Ranger) says is when he made up his mind. You remember that? I kept asking him, "When did you decide this happened? When did you have an open mind, and when did you decide it happened?" Sergeant Carter says he decided after interviewing Cameo. And, Cameo, who was the last witness they had, is the one who said she was an actress. And, what she she said she meant by being an actress was that she acted like she loved her father to others, that she acted like everything was okay as a way of covering up. In many ways the women from Marching Thunder (a baton twirling marching band of youngsters lead by the the accused) were brought to you not to show you what a great guy he was, or to offer character, but for you to have an opportunity to see just how good an actress these kids must have been around others in terms of how they acted with their father during all these years during the abuse, and all of these years after the abuse.Let's keep in mind how they started. Now, I'm going to give two ways this investigation started, and then I'm going to suggest to you what the evidence clearly shows got this thing kicking to this stage of February 13th. Actually, before that, before I get to February 13th and how that happened, let's look how this thing really moved along. If I can, let's turn to number 2, (the PowerPoint Slide) please Bridget. Try to get out of y'all's way.January, 2003. Ebony testified she began contacting TRS and continued to contact TRS through 2003 about pension benefits. Now, keep in mind that's going to tie in in just a moment with the conversation with Miss Perrin. Remember? Which she says either happened in March, April or June of 2003 at the T-Mobile, but she believes it was March. And this just simply reinforces that. In the documents from TRS you can see, and from Ebony's testimony, she started contacting TRS herself in January, 2003. Thirteen months before these allegations are made to the Texas Rangers. Then in March, 2003 is a chance meeting between Jeanie Perrin and Ebony at the T-Mobile store. Think about that. That makes the meeting Miss Perrin testified about make all the more sense, because it is just three months before that that Ebony has been aggressively trying to get the money from TRS. And she has begun to make calls. If you recall her testimony, she was calling a couple of times, two or three times a month trying to get information. On December 3, 2003, the contact with TRS intensifies as Ebony leaves a message at TRS, memorializing on a call slip, requesting a return phone call. All of this is in the defense exhibits having to do with TRS files. December 16th, Ebony leaves another message at TRS requesting a return phone call. December 22, 2003, she leaves another message at TRS. December 3rd, January 4th. This entry is made based on Itiah's testimony. If you remember, Itiah testifies that she and her sisters, either in late December or January,early January of 2004 -- late December, 2003, early January of 2004 -- she and her sisters ask their grandmother to report the abuse to the Rangers. That's according to Itiah's testimony. Remember when they were asked, when did y'all decide to do it? Remember when Ebony and others are saying we're not sure when the agreement was made and so on. Well, Itiah says it was done in either December or early January.January 5, 2004, Ebony leaves a message with TRS requesting, quote, "a return call regarding my mother's benefits." January 8, 2004, Ebony leaves a message at TRS. January 9th, Ebony leaves a message at TRS. January 12th -- I mean, she is hounding these people, trying to keep this money that has been left to Calvin Murphy from going to him. January 12th, she calls on the anniversary of her mother's death. If y'all recall, Phyllis Davidson died on January 12, 1996, and on that anniversary, Ebony calls them again saying she wants information about benefits payable from her mother's account. February 7, 2004, Ebony writes to TRS to protest any benefits being paid to Calvin Murphy. February 9, 2004, Ebony calls and says she wants to know what she can do to stop payment of the benefits to Calvin Murphy. Call slip shows that Brian Zumper of TRS sent to Ebony Murphy a copy of Chapter 43 which sets out he procedures according to DO4 dealing with contested cases. February 13, 2004, the criminal investigation begins with a phone call to the Rangers on behalf of the Davidsons.(Defense counsel draws the evidence together and points out that it reflects that the complainant Ebony hated the defendant and that the complainants wanted to get even with the defendant.) That is the sequence, and it all dovetails completely. If you go back to the tattoo guy's, Bob Atkinson's, statement shortly after Phyllis Davidson died in '96, the kids are in there talking about how much they hate Calvin and they are going to get even with him. If you go to Jane Perrin's testimony that says in the spring of 2003 while it was still cold, she has this detailed conversation, that in a minute we'll get to, with Ebony, where Ebony is talking about how she hates her father and how they are going to get even. And, says Cameo is part of the group she's talking to -- all these calls in 2003, and then the agreement that the Davidsons will call the Rangers. (Defense counsel responds to the prosecutor's claim that the defendant is a person of power and influence, pointing out that, as aftermath of these sexual assault charges, he is a ruined man, and that the only question remaining is whether he will be branded as a felon and sent to prison. The point is that the complainants have already won their revenge.) Where does this idea and flow come from that Miss Storts (the prosecutor) and others keep talking about - the power of Calvin Murphy? About the only power I would suggest anybody could conclude that Calvin Murphy had was the power and discipline to get into the Hall of Fame at a height of 5' 10". Other than that, what power is there evidence of that Calvin Murphy has? What influence is there over others? He is a ruined man. They've already won because he's ruined. Now, the question is whether he's going to be branded a felon and go to the penitentiary. (Defense counsel says that the prosecution has already won in terms of ruining the defendant.) But in terms of what they want to do to him, that they told Bob Atkinson about, that they said repeatedly over three years, in terms of what Ebony told Jennie Perrin what they wanted to do, in terms of feelings they expressed, and the things Miss Storts (the prosecutor) has said about him and the things that Mr. Long (the prosecutor) is going to say about him, in that sense, they've already won.(Defense counsel continues with the timeline of his PowerPoint presentation, making light of the prosecution's Quintin Tarrantino analogy and it's further claim that the defendant orchestrated the sexual abuse for a period of eleven years and then quit.) Letter from February 20th. She (Ebony) gets a letter saying that the benefits will be paid to Calvin. They appeal it. Charges are filed. Now, let's see if we can't run through what happened on this. February 13th, investigation starts. We've got these first. He spoke to the Davidsons. Miss Davidson gives names of all five kids. If you want to know whether or not this thing was orchestrated, if you want to talk about orchestration, I don't know where they get this thing about how Calvin Murphy is this Quintin Tarrantino -- and I had to think which movies he had done and then when Mr. Long (the prosecutor) did that, I was thinking now how many of the fourteen people on the jury at that time have seen Quintin Tarrantino movies. How is that going to run? I don't know. I don't know. (Defense counsel emphasizes the improbability of the prosecution's theory of the case.) But, the basic thrust and theory here is that this Machiavellian guy (indicating the defendant) has somehow orchestrated this entire thing from '82 to '93 and then quit. Quit, folks. Quit. That is their theory. (Defense counsel sarcastically posits the prosecution's theory of the case.) That somehow this incredibly sick man that they describe, who is crawling into these children's' rooms, on hands and knees, sometimes with a flashlight, sometimes without a flashlight, sometimes at night when they are sleeping, one of them always 5:00 to 6:30 at night before the other kids get there -- that this man, this horribly sick man woke up one day and quit.(The defense attorney stresses that, unlike the prosecution's theory, the pedophile does not simply quit molesting children.) Miss Janesca told you when Miss Storts (the prosecutor) talked about polygraphs for sexual offenders, she told you repeatedly - - apparently it didn't take with Miss Storts -- that that's her treatment, that their belief is they are trying to determine whether they offender who they know will offend again without treatment, and there is a high percentage of chance he will continue to offend even with treatment -- that a person that sexually molests children doesn't quit on his own. It ain't alcohol, folks. It isn't somebody taking a cure who wakes up one day, or cigarettes -- there's some of you on there that smoke, there are others of us who smoked a long part of our life. Sexual molestation of children is not an addiction where the person just wakes up one day and says he's cured. But, that is what they would have you believe happened. That after 1993, Calvin Murphy was magically cured. Because not only did he not do it to his own children after then, but the evidence is that he didn't do it to any others. (Defense counsel underscores the importance of the evidence that there is no evidence of any sexual misconduct by the defendant after 1993 and how that is inconsistent with the profile of pedophiles.) It is a very important point. (Defense counsel refutes the prosecutor's poo-pooing the failure of evidence of the state's investigation to unearth any other evidence of sexual misconduct by the defendant in the youth groups with whom he worked.) When Miss Storts (the prosecutor) says to you, listen, the fact that he didn't do it to other people, Marching Thunder (This was an organization of young people in a marching and baton twirling group presided over by the defendant, who in addition to being a world-class basketball player was also a world-class baton twirler.) and everything, what does that have to do with anything? You recall that? Her saying that that doesn't prove anything? (Defense counsel asks the rhetorical question: If the existence of other instances of molestation was not relevant, why did the prosecutor make a public appeal on TV for other people to come forward with claims of molestation?) Well, if it didn't prove anything, you remember the evidence, what the evidence is that Mr. Long (the prosecutor) did? As soon as he announced these charges, the day that Calvin Murphy, on March 29, 2004, is announced in the most inflammatory type charge you can imagine - that he has been charged with six counts of molesting his children, Mr. Long appears on TV and asks everybody to come on down. Any of you out there in TV land that know of other similar offenses by Mr. Murphy, contact the Harris County District Attorney's Office, and it gave a phone number. March 29, 2004. So, if the fact that he didn't molest other children wasn't significant, why the heck did they run around on TV and try to find them?