The rest of the story

By Zack Wavrusa
Assistant County & District Attorney in Rusk County

“Pics or it didn’t happen” has been a popular online catchphrase for some time now. Usually, it’s a demand that someone provide photographic evidence to support a claim or boast that seems outlandish. Such a catchphrase would have been ridiculous 20 or 25 years ago, but the proliferation of smartphones, affordable cloud-based home security cameras, and traffic control cameras has in many ways created an expectation, however unreasonable it may be, that much of our day-to-day life be intentionally or incidentally recorded.

            Law enforcement, to at least a small extent, has recognized this cultural phenomenon, and the presence of dash cameras and body cameras is now so ubiquitous that even the smallest law enforcement agencies have equipped their officers with recording equipment. These cameras have been a game-changer for the people investigating crimes and prosecuting criminal offenses, and the presence of these devices at crime scenes has led jurors to ask—not “What did the defendant say?” or “What did the officer say?”—but “What does the video show?” 

            But anybody who’s been prosecuting for more than a few months knows that these videos don’t always tell the whole story—there’s a world of activity going on beyond the body-worn camera’s limited field of view. Our office was reminded of how important it is to go beyond the video by a recent case where a rookie officer’s body camera footage told one story about an alleged crime, while one of our citizens claimed something very different.

A day of heavy drinking

On May 6, 2018, Jane Doe (obviously not her real name) spent the day drinking. She was 60 years old and had been a heavy drinker since the mid-’90s. She resided in an apartment complex in Tatum for many years and her drinking was both well-known and greatly annoying to the other tenants.

            By 10 that evening, Jane had consumed two-thirds of a bottle of vodka and taken a variety of prescribed medications including clonazepam, temazepam, and methocarbomal to treat insomnia and muscle and joint pain. As a favor, Jane decided to take a plate of fried fish, which she’d made for dinner, to her friend Annie Sneed, who managed the apartment complex. When Jane arrived at Annie’s apartment, she thought Annie looked ill and needed medical attention.

            Jane walked back to her apartment and called 911. An ambulance was dispatched to the complex, and pursuant to Tatum Police Department policy, the sole patrol officer on duty that night was sent to the scene as well. Officer Terry Dillon Lofties was just 26, he had recently been hired, and he had graduated from the East Texas Police Academy just two months prior.

            Officer Lofties arrived on scene and made contact with Annie Sneed, who was livid that Jane had called 911 on her behalf. She insisted that she was perfectly fine, that she was only tired and didn’t need any sort of medical attention. Jane, though, had been drinking all day and she was really the one who needed checking on. Officer Lofties was wearing a department-issued body camera, so this interaction was recorded. The lens was obscured somewhat by grease or humidity, but the audio recorded without issue.

            Together, Annie and Officer Lofties went to Jane’s apartment, and Annie used her master key to open the door. Jane was in her nightgown watching television. The pair spoke with her, and after a few moments, Officer Lofties told Ms. Sneed to return to her apartment so she could tell the paramedics that she would be refusing medical treatment. The officer then questioned Jane about her day and why she decided to call an ambulance for her friend. He counseled her to remain in her apartment, sober up, and leave Annie alone. Jane promised that she would and asked that Officer Lofties stop by her apartment before he left to tell her if Annie actually refused treatment. Officer Lofties said he would, and he went to check in with Ms. Sneed again before moving his patrol vehicle to provide easier egress for the ambulance. He sat in his vehicle for a few minutes, presumably making notes for his report, before the body camera and dash camera went off.

The allegation

The next afternoon, Jane Doe called Tatum Chief of Police April Rains and reported that she had been sexually assaulted by a Tatum police officer. Chief Rains immediately reached out to the Rusk County Criminal Investigations Lieutenant Dale Summer and Investigator Russell Smith; Lt. Summer, in turn, contacted Texas Ranger Chris Baggett to assist.

            When Investigator Smith arrived at Jane’s apartment, she was preparing to go to Henderson for a SANE exam. Jane had already been to a general practice doctor in Tatum for an exam but was told that she would need to see a SANE instead. This delay turned out to be a stroke of good fortune for Investigator Smith as it let him get a first-hand account of what happened before he went about collecting evidence.

            Jane told investigators that after she called the ambulance for her friend Annie, a short, heavy-set officer with a dark complexion pushed his way into her apartment. Jane said that the officer kissed her and pushed her towards her bedroom. Once back in the bedroom, the officer pulled her panties down and pushed her nightgown up so that she was nude from the waist down. The officer then took his utility belt and gun off his waist and dropped his own pants. He then penetrated her sexual organ and ejaculated inside her. She described the feeling of his ejaculate on her private parts and on the inside of her thigh. When the officer was finished, Jane said she pushed him out of her apartment. She noted that she always slept alone so her bedroom should be tidy but, at that moment, the bed was in a state of disarray.

            Sgt. Smith then left Jane to photograph the bedroom, where he noticed that the bed appeared to be quite neat, with the blankets folded over as if someone who’d been sleeping in the bed had folded them off of her before getting up. He took canvassing shots of the bedroom and hallway before photographing and collecting all of the bedding as evidence, including a fitted sheet, cover sheet, pillowcase, heated blanket, and comforter.

