The Prosecutor, September-October 2010, Volume 40, No. 5

How’s the weather in there?

How Waco prosecutors called on an old friend—the local weather anchor, a former assistant DA himself—to counter defense claims in a child sexual assault case.

By Beth Toben
First Assistant Criminal District Attorney in McLennan County, and
Lon Curtis
Meteorologist with KWTX in Waco

When I was a Girl Scout, I learned a song that said “Make new friends, but keep the old. One is silver and the other one gold.” The wisdom of this children’s song came to light recently when I needed the help of a meteorologist while prosecuting a child sexual abuse case.

    We were prosecuting a step-father for sexually abusing his 11 year old step-daughter, whom we’ll call Annie. When Annie’s mother heard of the abuse, she was not sure she believed her daughter. She questioned Annie and her husband repeatedly to determine who was telling the truth. The girl explained that one of the incidents happened while her mother was in Dallas on business. Annie’s mother asked her husband why the child was in the bedroom with him that night, and he claimed that the girl came in his room to sleep because she was afraid of the thunderstorms and lightning that were going on outside. At trial, both the mother and the defendant testified that Annie was afraid of storms, and that was why she was sleeping in the defendant’s room.

    To impeach the defendant, we decided to check the weather. We called Lon Curtis, formerly an experienced prosecutor from Bell County, who has moved on from doing “the Lord’s Work” to his current career (reporting on “the Lord’s Creation”) as a weather anchor for News 10, the CBS affiliate in Central Texas. To my delight, Lon remembered me—he even remembered dancing at the Quarterdeck at the Annual in South Padre years ago. (This is clearly evidence that those receptions truly are beneficial.) To my even greater delight, Lon was willing to help, and the News 10 management agreed to let him testify.

How Lon prepared (in his own words)

My interest in weather stretches all the way back to the fourth grade at Tyler Elementary School in Belton. In high school, I thought I would study meteorology in college and perhaps become a weathercaster. I even had a stint as a radio weathercaster for a local station during my last year in high school. Alas, I ended up a lawyer and spent 24 years as a prosecutor in Bell County.

    The idea of a career in meteorology faded, but my interest in the science did not. I began chasing severe storms in the early 1990s, and on May 27, 1997, I saw and photographed eight or nine tornadoes, including the F-5 tornado that killed 27 people at Jarrell. All of sudden, several television stations were interested in having me chase storms for them. My life changed in September 1997 when (driving home from TDCAA’s annual meeting in Arlington) I received a phone call from KWTX asking if I would be interested in working part-time doing weekend weathercasts. The regular weekend weathercaster was leaving suddenly, and they wanted me to cover the weekend shows until they could hire someone permanent. For more than three years, I worked as a prosecutor Monday through Friday and as a weathercaster on the weekends. In May 2001, I retired from county employment and began my new, full-time career as the morning and noon weathercaster at KWTX.

    Although I had done some forensic weather research for out-of-state attorneys, I had not been called to testify in court until this trial. Beth gave me several dates in September 2008 on which the offenses might have occurred and wanted to know if I could find out whether there were thunderstorms in McLennan County on those nights.

    I bypassed one obvious source of information intentionally. At least two companies in the country operate lightning detection networks, which record the lightning strikes with great precision. That data is stored and can, for a fee, be made available for forensic investigations. The reason I bypassed that type of data is that the lightning detection systems record only lightning strikes that hit the ground, and because some thunderstorms produce mainly cloud-to-cloud (within the cloud) lightning, the data from the lightning detection networks would not have been conclusive.

    Instead, I looked at the daily climatological data available from the website of the National Weather Service (NWS) office in Fort Worth, which includes data from the Waco airport. The records from the NWS website indicated that there were no thunderstorms reported at the Waco airport on the nights in question. Unfortunately, the record also displayed a bold caption cautioning that the records displayed there were “unofficial” and that the official record could be obtained from the National Climate Data Center (NCDC) for a fee. I knew from years of using NCDC data and comparing it with the data stored locally at NWS offices that the data was always the same. The direction to obtain it from NCDC was primarily a way to generate money for the agency.

    Anticipating that a defense attorney might question whether the Waco airport records were conclusive as to whether thunderstorms might have occurred elsewhere in McLennan County, I went to a section of the NCDC records where digital radar data generated by the network of nexrad radars is stored. (“Nexrad” is the popular name for the next generation of weather radars developed in the 1980s and deployed across the country in the ’90s.) Access to these stored records for each radar site is free unless you want the data “certified,” which requires a fee. I vaguely recalled a rule of evidence, Rule 703, that allows for expert testimony about what is contained in records commonly used by experts in forming opinions, provided that the records themselves need not be admissible in evidence. This rule opened the door, at least preliminarily, for me to utilize the radar records without having them certified, which costs money and takes time—an important consideration because I wasn’t sure whether the records could be certified and available by trial.

    Two of the nexrad radar sites provide excellent coverage of McLennan County. Those radars are located on the far south side of Fort Worth and south of Temple near Granger. It took me about 10 minutes to look at the summary records from those sites and conclude that there weren’t any radar echoes that supported the existence of any convective cells (known to lay-people as thunderstorms). I was able to make this quick decision simply by noting that both radar sites operated in a clear air volume coverage pattern (VCP) (in lay terms, “mode”) at all times on the nights in question. If a nexrad had detected any convective cells, it would have automatically switched to one of several precipitation modes instead.

    To back up my preliminary opinion, I also downloaded some of the individual radar files and inspected them in software suitable for the purpose to be sure that there weren’t cells that the radars had ignored. There weren’t. Based on that, within a few days I was able to tell Beth that in my opinion, there weren’t any thunderstorms (convective cells) capable of producing lightning anywhere in or near McLennan County on those nights. By then, it was too late to get the radar records from NCDC certified and delivered to us, and Beth elected not to have me testify as an expert because the deadline for designating experts had also passed. But she thought she could get my testimony in for rebuttal.

Back to Beth (in her own words)

The defendant opened the door to Lon’s testimony by claiming that his step-daughter was “sleeping” in his bedroom on the nights in question because she was scared of lightning and thunderstorms outside. He had even convinced his wife (the girl’s mother) that this was true, and she believed him because the child apparently is actually afraid of storms. When we called Lon in rebuttal, he explained to the jury that he had checked the records kept by the Waco Municipal Airport to make this determination. The defense attorney, who is a pilot, questioned Lon’s conclusions, pointing out potential inaccuracies in the airport weather reporting system. In a very thorough way, Lon explained that he had also checked the automated radar records generated by the National Weather Service radar system, which conclusively indicated that there were no thunderstorms or other cells capable of generating lightning, and thus, thunder, anywhere in or close to McLennan County, on those nights in question. Having been shut down, the defense had no other questions.

    The jury found the defendant guilty of three counts of aggravated sexual assault and one count of indecency with a child by exposure. The Honorable Judge Matt Johnson out of the 54th District Court stacked the sentences, and the defendant was ordered to serve 145 years in prison.

    After the trial, one of the jurors told us that when the defendant testified about the weather, the juror wondered if there was any way to verify that testimony. He said when he walked into the courthouse the next morning and saw Lon sitting outside the courtroom, he smiled to himself and thought, “Busted!”

    When we left the courthouse, there was a double rainbow in the sky. Most unusual! I couldn’t help but hope that the pots of gold at the end of those rainbows were at the Channel 10 weather desk rewarding my “old” friend, and fellow prosecutor, Lon Curtis for jumping in again to do “the Lord’s Work!”

    The moral of the story? We make some pretty great friends in this line of work. We need to remember to make new friends, but keep the old—one is silver and the other one gold!