(Defense counsel apologizes to any jurors that may have been offended by his zealous efforts in defending his client, praises the judge and prosecutors, and also manages to subtly insert his personal voucher for the defendant.) And, then you have in March -- and let me tell you something. By the way, I want to apologize to you ahead of time. A lot of us in life may wear our feelings on our sleeve. I think you can tell he does. And, I think you can tell I do. And, this is an outstanding judge. These are excellent prosecutors. And I may have offended you at some time during this trial, or I may offend you in the time remaining. And, if I do, I apologize. And, don't blame Calvin Murphy for anything I do that you don't approve of. Wait until after the trial, and hammer me about that. But, this judge and these lawyers have different roles than we do. And sometimes there may be some disagreements. And, to the degree that I did anything that may be offensive to you, I apologize. But, the one thing I will not apologize for is believing deeply in this man (indicating the defendant). And, so, if I, as I talk to you, get a little loud, that's why I'm over here. If I got loud over there, I think I would really be intruding in your space. If I get a little loud here, I don't mean to. But, that would be because I'm over here just intruding on your ears. But, as I go through this, I hope you will not attribute anything I do that offends you to Mr. Murphy. It's not his fault. November of 2004, Sergeant Carter (the Texas Ranger) takes the stand and is specifically asked by me: "Sergeant Carter, do you remember and did you see Mr. Long (the prosecutor) on TV asking for extra charges or other people these things may have happened to? Yes sir. To this day as you sit there now, have you found any other child who contends that Calvin Murphy sexually assaulted them? No sir. " That to me -- (Note how defense counsel stops himself in mid-sentence from venturing a "slip of the tongue" personal opinion and changes the argument to an unobjectionable form, thus getting the benefit of the jurors knowing that in defense counsel's personal opinion this evidence was extremely powerful was. A slip of the tongue or a crafty way of venturing personal opinion.) I would suggest to you, rather, is extremely powerful evidence. And, don't let them (indicating the prosecutors) get by with saying "What does that have to do with the evidence?" They're the ones that put it on Live at Five (name of local evening news show). (Defense counsel begins to make a suggestion about how the jurors might proceed in assessing witness credibility in deliberation, but changes course slightly when he recognizes that before talking about credibility he he first needs to clearly face head-on the strongest part of the prosecution's case - Why would the five girls from three mothers make this up.) Now, if you want to know whether anybody has an axe to grind -- as we go along, here's the way I'd like to suggest to you, but, you know, y'all can do this however you want. Y'all are in charge. Once the judge hands you the copy of his instructions, you go back there, you have to follow what he gave you, but your procedure, how you go about things, how long you deliberate, how you do things is up to you. But, keep in mind this: If you are looking for a reason as to why these -- let me tell you what is the most frightening thing about this case. Five young women from three mothers, different mothers, contend this man sexually assaulted them. That fact and that fact alone is frightening. Why is it frightening? Because the obvious automatic question is, why would five girls make this up? And they are going to hammer on that fact that some of them didn't even like each other.(Defense counsel points out that he has no burden to prove what the complainant's motives were in bring these false charges but then he provides his suggestion as to the deep-seeded resentment they held against the defendant for perceived cavalier mistreatment of their mother and themselves by the defendant.) Cameo you know, didn't have anything to do with them sometimes and was gone. And, Lajoya was abused by the Davidson kids. Why would they make this up? And, you know what? That's their problem, not mine. Because, they don't have to show a motive for Calvin Murphy, and we don't have to show a motive or explanation as to why they did it. I can suggest to you that the evidence shows that the clear and common thread among these young women is tremendous lifelong growing resentment against Calvin for the way they perceived he treated their mothers, for the way they perceived their role in his life - in spite of the fact that all of the evidence is to the contrary. All of the evidence is to the total contrary that he actually treated these kids the way they appeared to have perceived him, and the way they have recited to you on the stand. But, whether they accurately perceived it or not is not the issue. They perceived it that way. And, I would suggest to you that with some of them you have the motive. The final straw is his refusal to turn over that money. I agree, it wasn't that much money. But, it is to some people. It is to some people. (Note the repetition.) It was to be split four ways. It is to some people, particularly if you have immediate needs. (Is this an artful way of making clear that counsel is arguing the evidence and not opinion?) But, it wasn't done, I would suggest to you from the evidence, to get the money. It was done as revenge. Because he wouldn't and they resented it. And from the time that the Davidson's children's mother died, in many ways their resentment toward Calvin Murphy was (Note the use of descriptive adjectives to depict the complainant's resentment.) unbeatable and unstoppable. (Facing a possible weakness in his case, defense counsel admits that he does not know why two of the daughters resent the defendant.) Why does Cameo resent her father? Why does Lajoya? I don't know. But, you know what's important to remember is? We don't have to satisfy you there, and you don't have to reach a conclusion about that. (Defense counsel hypothesizes what the jurors may say during deliberations in trying to determine the motives of the complainants but emphasizes that if the complainants can't be believed it doesn't make any difference if we can't be sure what it was that motivated them to fabricate the story against the defendant.) You can go back and say, "I don't know why these girls did it." One of you may say, "Well, they did it for this reason"; one of you may say, "They did it for that reason." Somebody may say, "Well, it doesn't make any sense." That's all fine. That's a great academic conversation. But, the basic fact is, if you look at them and their credibility and whether what they said makes sense, even if you don't conclude and have any firm conviction as to why they did it, you have to find him not guilty if you find their credibility wanting. Because it is solely their credibility the State has relied on. (Defense counsel uses the rhetorical device of claiming that the number of witnesses is not important but then points out that the defense brought forth numerous witnesses to testify to the good reputation of the defendant for truth and veracity under Rule 608 TRE which allows the credibility of any witness to be attacked or supported by proof in the e form of opinion or reputation for the trait of truthfulness or untruthfulness, provided that evidence of truthful character is only admissible after the character of the witness has been attacked by opinion or reputation or otherwise.) I did a count, and I may be wrong. I'm sure Mr. Long (the prosecutor) will correct me if I'm wrong. But, I think, off the top of my head, I think they put nine people on. We put on eighteen. Does the team with the most witnesses win? No. That's not the issue. But, what is clear is, they are relying solely on your assessment of the credibility of these young women (the five complainants) with nothing to corroborate this or that. When they say corroborate this or that , you ask: Did they bring anyone in her to give you the same kind of reputation for truthfulness of these young women that I asked of other witnesses? Answer: No. Not one single person has taken that stand and said in their opinion either of these young women was a truth-teller. Not one. And, the law allows them to have done that. They could have brought somebody to say --MR. LONG: Objection, Your Honor. That's outside the record. (The prosecutor is focused on the failure to call witnesses aspect of the defense argument. Was there a better objection, i.e., that Rule 608 TRE does not allow the proponent of a witness to produce favorable testimony re the character of the witness for telling the truth until the other side attacks the character of the witness by negative opinion or reputation evidence or otherwise? If the defense had subjected the complainants to strong cross re their truthfulness as I suspect they did, would the prosecutors have had a right to produce