            Jane was driven to Henderson for the SANE exam, where she was examined by Susan Camazine, who performs virtually all of the sexual assault nurse examinations in Rusk County. Jane gave a patient history consistent with what she had already told Sgt. Smith and what she would later tell Ranger Baggett. In her report, Ms. Camazine noted bruising on Jane’s arm and what appeared to be a recent injury on the labia minora that was consistent with a nonconsensual sexual encounter. Before concluding the exam, Ms. Camazine took a number of swabs from across Jane’s body, including from the interior of her vagina and inner part of her thigh.

            Meanwhile, Ranger Baggett was interviewing witnesses and began with Annie Sneed. Ms. Sneed told the Ranger that she had used a master key to enter Jane’s apartment the night before because Jane didn’t answer the door. It was Annie’s hope at the time that Officer Lofties would arrest Jane for public intoxication. When they opened the door, Jane was sitting in a chair drinking an alcoholic beverage. Jane was a drunk, Ms. Sneed explained, and would drink until she fell down. On the day of the incident, Annie noted that Jane had fallen down and was left with several bruises and a bloody nose. Ms. Sneed told Ranger Baggett she didn’t stay in Jane’s apartment long before returning to her own place, and Officer Lofties wasn’t in Jane’s apartment for more than five minutes longer because Annie watched him leave while she was still waiting to sign the ambulance’s refusal of transport.

            Ranger Baggett next interviewed Stasia Scott, whom Jane had called the day after the assault. Jane told her she had been raped and described the ordeal in much the same way she would later describe it to Investigator Smith. Ms. Scott informed Ranger Baggett that she had to convince Jane to notify law enforcement. Ms. Scott then took Jane to the local doctor for a sexual assault exam, and while there, Jane began asking the doctor to prescribe “nerve medication.” The doctor refused because Jane appeared intoxicated. She had also been in the same doctor’s office the day before in an attempt to get a prescription for a shoulder complaint. Jane became angry with Ms. Scott because Jane believed she had told the doctor about her drinking that day. After this argument, Ms. Scott dropped Jane off at her apartment and refused to take her to the emergency room for the SANE exam.

            After these interviews, Ranger Baggett talked to Officer Lofties at the Tatum Police Department. By this time, Officer Lofties had been informed of the allegations and had signed an acknowledgement that he was on administrative leave while the investigation was pending. Officer Lofties completely denied any wrongdoing and described the events of that evening consistently with what was depicted on his body camera. He never got within 3 feet of Jane that night, he said, and he denied having any physical contact with her, let alone any sexual contact.

            He said that after he checked in with Ms. Sneed, he spent 10 to 15 minutes talking to a fellow officer on the phone before returning to the office. This other officer, Cody Rodriguez, was a longtime friend, and it was not uncommon, according to Lofties, for the two of them to call each other and debrief after their various callouts.

Hard to believe

At this point, there was a lot of skepticism around Jane’s allegation. The hardest piece of evidence available to us was Officer Lofties’s body camera and dash camera footage. It hadn’t captured the events Jane described. Rather, the video backed up what Officer Lofties had said about the night in question, and Annie Sneed’s own observations also seemed to support his account.

            Moreover, Officer Lofties did not match the description of the assailant Jane had offered. She had described the man as short and stocky with a dark complexion, and while Officer Lofties was somewhat stocky, he was of average height and had an unmistakably pale complexion. Jane’s request for “nerve medicine” the day after the sexual assault, coupled with the doctor denying her request the day before, raised suspicions that she was fabricating the assault allegation to obtain additional prescriptions.

            Even setting aside these evidentiary concerns, the allegations against Officer Lofties seemed far-fetched. He was 26 years old, and Jane was 60. He had a wife and small children at home. He had graduated from the police academy only a few weeks earlier and had just begun his law enforcement career. He had too much going for him to throw it all away by committing such a heinous crime.

            At this early stage in the investigation, we were falling into the same trap that so many people do when hearing the details of a sexual assault. We were trying to make sense of a senseless act. This inability to appreciate that a member of our own law enforcement community could do something so hideous had us ready to believe that any inconsistency in Jane’s account amounted to a reasonable doubt. Every mental impression we had about the case was being viewed through the body camera’s narrow field of view. Our understanding of the case would quickly change, however, when some forensic testing finally allowed us to stop looking at the body camera footage and start listening to Jane.

The turning point

Despite our concerns with the case, the swabs taken from Jane as part of the SANE exam were submitted to the DPS Crime Lab in Garland for examination. Two factors proved very fortunate to Jane’s cause. First, Ranger Baggett impressed upon the lab how important it was for the testing to be completed quickly. The Tatum Police Department is an incredibly small agency. There is never more than a single officer on duty, and it was going to be impossible for the department to hire another officer while it was paying Lofties to be on administrative leave. Second, the Garland lab was beginning a pilot program to reduce the turnaround time on SANE kit testing. When this case’s swabs were submitted, the forensic scientists immediately went to work. The pilot program’s goal was to see how quickly a single case could be completed if the forensic scientist worked on that one case exclusively and without interruption. The lab did not change the tests, nor were there any changes to the science— it was truly a matter of putting themselves up against a stopwatch to see how fast everything could be done.

