The District Attorney is the most powerful law enforcement official in any county. He or she is king or queen of the realm, speaking for the people in the courts, enforcing the law, going after the bad guys, deciding who will and won’t be subject to the death penalty. You hear all kinds of people complain about the power of DAs—the discretion they have to charge whomever they want; the abuses of power they sometimes engage in to nail the criminals they are sworn to protect us from. You hear these complaints mostly from defense attorneys, state representatives, or journalists. You almost never hear them from other DAs.
That is, unless you live in east Texas. In the continuing saga of the Mineola child sex cases (which I wrote about in “ Across the Line,” April 2009), the DA from Wood County has publicly and officially attacked the cases of a DA from Smith County, right next door. The cases involve six adults accused of running a sex kindergarten in Tyler and a series of child-sex shows at a swingers club in nearby Mineola. There was no other evidence except for the words of five children—no tangible physical evidence and no adult witnesses—but it was enough to send the first three defendants to prison for life in 2008. In our story, Jim Wheeler, Wood County DA, told me, “There was a total lack of corroboration for what those kids said happened.”
Now Wheeler has said this in court, officially calling into question the entire basis of the Smith County cases. The drama took place on Tuesday, March 23, at a hearing where oral arguments were being held before the 14th Court of Appeals in two of the cases, those of Patrick Kelly and Jamie Pittman. Wheeler filed a 73-page amicus brief in which he wrote that his county’s grand jury had initially investigated the allegations but refused to indict anyone “because no evidence was located to corroborate the stories told by the children.” One of the revelations of the amicus brief was how the whole Smith County investigation of activities in Wood County got started in the first place. After Wood County investigators initially concluded in 2005 that no crimes had been committed, there was an organized effort by law enforcement agencies—including Texas Ranger Philip Kemp and prosecutors from both Wood and Smith counties—to move the case to Smith County. Wheeler (who didn’t take office until January 2007) reveals an email from a former Wood County ADA who wrote, “I believe the decision was intentionally made IN CONJUNCTION WITH Smith County to have it prosecuted there because we believed getting it out of Wood County would result in better prosecution (from the judge on down).”
Another revelation was that Russell Adams, who with his wife Sherry ran the swingers club, had testified to the grand jury that he had been interviewed by the Smith County DA’s office back in 2008 and that he had told them he had never seen any of the defendants nor any children at the club. But the prosecution had never revealed this interview to defense attorneys. Adams’s allegations mirrored those made by his wife, allegations that led to one of the more explosive moments at the Kelly trial, when she said she had been interviewed at the Smith County DA’s office by three investigators, including Kemp and Todd Thoene, the lead investigator from the DA’s office—though again no report was ever written up. Sherry swore in an affidavit that she, like her husband, told the investigators that she had never seen any of the defendants nor any children at the club. Smith County investigators admitted they had interviewed Sherry but said they never wrote a report because she had given them no new information. As for Russell Adams’s current claim, Bingham and his office say it never happened. “That interview simply did not happen,” the DA writes in its reply to Kelly’s brief before the 14th Court of Appeals.
The day after the hearing, Bingham responded angrily to suggestions by Thad Davidson, one of Kelly’s trial attorneys, that prosecutors in Smith County “did whatever they had to do to get convictions, including hiding evidence and lying.” Bingham told local TV station KETK, “They can say, ‘Hey, Matt Bingham is a bald-headed ass,’ I can live with that, but when you attack my integrity, it really upsets me.” Nothing was withheld, he said, noting that Wheeler was essentially working for the defense.
The oral-argument hearing and Wheeler’s amicus brief are just the latest in a series of blows over the past year that have made the state’s weak case look even weaker. First came pre-trial hearings for the fourth defendant Jamie Pittman last July, in which defense attorney Jason Cassel was able to get investigators and social workers to admit that there was plenty of evidence that never made it into the first three trials, such as seven different interviews with the five children in which they either never mentioned a sex kindergarten or sex club or they denied that they knew anything about either one. At the end of those hearings, Bingham told Trial Judge Jack Skeen that he was going to recuse his office from the Pittman case and ask the Attorney General’s office to step in and take over. The AG’s office refused but offered to assist in the prosecution, then sent two attorneys to Tyler.
Eight months later, says Jerry Strickland of the AG’s office, “The review is ongoing.” Will it decide anything before the 14th Court of Appeals rules, sometime in the next three months? Doubtful. One has to wonder how much more evidence authorities need to conclude that these convictions—based on zero evidence besides words from the mouths of babes, every single one of whom initially denied anything ever happened to him or her—were unsound. Don’t take the word of Patrick Kelly’s mother, who has been a steadfast alibi for