positive character witnesses re the complainants character for truthfulness? If so the defense argument is valid, and the prosecutors have set themselves up for this defense argument. If not, then the prosecutor should have objected, "Objection, Your Honor. That is an incorrect statement of the law under the provisions of Rule 608 TRE. As the court well knows, we are not permitted to call good character witnesses on truth or veracity until the defense has presented negative character evidence. ")THE COURT: That will be overruled. You may proceed. DEFENSE COUNSEL:(Having the prosecutor's objection overruled, the defense continues to bore into the absence of witnesses, character and fact, issue, telling the jurors that the law allows them to presume from the failure to call witnesses issue that the evidence would not be favorable for the prosecution. This instruction on the law from the defense attorney might have been in error as it would apply under Rule 608 TRE and if it was a correct statement of the law, one might conceivably object to defense counsel instructing the jurors what the law, i.e., "Objection, Your Honor, we object to defense counsel instructing the jurors on the law.") You can assume for either side that doesn't produce witnesses that might have relevant evidence about something, their decision not to present them, you can presume that evidence might not have been helpful. For instance, where's Jamie? Why not Jamie on the stand? Why not Cameo's boyfriend on the stand? Why not any people from any of these facilities that Itiah supposedly told about on the stand. Why not Michael Martin, Itiah's former husband on the stand? Why not anybody other than the young women with an axe to grind to support them? You have Ronnie Olsen that we'll get to who reports Lojoya making an outcry. And, we'll go through that in a minute. But, we'll go through that in a minute. But, as we go through this real quickly, I'll ask you to always ask where, where are the people to support any part of these young women's stories?(Defense counsel poses a couple of rhetorical question that he immediately answers with common sense reasons.) And, you know what is one of the most tragic things in the world? That they have prosecuted this case on the backs of two dead women. See, the Davidson girls, when they giveth with one hand, they taketh away with the other. They talk in terms of what a person Phyllis Davidson was, but they would have you believe, and the State is now arguing, that this woman sacrificed her children over and over and over to a child molester. My mother may have been a wonderful woman, but I am free to stand here now that she is deceased and say every bad thing about her I want? Yes. And, if I did, would you be able to determine whether it was true? No, because you don't know her. Phyllis Davidson is not allowed to rest in peace in this case because she was constantly being trashed by her daughters and her daughter's agents saying that she knowingly and willingly allowed, perpetuated and continued child abuse for a large number of years.(Defense counsel attacks the prosecution for misogyny (distrusting women) in claiming that now deceased mothers of some of the complainants had knowledge of the alleged molestation.) Actually, Ebony, if you are willing to listen to Ebony's testimony and are willing to take anything she says as true, in fact, Ebony testified from the stand that Phyllis Davidson knew from 1986 on that Calvin Murphy was molesting her children and she did nothing. For the next ten years they would have you believe that she allowed this to go on and did not do anything about it. And, Vernetta Thompson, is she able to defend herself? Is she able to tell you she did not believe Lajoya? No, she's not. And, why isn't she? Because she's deceased. And, Lajoya and her agents are trashing her. And, I'm going to tell you, this may not be too offensive-- no offense to nine of you as men, but this prosecution is the most patronizing attitude toward women. Their basic position is -- (indicating the defendant) he's 5' 10", he's 56 years old, supposedly according to the prosecution's theory, this guy was so intimidating and so powerful and so persuasive that he was able to get all of these women to do whatever he wanted in spite of their love for their children, in spite of their own self-esteem, in spite of their own accomplishments. Whatever he wanted. And, you know what the irony of it is? Of the five girls, the only allegation of a mother not knowing is the one living mother who can answer, Trish Day. Cameo could say, "I didn't tell her. She didn't know anything about it." But not for the two that are deceased and not here to protect and defend their own conduct and memory. We'll just trash the heck out of them and that's okay February 13th, the call comes in. Anybody noticed what the most suspicious thing is originally? What happens is not only does she say he sexually assaulted my three grandchildren, but by the way, here's the birth certificate of a couple of others. What is she doing with he birth certificates unless this whole thing was planned and orchestrated? Why does she have birth certificates of grandchildren that are not hers? Why? Because they planned this. They all got together, and it was to be given to the State.Now, they conducted the video interviews. Sergeant Carter described it. Itiah was emotionless , disconnected (inaudible). Names that she gave them to talk to: Carla Harwell, Darlene Gallo, San Jose Brown, James Wells, Servando, Lajoya Thomas. The evidence is that we brought in Carla Harwell. They never tried to talk to her. Darlene Gallo, still to this day, they've never talked to. James Wells, where is he? That's Itiah's husband. Servando is somebody she had a child with. And, Lajoya? They found Lajoya.(Defense counsel points out the the testimony of Ebony differs from the stipulated testimony of witness Maylin Satterfield. Defense counsel explains that this is why he called Ebony a flat-out liar.) Now, Ebony interviewed. Crystal interviewed. February 25th spoke to -- We're going to move real quickly now as I go because of time. And, I'm going to start talking pretty fast, as fast as I can get by with with the court reporter. Here's the thing I want y'all to remember: You look at that stipulation we entered into and Ebony flat-out lied to you under oath. Remember she said Maylin Satterfield was a friend of hers, and that they were childhood friends, lived over in River Oaks, and they talked when they were young, and at one time she told her what a dirty man, or dirty old man that Calvin Murphy was? Maylin Satterfield as you recall the testimony, was saying nice things about Ebony's father Calvin, and when she would say these nice things about Calvin, Ebony said "Listen, don't believe it. He's a dirty old man."MR. LONG: I'm going to object. Your Honor. That's not what's in the stipulation.THE COURT: The stipulation is there for the jury. Proceed.DEFENSE COUNSEL: I'm not confining the testimony of the stipulation. Her testimony was -- well, let me -- the key thing I want to get out of the stipulation is that what was happening -- You ever give a talk and you can't find any of the notes you thought you were going to use? I'm going to see if somebody can help me out with a copy of it while I keep on talking. Here's what I want to tell you about the stipulation, why I said Ebony flat-out lied. Do you remember what Ebony said? Ebony said she told Maylin Satterfield that her father sexually molested her. She said -- I asked her repeatedly, "Are yo sure that's what you told her, that he sexually molested you?" She said, "Yes." Now you know Maylin Satterfield now lives in Alabama, that both sides entered into a stipulation on her testimony. Maylin Satterfield said Ebony told her he was a dirty man or dirty old man, but she did not say, she does not recall her saying her father sexually molested her. And she does believe that if she had told her he sexually molested her that she would remember. That's why that part of the stipulation is in. Ebony just lied about that part.(Defense counsel points out that the Texas Ranger in charge of the investigation made up his mind early on in the investigation that the defendant committed the offenses, and, from that juncture on, the effort changed from an investigation to a single minded effort to gather information that would convict the defendant.) Let's go real quickly. Sergeant Carter contacted Lajoya by phone. Recorded interview with Satterfield. February 26th. Contacted Cameo and interviewed Cameo at the D.A.'s office. February 27th. Do you recall what Sergeant Carter finally told me then? What he says is, he made up his mind. Sergeant Carter, that Calvin Murphy committed these offenses after interviewing Cameo. So the point is, from February 27th on, he believed that Calvin Murphy did it. And, everything then stops being an investigation to out what happened and moved to proving it did happen. Remember? Hey fly down -- never heard of one where the DPS jet is used for another state to go down and get interviews with complainants before charges are filed. He and the prosecutor fly down to Alabama. They get interviews down there. They get to meet everybody. They don't record them anymore. They don't videotape them anymore. We don't know what they said to them down there. But, they did. And, if continues like that. And, then they wouldn't talk to some of the people we brought them, and that's it. Never talked to Laura Winston. What is the big deal there? The reason I'm saying that that was important is once you have nailed down what the allegations are, then you should be doing what we've been doing here for a month, and that's testing the girls' credibility. The things they are saying. Are there other people I can go to? What do the Marching Thunder people say? If they're telling me that they no longer wanted contact with their father or they were very distant or they care much about him after it's over, then what do other people say? Do other people vouch for that? Do other people say the same thing? They never went to them. They would have found out about the conversation with Lajoya if they had.All right. Let's go, if I can, to number 4, please Bridget (indicating to his assistant to display a PowerPoint slide of a quote of Lajoya's answer to a question of cross-examination.) "Sometimes makes things up" is the quote we had. We talked about "lied under oath." This is all from her testimony and things about her. (Defense counsel brands Lajoya as a perjurer.) She lied under oath in a judicial proceeding two years ago. (Defense counsel turns the inquiry to Crystal, one of the other complainants, and how she allowed herself to be arrested as a topless dancer under her sister Ebony's name and proceeded to pose in court as Ebony, giving Ebony a criminal record and in the process lying under oath in that criminal proceeding.) How do you decide if somebody is telling you the truth? Do you remember how Crystal initially handled on direct this issue of having been arrested as a topless dancer, charged and being charged as "Ebony"? She made it sound like she was in -- remember -- she was in a car and they wouldn't let her go get her ID. The ID they got turned out to be Ebony's ID. She wasn't really telling anybody she was Ebony. She just did it. Well, let me tell you, when you look at what she did, when you look at that exhibit that's in evidence, it will show that what this now truthteller supposedly about molestation did is, she gave her own sister a criminal record. Never did anything about changing it. She told them she was Ebony. She swore before a county court judge, sitting similarly to this judge, that she was Ebony. She had a lawyer. Her lawyer allowed he to enter a plea. She was admonished by the judge."Are you Ebony Murphy? Yes, Your Honor." She walked up to a clerk. She admits that she swears that it is true when she says she's Ebony Murphy. She went through his whole thing, and, as you see, got a sentence of four days in jail for an offense that she affirmatively, aggressively tried to convince others was done by her sister Ebony. And, we behind a person who testifies like that are going to believe her and her allegations about her father? And then she lied about the continuing relationship with her father after the abuse allegedly ended.(Defense counsel explains his purpose in calling members of the defendant's marching band as witnesses, i.e., to show, for comparative purposes, how the complainants acted around their father, the defendant, during the period of supposed abuse and during periods when by all their accounts there was no abuse. ) Here's what I am talking about there. There seemed to be some misunderstanding - maybe from them or others -- the reason for that series of Marching Thunder witnesses (a group of young people who were participants in the defendant's marching and baton twirling band) was not to say they would necessarily know what was going on behind closed doors. No one does. No one knows what happens behind closed doors. I totally agree with that. And, because somebody is an icon in the community does not mean he didn't commit sexual assault on his children. I can understand that. And, there are some very, very well postured public figures who have a lot of things in their private lives that wouldn't stand up to examination. I recognize that . That wasn't the purpose of this. It was to show how these children acted both around Calvin Murphy and with Calvin Murphy during the periods of the supposed abuse, and then how they acted after they all, by their testimony, agree was not a period of abuse. (Defense counsel discusses the delayed outcry and while conceding that the charges could be brought within the period of limitations points out that fairness, equity and practicality require that the time interval between the alleged offenses and the outcry be considered with reference to the impossible burden it puts on the defendant to refute the charges.)I would suggest to you when you are trying to decide, here's the reasoning process and the problem that we've got to deal with: If you are going to decide whether somebody sexually abused someone, and if these different children are telling the truth, your reasoning process is a lot different in the kind of case you have now. And, I would suggest to you the level of scrutiny you should bring is a lot different now than it would be if we were trying these in 1986, '87, and 1990 and so on. It is absolutely true that the State is authorized and entitled to bring these charges up to, as the Judge said, ten years from the date the complaining witness had her eighteenth birthday. That's where the statute of limitations runs. It is legal to be doing what we are doing. If it's legal, and charged can still be brought on behalf of someone who claims when they were six years old they were sexually abused, but waits until they are 27 and 364 days old to bring the charge, that can be done. Because the law recognizes what some of you have already talked about during jury selection. There is such a thing as suppressed memory. There is such a thing as a child being a captive and under the influence of the abuser. There is such a thing as isolation and children being afraid to come forward. We will never argue that those factors do not exist. But, if the abused person does choose, for whatever reason, to bring those allegations after they are an adult, and after in many cases from '82, twenty-two years back to fourteen years back, or eleven years back, these allegations - not those in the indictment, but as they talk about the conduct, are from twenty-two to eleven years old -- if that is the case, because of what I talked to you about earlier and the almost impossible burden that puts on a defendant to satisfy anybody one way or the other that it didn't happen, the system understandably can be expected, and you through that system, you the system, can understandably expect there is going to be a heightened scrutiny as to the believability of the person making the charge. Not legally required, but it is practically, equitably, and fairly required. (Defense counsel points out that the complaining witnesses are adults and not children and that as adults they have credibility issues different from child witnesses.) Because you see, these are not allegations by children, are they? These are allegations by adults who as adults bring to the table all of their life experiences, all of their biases, all of their need to seek revenge, all of their grievances. They bring those as full-blown adults to this proceeding. They are not a six year old up there telling you what happened, but a twenty-something year old telling you what they say happened when they were six. Those are two entirely different worlds.(Defense counsel aligns the defense with the view that promotes children to come forward and report sexual abuse, but raises the issue of the unfairness implicit in an outcry that is delayed for ten to fourteen years later and the need to examine the claim with the fine-tooth comb of skepticism.) I hope the day never comes where we do not protect a child's right and need to come forward with these allegations. It is deadly important that children feel free to come and tell the world, whether it is their teachers or others of legitimate molestation. And, the system should do everything it can to protect the right and need for them to come forward. But, not at the price of allowing it to be made ten, fifteen, or fourteen years later, when that adult has potentially a tremendous number of grievances to air, without looking at it with a microscope in every way. (Defense counsel points out that Crystal has lied.) And, so how do you do that? Well, what did they say that makes sense, and what did yo hear about them? Crystal claims she overheard a conversation between her mother and Itiah at Stafford Meadows concerning Itiah's claim that Calvin had molested her. But, Itiah testified she never had such a conversation. Remember? I asked Itiah when she comes on as the fourth one to testify: "Did you and your mother ever talk back at Stafford Meadows about the supposed abuse? No." So, now we've got Itiah saying that Crystal is lying. Says that from 1986 on, her mother, Phyllis Davidson, knew about Calvin's sexually molesting her daughters and yet did nothing.(Defense counsel now returns to deal with the complainant Lajoya.) Let's go to number five. (Defense counsel calls for the next PowerPoint slide.) Lajoya. outcried in 1994. Recanted in 1995. Do you remember the sequence of how all this happens? (Another of many, many rhetorical questions by defense counsel.) We'll get to it in a moment in the investigation. Repeatedly insisted on a recantation from 1995 to 2004. She said it over and over to anybody who would ask, until on the 26th of March this year, she changes her mind and calls Sergeant Carter and says, "It happened. Okay. Okay. It happened." And she goes down and gives them what? A statement that no notes were made about, no recording was made about, and we have not idea what she said so that we could later test whether what she tells them on that Friday the 26th before she goes back to Connecticut, how consistent and it varies and whatever from what she had been telling since 1995. She recanted it with the Laurie Winston conversation. Remember what this is is that in March after Lajoya has come back down here, she is out there at Calvin's house, CPS has been asked Sergeant Carter to come check out the other kids. And, when they asked her to come out and check the other kids, that's the first time Laurie Winston, who has a four year old in the house, says, "I didn't know anything about Lajoya making these allegations in '95 that the CPS worker tells her about. Laurie Winston goes outside to wander around, thinking what do I do, and Lajoya, two weeks before she then recants her recantation, goes outside and says, "It's okay. That didn't happen. I lied back in 1995. I lied because I didn't want to come back down here and live with the Davidson children. It didn't happen. More importantly, she said, "Do you think that if Calvin had really molested children, I would have come back down from Connecticut to live with him and brought my son?" In that same conversation, San Jose Brown has a separate conversation with her in which she tells San Jose Brown the same thing the day the CPS people were out there. And then, CPS takes the children down and interviews them and comes back and says we that the family shows no evidence that anything improper has been done with these kids. But out of an abundance of caution until this, the trial and everything is over, they can return visiting Calvin Murphy, but the have to be supervised. The mother has to be there. But, we have no evidence that anything improper has happened with any of these younger children that are there. (Defense counsel recounts the "lies" of Lajoya. Note that defense counsel makes no bones about calling them lies and not errors or mistakes. He brands Lajoya as a liar, a risky tactic but seemingly appropriate in light of the defensive theory and the evidence produced by the defense.) She then comes down to our office. And, you heard the testimony in which she readily admitted she lied to us. She lied to Jim Yarbrough (the defense investigator). She lied to me. She lied to all and said at that time, "It didn't happen." She told us that. She told Jim Yarborough that. She went down and we made her available to them (indicating the prosecutors). They talk to her. She tells them that. The difference is, they don't believe her. But, even then she is still contending it didn't happen. So, basically what happens is Lajoya Thomas makes the allegation in '94, recants it in '95, stays with the recantation all they way up to 2004, repeatedly reemphasizes the recantation, and then all of the sudden, changes her mind again. And what was her answer to why she did it? Her answer to me repeatedly as to why she had made this up was, "I did what I had to do." (Note: One might wonder if the evidence showed that Lajoya lied to the defense counsel; if Lajoya had admitted to this on cross, then it would be in evidence, and defense counsel's argument would not be subject to objection that " Counsel is testifying." In fact, Mr. Hardin had gotten Lajoya to admit on cross-examination that she sometimes made things up and that there was no way for the listener to tell when she was doing so and that she did what she had to do. He now reminds the jury of those three discrete admissions by Lajoya.) So, you not only have a young woman at the front end saying, "I make things up. I know you can't tell when I do." You not only have a young woman on the back end saying, "I'm a very good actress," but you have a young woman in the middle who says repeatedly, no matter what she's challenged with, "I did what I had to do." She lied about the continuing nature of her relationship with her father after the abuse allegedly ended. That is again Marching Thunder who described these kids all as tremendously affectionate with Calvin. Now, look, (a command) as you're trying to decide whether these kids are telling the truth or not, don't you think (Here's another rhetorical question from defense counsel, this one asking whether it makes sense that the complainants, as adults, would seek further contact with the defendant if he had in fact abused them.) it's relevant that what will happen sometimes is a child who has been abused and is no longer under control of the abuser, doesn't have to be around them, do you really think they would be able to stomach the close, the intimate contact with the abuser that they, themselves, initiated according to at least six or seven witnesses. hat both during the time the abuse is supposedly going on, after the abuse is over, that these young women were playing with Calvin, grabbing on his legs, playing basketball with him after Marching Thunder practice, jumping on his back, hugging him at the house with all these different games. This was offered solely for this suggestion to you: Does that mean they weren't abused? No. But, is it inconsistent with having been abused by this guy that you, a child, would want to constantly, physically have more to do with him. I suggest to you it's tremendously inconsistent.She contends she told her mother about the abuse and that her mother continually sent her back to Calvin to be molested. You've got to believe that both of these women would be willing to do that. (Defense counsel continues to deal with the witness Lajoya.) Now, I want to, if we can, to go to number six (reference to assistant for a new PowerPoint slide). Does it count if the speaker needs to go to the restroom? A JUROR: I show we do here also. THE COURT: That's good. Let's take about a five minute break. Ladies and gentlemen, during this time, please don't say a word about this case during this very short break. We'll bring you back in five minutes. Thank you. THE COURT: Is the State ready? MR. LONG: Yes, sir. THE COURT: Defense? Let's bring out the jury, please. Rusty, (Would it be helpful in the eyes and ears of the jurors if the Judge had called Mr. Hardin by his first name, Rusty? Yes. But notice that when the jury entered "Rusty" became Mr. Hardin. Judge McSpadden played no favorites.) you have twenty minutes. I'll still give you a ten minute warning. (Jury In) THE COURT: We will continue with the argument. Mr. Hardin, you may proceed. DEFENSE COUNSEL: (Defense counsel deals with a prior allegation made by Lajoya in Norwalk, CT, in 1994 against the defendant.) Thank you, Your Honor. Y'all recall the State brought you Rondi Olson. This is going to be about Lajoya, where Rondi Olson said she was informed of Lajoya's allegations in '94. Her testimony was she reported it to the Norwalk Police and claims she was never contacted after she reported the allegations to the Norwalk Police Department. And she (Olson) refused to talk to us during our investigation. And, she was stunned because there was no investigation. Now, that was the testimony elicited by the State basically when they put on Rondi Olson.They did not choose to talk to Lisa Cotto. Lisa Cotto, who wouldn't talk to us either before she got here (to Houston), back up in Connecticut, but had been interviewed extensively by Mr. Long (the prosecutor). Lisa Cotto said the following: She opened a formal investigation in January, 1994. She personally interviewed Lajoya two times and took a written statement from Lajoya in February, 1994. Lajoya never conceded she was interviewed two times. She said she was just talked to one time and gave a statement and that was it. Contacted Rondi Olson several times and took a written statement from Rondi Olson in March, 1994.Look, here is the problem you have to watch out for. Miss Olson is not going to come up here to deliberately lie. But, she had talked herself into a position, because she is a child's advocate, and she believes in children being supported. And, yet we know now, from Lisa Cotto, from her own knowledge and her testimony, that contrary to what Rondi Olson eight, nine years late was willing to testify under oath about, it wasn't right. The uncharitable view would be that it's a lie. I don't believe Miss Olson intentionally lied. (Here defense counsel seems to be expressing his opinion of the credibility of a witness, but it would male little sense for the prosecutor to object since the defender's opinion is that the prosecution's witness did not lie.) I think she persuaded herself, just like them, on a point of view and everything else flowed from it. Because we know that we contacted her several times and took a written statement from her. In March of '94 that wasn't what Rondi Olson said. In March '94, ran a search warrant on the Holiday Inn where she claimed the abuse occurred, and Calvin Murphy was never there. You giveth with one hand and taketh away from the other. The prosecutor says Calvin Murphy was a god in Norwalk, a small town, and talks about how he controlled everything. Well, you can't say that and then say that clerk at the only Holiday Inn where there are only two hotels at the time in Norwalk wouldn't know Calvin Murphy. But, they discovered, and she satisfied herself Calvin Murphy was never there, presented a case to the prosecutor, and the charges were refused in '94. They had you believe when they rested their case that this investigation in Norwalk just fell through the cracks and nothing happened. In reality, they found - they investigated and decided she wasn't telling the truth. And, they also said in '94 that they couldn't even locate her anymore, that neither she nor anyone returned their calls. And, the prosecutors refused the case; prosecutors just like these two (indicating the two prosecutors), rejected charges in '94.(Defense counsel continues to stress that Lajoya recanted her '94 accusation of the defendant in '95 and told defense counsel face-to-face she made up the allegation.) Then, they reopened the investigation in 1995 when contacted by the Connecticut Children's Services, and what that was about is, her mother was dying. He mother did die. Bonita, the woman who's now been trashed as putting up with child abuse and sending her child back into it. Bonita dies in 1995 in December, as a matter of fact, just a matter of a few weeks before Phyllis Davidson dies in an automobile wreck. And Bonita knew that she was dying of AIDS. And, rather than have her daughter stay with her own family there, she wanted her to go back with Calvin. Does it stand to reason Bonita would want to send Lajoya back if she believed there was sexual abuse. Went to Lajoya's home in '95 says Lisa Cotto and met with Lajoya and her mother. Lajoya told Detective Cotto that she had made the story up so she wouldn't have to return to Houston. Look, bingo. You can't, please, rely on anything Lajoya says. What did she swear repeatedly on the stand? That she was only contacted by phone and told nothing was going to happen. You remember that? She (Lajoya) swore to that to me repeatedly. And, then when Lisa Cotto takes the stand, she says, "No, I went and met with her and her mother." And, Lajoya told me face-to-face that she had made it up. Just as she told Laurie Winston. Just as she told San Jose Brown nine years later.The next one, which could make it number seven please. (Defense counsel calls for the next PowerPoint slide) (Defense counsel proceeds to use the slide to summarily contrast the testimony of Lajoya and Detective Cotto.) Lajoya Thomas versus Lisa Cotto. Lajoya Thomas stated she outcried in '94 to avoid returning to Houston because of the way Phyllis Davidson's children treated her. She stated that she gave a written statement to police, but only heard back one time over the phone. And, then you've got the same information from Lisa Cotto that we just went over. All right. Let's go if we can, then, Bridget, to number 8, Ebony Murphy. (Defense counsel calls for the next slide that references what the defense views as flaws in the testimony of complainant Ebony.) Now, she (Ebony) was touted by them (indicating the prosecutors) as the youngest (of the complainants). Sergeant Carter talked about her as the most immature during his interviews and everything. If that young woman, Ebony Murphy, who's twenty years old was immature and not in control and not self-confident and not a strong personality, I've got some real estate I want to sell you in New York. The fact is that in many ways this young woman was the strongest personality that appeared before you, and this is the young woman that in January, 2003, began the search for the holy grail of getting that money.Insisted that she never had contact with Calvin on the cruises during the daytime, even when confronted with pictures showing her playing basketball with Calvin on the deck of the ship during the daytime. (Defense counsel suggests an approach to judging credibility of witnesses.) Look, one of the ways I suggest to you in our common experience -- y'all are good or better equipped to do this than any of us. You are the judges of the credibility. So, when you go to decide credibility, what is one way I'd like to suggest you to do that? Does the witness who's trying to persuade you of a point of view lie unnecessarily? Do they lie to you about incidental things that aren't really necessary one way or the other to the point they're making? Because, if they do, that should undermine their believability in other areas. What's happening here? (Defense counsel poses his umpteenth rhetorical question as a preface to his photographic demonstration that Ebony lied about insignificant things.) These girls, by the time they are here, want you to believe that Calvin would have these cruises, and rather than it being an opportunity for them to experience something they wouldn't ordinarily experience, that he wouldn't have anything to do with them. He wouldn't be around them. And, so she (Ebony) gets up there, and she just keeps hammering herself into a corner. They never saw him during the daytime. He showed up at dinner. And, then the pictures show simply the truth. Oh yeah, when she's shown shooting baskets, you remember what she did? One of them, she's got Calvin in a headlock, laughing, and playing basketball during a time of day that he was supposedly having no contact with them. When they lie about the insignificant facts, it should make you look deep as to whether they're lying about significant things, which is whether he sexually molested them. Contends that she told her mother about the abuse, and yet her mother continually sent her back to Calvin to be molested. You remember Gary Moncur? You know, Scottish guy, British guy comes in, testifies. What was he up here for? He was up here to show you buy us that her conduct in 1995 in the tour of Scotland, in the visit to Scotland is inconsistent with a mother that doesn't love and care and be concerned with her children back home with a known child molester (Defense counsel utilizes a form of irony, i.e., the provocatively ironic saying of the opposite of what is meant.) It's 1995, any yet he says the first thing Phyllis Davidson does each day is get up and call those kids. She was happy, she was upbeat. Calvin's taking them to buy school clothes. They're getting ready for school. They are in his control. They are in his possession. And, rather than be anxious or worried about what he might be doing to them, she is happy and delighted and joyous about what they are doing.And, when she gets back, they have Christmases, they have Thanksgiving. These kids, by the time they got to the stand, watch out again as I say, for the child versus the adult making the allegation. The child is not going to get on here in front of you and make up, it he's sophisticated enough to invent stuff a lot of times that will stand up under cross. And, so the child is not going to be telling you, I didn't have any more feelings for him. I didn't want to be around him anymore. The child might say, he's still my father, I still love him, I still want to be around him. The adult decides that might not help my story to say I love being around him, that I wanted to be around him, that we played with him, that we grabbed him, that we jumped on his back, that we played ball with him. That might not help my story. So what happens? Every swinging one of them take the stand and changes the nature of their relationship with him on all occasions. We don't ever go out. We never have any family over. We were never close to him. I never wanted to go back over there said Cameo. It wasn't my idea; it was my mother's.(Defense counsel points out how the proof showed that complainant Cameo lied about an insignificant thing and thereby undermined her credibility on the significant things.) And, by the way, do you recall Trish Day's testimony in a couple of areas? She showed he own daughter was lying about three ways. Trish Day later takes the stand and says Calvin Jr. used to come over to get her all the time, take her over to her father's. Cameo says Calvin Jr. didn't do that. Trish Day identified the picture. You remember that? Trish Day says Cameo gave that picture to her father. That's because Trish Day didn't know that Cameo had just sworn under oath that she didn't give that picture in Jet magazine to her father. She had nothing to do with that. She didn't know how he got it. If they lie about the insignificant things, how can you believe them about a mind-altering, ruining allegation? I suggest you can't.And, by the way, while I'm mentioning Jet, Jet magazine is not before you suggesting there was anything wrong with it. Their objections and all continually indicate they misunderstood what I was saying. I'm not saying that there is anything wrong with the Jet picture. I'm saying that it is inconsistent for a child who has been abused at the age of sixteen or seventeen to give that picture to the supposed abuser. That is not something that you just give to him. That's all I'm saying. And, do they lie about the insignificant things, and therefore undermine the significant things? You betcha!How? Cameo realized it would undermine things and wouldn't be very consistent for her to have given that picture to the guy who molested her. So, Cameo, the adult making the allegation, not the child, the adult says, "I didn't give it to him." I don't know how he got it. And, you know, all these other people come in and say, "She gave it to him. It stood on his dresser, and he was proud of it and he put it on the air that night." The adult making the allegation, not the child. Cameo says, "I didn't have much of a relationship with my father after that was over. When the abuse stopped at nine or ten, which would be 1990, 1991, when that abuse stopped, I didn't have a relationship with my father. I went over there at my mother's insistence. It certainly wasn't my idea ever. I didn't go over there a lot with Calvin Murphy. I certainly didn't try to talk my mother into it." Why? Because the adult making the allegation realizes that what was truly going on is not consistent with a child who has been abused. And yet her mother doesn't know what she's saying in here because she never told her mother about the abuse. So, her mother, without even thinking anything about it, testifies that Calvin used to take her over there a lot, she used to go over there all the time, she liked to go over there, she showed him the picture. And, the adult making the allegation realizes it wouldn't be good for what she's saying for the jury to hear that at least seven or eight or nine times during those years after the abuse, she was proudly dancing on the floor of the Summit at Rockets games at the instigation of her father and being introduced over the air as his daughter. THE COURT: You have ten minutes.DEFENSE COUNSEL: Thank you, Judge. Those are important things to remember. If they lie about the little things, how can you believe them about the big things?(Defense counsel suggests that the prosecutors gullibly swallowed the stories propounded by the adult complainants.) Now, as you go on, she lied about what she told Maylin Satterfield. We know that. We've talked about that. Lied about San Jose's relationship with Calvin. See, there was a very, very instructive timeline that happened here. Do you recall the prosecutor, and I can't remember which one it was -- I think it was him - I think it was him -but, we want to - y'all can remember where he says about Mrs. Hampton. Remember? Mrs. Hampton having sex with Calvin Murphy? And, the witness goes, not that I'm aware of. Well, did he tell you about the list that her mother left? No. Now, what does that tell you happened? They have so bought into the theory of what these young women as grownups are saying happened to them as a child that they just willy-nilly are willing to assume that he was having sex with any and everybody. The girls told him. So the girls say, San Jose was having sex. Did anybody ever suggest that? No. You've had a chance to observe. I would suggest to you she's very believable saying that was not the relationship. (Defense counsel chastises the prosecutors for besmirching the reputation of a middle age defense witness by suggesting she was having sex with the defendant.) Even more outrageous is a thirty-something year married woman, Mrs. Hampton, who was here and gets to hear in a public courtroom in front of the world and whatever witnesses and jurors are here, there is suggestion by the State that she, because she worked in Marching Thunder, she the mother of two daughters who testified, Janesca and Tony, that she was also having sex with him. They have been here as an unapologetic sponsor of whatever outrageous thing these five young women were saying. And as a result, reputations and attitudes have been adversely and unfairly affected. And, I ask you to keep that in mind. (Defense counsel recounts the lies of the complainants when they were younger about the defendant not supplying them with food.) All right. Lied about the lack of food in the house after Phyllis dies. Could you see what was happening from the questions? These kids wanted to make sure he looked so bad about the way he's treating them, they were trying to make their grandmother think there wasn't any food there. So, San Jose would go and buy food. She'd stock the house with food. They wouldn't tell their grandmother. Why do you think? How about money? I suggest to get more money for food from the grandmother. Grandmother, we don't have any food. So, grandmother's going to come over, so they go running around hiding the food. Grandmother leaves, and they put the food back out. Just not in the same position. That is a pretty, pretty screwed-up approach to life, folks. And, is certainly too screwed up to support a conviction for sexual molestation. (Defense counsel recounts another lie by Ebony about being kicked out of the defendant's house.) Lied about getting kicked out of Calvin's house. There are two different witnesses, San Jose and Tarina, who say that never happened. Ebony left on her own at the age of fifteen. Who's more believable about it? Ebony or them? Why would he want to kick a fifteen year old out? (Defense counsel points out the defendant continued to pay Ebony child support long after the law required it.) And from then on, to show what his attitude was, shortly after that, a court has a hearing, the grandparents file a hearing, and when she leaves in 2000, he agrees to court-ordered child support up until age eighteen. That was supposed to stop in 2002. April of 2002. And, did it? No. He kept paying Ebony $500 a month child support two years after the law required him to, up until she was aged twenty, and only stopped it after she made up all these allegations. (Defense counsel points out that Ebony lied when she said she expected the child support payments to continue after she filed sexual assault charges against the defendant.) And, they had the temerity to ask Ebony did she suspect that the child support was going to continue? Well, "Of course," she said. Now, listen, (Note the command word "listen.") do we really think that when Ebony decided to make these allegations that would send him to the penitentiary for life if a jury thought that was appropriate (Notice that defense counsel mentions the maximum punishment facing the defendant in this argument about the child support lie about a collateral matter.), that somehow he was going to continue to pay her child support even more than the two years after the law asked him to, or told him to? (Defense counsel reiterates his theme.) You lie about about the little things, you can't be believed about the big ones.Page 2. (Defense counsel points out that the defense brought a witness from CPS who testified that Crystal when questioned at age sixteen denied any abuse by the defendant.) I feel like Paul Harvey, but I've got move a lot quicker. Says she lied to CPS in a995. All of these girls -- (Another command.) remember this, this is so important -- we brought Miss Huebotter to you. They never even bothered to talk to her. Miss Huebotter was with Child Protective Services for three years and now has been a school teacher for eight years. Knows kids, folks. Like teachers know kids. Interviews these children in 1995 because of the allegations up in Connecticut. Interviews Ebony, Jamie, and Crystal. Crystal was fifteen years old. Do you remember what she said. 1995, sixteen, close to sixteen, depending upon what time of year it was. She interviews Crystal and Crystal describing it says "Ooh, no, no," like it was too gross to even consider, "It's crazy. No my father hasn't sexually abused me. No." Crystal now says, the adult relaying the child's information, says, "Well it didn't sound to me like she really wanted to know the truth. Like she didn't believe me." We just improve all these things.Jamie, she (Huebotter, the witness from CPS) talks to her. She denies any abuse. And, then she talks to Ebony. Ebony, she's a little more careful with because Ebony is only eleven at that time. Each of these children were talked to. Almost as long as they were later talked to by law enforcement in 2004. And, they very persuasively convince her that they have not been sexually abused at all. And, remember this: By everybody's testimony, the CPS interview in Fort Bend County with Miss Huebotter is taking place at least two years from the time anybody even contends they were abused. The last date is '93. When you match up the dates, and you match up when the kids say it happened, Itiah says with her it started at five or six. She was born in '76, so that's '82 forward. She says it lasted until she was sixteen. Well, guess what? She says it lasted until '92. That's Itiah.(Defense counsel stresses the implausibility of the claim that defendant was abusing all five of the complainants in 1991.) '91 is a big year. Do you realize, if y'all look at it, you look at the years of abuse, according to all five of them they were being abused in 1990. When and where is he doing all of this? He's supposed to be abusing all of them in the same year. When you look at where they say it began and when they say it ended, each one of them, that is absolutely incredible! (Note the polite command.) You just cannot, please, believe that. Lied about trashing her (apparently Ebony's) room and tearing down photos when moved out. Both Tarina and San Jose say that's true. (Another rhetorical question?) And, doesn't it make sense? I mean, she's mad. And, she's described by Tarina as just jumping up and down on the bed repeatedly until she breaks it, rips all the posters of his basketball career, pictures of him off as she leaves. She lied about that. She said she didn't do it.(Defense counsel recounts the testimony of Miss Perrin concerning the threats Ebony made to her about hating her father, the defendant, and planning to get even with him.) And, then she lied about the conversation with Jeanie Perrin at the T-Mobile store. She admitted the conversation, remember? She says the conversation was with a girl named Tiffany who was the oldest daughter of Jean Perrin. And, she says she didn't tell Miss Perrin that Calvin was going to pay. She didn't tell Miss Perrin that she and her sisters had been talking about getting even with Calvin. She didn't tell Miss Perrin that Cameo was one of the sisters she had been talking to, that she did not complain to Miss Perrin about Calvin keeping insurance money, that Miss Perrin did not have tears running down her face, that she did not express to Miss Perrin hate or enmity toward Calvin. She claimed the conversation with Miss Perrin was about Ebony's experience at college and she didn't say anything bad about Calvin. (Defense counsel comments on the prosecution's rough treatment of the defense witness.) Jeanie Perrin, is it really necessary, do y'all think as a citizen if you come in here and testify, with everybody jumping all over you, challenging your motives and everything when all you're doing is reporting what you say happened? She saw Ebony in the T-Mobile store in March, 2003. Ebony told Miss Perrin three or four times that Calvin took insurance money from her mother and spent it on his girlfriends. This is one full year almost before the allegation is made. She said Ebony was aggressive, very upset, angry. Ebony said, "I hate him, and I don't talk to him," referring to her father. Jeanie Perrin breaks into tears, and Ebony accuses her of being too sensitive. Ebony said they were going to get Calvin and make him pay for what he he did. She got concerned that meant physically. Ebony said, "No, no no, not going to be physical, not going to touch him. But he's going to pay." When asked what sisters had been talking, Ebony told her "Cameo is one of them." "You will see. everyone will see" she said, "He's going to pay three or four times."That's really no different than what the tattoo guy says they were saying back in '96. Now, if you would, go to the next one. (Defense counsel calls for the next slide.)THE COURT: Do you want five minutes extra?DEFENSE COUNSEL: Thank you, Your Honor.THE COURT: You have five minutes.DEFENSE COUSNEL: Val, (speaking to the court reporter) forgive me for what I'm about to do. (Defense counsel discusses the complainant Itiah.) Itiah Murphy. Calvin is not her biological father, but he's always acted like a father to her. The only complainant who testified the abuse continued after she physically developed. Look, this guy is supposedly abusing only undeveloped children according to what all the others claim. Itiah hits the stand and a he's also doing her all the way until the time she's sixteen and fully physically developed. Does a guy -- look, there's many things that may be said about Calvin in this situation, but we would have to agree that he has what I would call a robust sex life with adult women. I think they could sign on to that. Whether it's good, bad, indifferent, none of our business. It doesn't matter. Does it make sense that he would do that with so many different adult women and still be doing this with a selected number of children and not the others? And, continue when one is physically developed and all the others say it stopped before they got physically developed? Claims she (Itiah) told counselors in three mental health institutions she had been sexually abused. Not a single one of them ever reported. There's no record of it, and they are all facilities that don't exist now. So nobody can check it out. By her own admission she is a seven-time runaway, drug and alcohol abuser and not an easy child to handle in her teen years. She claims to have been physically and sexually abused by other men. Lied about the continuing nature of her relationship with her father. Contends she told her mother about the abuse, and yet her mother continually sent her back to Calvin to be molested. Then there's this cockamamie story about whether they confront Calvin and he hits the wall and says "I'm going to kill you." Do you really believe that?(Defense counsel continues to discuss Itiah's story) Let's slip back. Claims the pattern of abuse consistently remained with him pressing himself against her back and moving up and down, and whoever was in the room when he did it would pretend to be asleep. These allegations are that these other kids were present, were there when there was actual fairly severe physical movement, and the other kids never knew about it, and the other kids who were there never talked about it afterwards. Last act of abuse was when she was sixteen. Here's the same thing. She claims that the last time at sixteen was at Calvin's in his bedroom. She's sixteen. She's had this horrible history of abuse. She doesn't want any part of it. Calvin says, "Why don't you come in and get in bed." And she goes in and voluntarily does it. And, then all that happens is she says, "I don't feel comfortable with this anymore." And he says, "Okay, then leave."(Defense counsel recalls the lie of complainant Cameo regarding her effort years after the claimed abuse to have her surname changed to that of the defendant.) Cameo repeatedly referred to herself as an actress through direct examination. Requested a formal name change to Murphy at the age of fifteen, in 1996. Look, again, the mother doesn't know what the daughter is saying. The mother takes the stand and says that was Cameo's idea. Cameo takes the stand and says, "It wasn't my idea. I never saw the document." Originally she tried to say she wasn't even there. Then she had to admit it was her signature on the documents, but still insisted it wasn't her idea. Her own mother, not knowing that she's in her lying, says it was Cameo's idea. That alone should make you challenge her, because any child that has been sexually abused up to nine or ten, which is what she says, until 1991, then in 1996, five years later, wants to go in and voluntarily get a name change to the name of the abuser. Give me a break!Claims the first time Calvin picked her up for the weekend she immediately fell asleep. Look, I know I'm about out of time. I's a little bit rushed. But think about this: You've got to look and decide if what they're saying makes sense, not just who they are. And , what she would have you believe, two big things to remember: At the age of six when the first abuse supposedly happens, this is on the way to Carrington's. That is a six year old, the first time she's ever going to be alone with her father, she gets in the car and immediately goes to sleep instead of being excited and wanting to talk or whatever or nervous or scared or embarrassed? She gets in and goes to sleep? She's always asleep when the sexual abuse happens. And , he's driving a stick shift car and is supposed to on the the twenty minute drive over there, somehow to start reaching over and sexually abusing her in her vagina and all as she leans back. And, then they go to this Carrington's and after they are there, goes to a hotel room and they stay there and he does it again there including oral sex that she forgot about when the State passed her first,and then when we came back from a break, she remembered it. And, then she says there was oral sex there. And, then what did she do the rest of the weekend? And, she has no idea. She says they went to a house on Saturday night , doesn't know where, doesn't know what. Says she slept on the sofa. Unbelievable.And, the second this is, since the abuse happened when she was nine or ten, it was happening first at Sandpiper, then it was happening at Ripple Creek. And, Ripple, of course, is in another county. Said what happens is each Friday, every Friday for a two year period -- I would rest this whole case on this contention alone -- that every Friday Calvin would pick her up at her house and they would drive home, and sometimes they would stop at McDonald's, but most times they would go straight to the house. And, she would, go running upstairs -- actually, she couldn't go running upstairs at Ripple Creek because it was a three bedroom flat home with one story. But, she would go there and then later, in '91 and '92. when she would get there, she would to straight to her room and that would happen in her room. He would always come in like clockwork. Over the two year period, over forty times a year between 5:00 and 7:00 in the evening, she testified to under oath, Calvin would come in and sexually molest her. When I asked her, did she begin to see a pattern that maybe she wouldn't go in and take a nap if he was going to do that, her answer was "I was just a child." When she couldn't explain anything on the stand, it was, "I was just a child." (Defense counsel appeals to the jurors' common sense re the behavior of children.) Now, if you think -- I don't know how many of you have children. I don't have the jury information sheets in front of me - but it's a fair number of you, have had or have. If any of you have ever had an eight year old that would come in on a Friday afternoon after school, and there is not school or homework for the next day, and the first thing they want to do is go take a nap, I think you should lionize that child and put them in the Smithsonian. There is no such person. And, neither was Cameo.
THE COURT: Let's wrap it up, please.DEFENSE COUNSEL: Thank you. Would you do fifteen (calling for another slide). Finally, these are the witnesses they did not call. Any records of witnesses from any of these three institutions where Itiah claimed to be or any body saying she made that allegation to them. Any witnesses who saw the alleged hair dragging incident involving Itiah and the kicking and the hitting in the face.. The police who made the arrest. Cameo's boyfriend. The grandmother. Jamie Murphy. Lajoya's sister in Connecticut. Ebony's coach, Lori Oliver. Any of the literally thousands, let's say hundreds or whatever, of children Calvin had access to that would say anything happened.(Defense counsel signals that he is concluding.) Now, I'm through. You'll have lunch, and you're going to come back and hear the prosecutor. And, I'm sure you'll be as attentive to him as you were to me. I don't have a chance to talk to you again. This is the last time anybody on behalf of Calvin Murphy will get a chance to talk to you. On his behalf, we stand here as lawyers, on behalf of a man who has been vilified, punched, kicked with incredible allegations now since March of 2004. In this country, surely we will always continue to recognize that you're innocent until proven guilty. That if you have been engaged in some conduct people might disapprove, it doesn't mean you're guilty of a crime. And, that anytime an allegation is of a crime instead of personal conduct the State has to prove all of the elements of it beyond a reasonable doubt.(Here the defense counsel engages in "anticipatory reply," anticipating what the prosecutor may say and responding to it before it has been said; remember that in Texas the prosecutor's closing portion of the jury argument is not limited to rebuttal as it is in Texas civil cases and in civil and criminal arguments in the other states that follow the "sandwich" procedure.) When the prosecutor is talking to you after lunch, if he starts talking about how many kids the defendant has fathered, I cannot tell you how deeply I hope you will do two things: Say, Mr. Long, I remember all of the witnesses who talked about how good he was to these kids; not just everybody else, but how good he was to them. And, number two, Mr. Long, it has nothing to do with this case. Whether the defense is right as to the kind of man he is, or whether the State is right, the question is have they satisfied you beyond a reasonable doubt each of these young women that he sexually molested. (The defense counsel urges the jurors to look at the full tapestry of the defendant's life and adds a smidgeon of "golden rule" to it.) I will tell you this now: When you are looking at whether somebody has or has not committed a crime, I urge you to consider the full tapestry of their life, just as I hope people would with you, if they were going to judge you. You judge that person as to whether they are telling the truth, and to whether others are telling the truth about them in the full light of all they have done, not just those things you disapprove of. (Defense counsel exhorts the jurors to focus not on the accused but on the credibility of the accusers.) And, I would suggest to you Calvin Murphy not only has no burden, but he physically and mentally is incapable of satisfying you one way or the other from his point of view that he didn't do it. You have to look at them and what they have presented to decide whether he's guilty. (Defense counsel briefly alludes to those who testified for the defendant.)There have been no celebrities here, there have been no famous people here on his behalf. Because we recognize whether celebrities or famous people like him wouldn't have a thing to do with whether he committed a crime. We have presented you with his family, his friends, independent people who knew him, all who had one point of view of him. And, they have presented five women making allegations of what happened twelve to fifteen to eighteen years ago, all of whom have an individual axe to grind. I respectfully ask you, give him back his life. You can never fully repair his reputation, but you can take that first step to right what I would urge you is a tremendous injustice.(Defense counsel urges the jurors not to surrender their individual views. Notice the repetition of the phrases "if you believe" and "don't give in.") Finally, do not compromise your views. If you believe that he's not guilty, or if you believe you don't know or if you believe they haven't satisfied you beyond a reasonable doubt, if you believe he may be but you don't know and you're not satisfied beyond a reasonable doubt, don't give in to convenience, don't give in for rush hour, don't give in for anything. (Defense counsel closes with a very short "golden rule" command.) You vote your conscience as you would want it to be voted on your behalf.Thank you very much. Spotlighted Argument # 3
Defense Jury Argument
State v. Murphy
edited for educational purposes
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