            The speed with which these lab tests were competed remains astonishing to me. Just 11 days after the sexual assault was committed, the Garland lab confirmed the presence of male DNA on the swabs from the vagina, external genitalia, perianal area, lip, and thigh. It gave the case a new spark. Ranger Baggett obtained a warrant for a sample of Officer Lofties’s DNA so that a comparison could be made.

            Meanwhile, Ranger Baggett interviewed another of Jane’s friends, Martha Sue Pepper. She had been at Jane’s apartment the night of the assault, and she stated that after Officer Lofties moved his vehicle out of the ambulance’s way, he sat in it for a few minutes before returning it to a parking place in front of Jane’s apartment.

            A few days later, the Garland lab completed the DNA comparison, and both the interior vaginal swab and the thigh swab (the only two that were analyzed) came back with exceptionally high numbers. The DNA mixture from the vaginal swab was 2.7 octillion times more likely to come from Jane and Officer Lofties than Jane and another unknown, unrelated individual. The DNA mixture from the thigh swab was 1.95 octillion times more likely to come from Jane and Officer Lofties than Jane and another unknown, unrelated individual. Whole sperm cells were also obtained from the thigh swab, and they were 1.48 octillion times more likely to come from Officer Lofties than from another unknown, unrelated individual. With these DNA results in hand, Officer Lofties was indicted for sexual assault by a Rusk County grand jury in June 2018.

Tying off a loose end

Ranger Baggett was convinced that Cody Rodriguez, the friend and fellow law enforcement officer who spoke with Lofties the night of the sexual assault, might be a source of material information. He arranged for Texas Ranger Nicholas Castle to interview Mr. Rodriguez, who had taken a job at a nearby county’s sheriff’s office, about two months after the assault.

            Despite the delay in getting his statement, Mr. Rodriguez recalled his conversation with Lofties quite well. Lofties called him to recount a service call on May 6, 2018, involving an intoxicated woman who had bragged to Lofties that she “used to mess around with troopers” but had “never been with a city cop” before. Because he was married, Lofties informed Mr. Rodriguez that he “squashed it right there.”

            Lofties’s sexualized depiction of Jane to his friend was significant to our view of the case. The body camera footage recorded nothing even remotely similar to this statement during Lofties’s interaction with Jane. This statement seemed tantamount to an admission that Lofties had returned to Jane’s apartment with his body camera turned off.

Pre-trial preparations

Virtually no plea negotiation took place between indictment and the trial in September 2019. As the trial approached and we began preparing our witnesses, we started to contemplate possible defensive strategies. We first considered the possibility that the defendant would enter a guilty plea and throw himself on the mercy of the jury. We wouldn’t normally give an idea like this too much thought, but with the DNA evidence connecting Lofties to Jane, we thought this decision would be the most direct path to minimal punishment.

            Next, we mused over the idea that Lofties would reverse course and admit to the sexual contact but claim it was consensual. This strategy worried me most of all. If the defense went this route, the defendant himself would have to take the stand, where we could confront him with the earlier opportunities he had, with Ranger Baggett and with his friend Cody Rodriguez, to come clean and admit to the sexual contact if it truly was consensual. On the other hand, I thought that an explanation along the lines of “I’m sorry I lied to the Texas Ranger, but I had committed adultery and wasn’t able to admit it at the time” might resonant with members of the jury, especially if any of them had committed adultery themselves. The combination of such an excuse and Jane’s alcohol- and medication-addled recollection might have been a winning combination with the right jury.

            Ultimately, the defense settled on the third possible theory we discussed internally at the office. The result of the DNA testing was our obvious “smoking gun” that tied the whole case together, and without those results, this case likely would not have made it out of grand jury. In clear recognition of this fact, the defendant centered his attack on undermining the results of the DNA testing.

The defense strategy in action

I’ll be the first to admit that I greatly underestimated the strategy of attacking the DNA evidence. It wasn’t that I underestimated defense counsel. The defense attorney’s reputation for being a cunning, persuasive attorney well preceded her. I knew going into the trial that if anybody could make this strategy work, it was this defense attorney. My mistake was in assuming that the reputation that DNA had developed in its depiction in pop culture and on the news would make it next to impossible to take down effectively.

            The main thrust of the defense’s attack on the DNA results happened during cross-examination of the forensic scientist. The defense attorney spent about two hours on cross. She never got overtly hostile with the forensic scientist, and if she was ever agitated by a response to her questioning, she didn’t let it show. The cross-examination was divided into two parts. The first was essentially a discussion of the history of DNA testing and how it has improved over time. The defense attorney drew on her many years of working with forensic scientists as a prosecutor and her experience presenting forensic DNA evidence at trial to walk the forensic scientist and the jury through the earliest days of DNA testing all the way to today’s modern polymerase chain reaction testing. The second part was a discussion on the change in how DNA results are reported. The defense attorney repeatedly emphasized that DNA testing is not able to say definitively that any specific person was the source of any particular DNA but, instead, uses a likelihood ratio that stops short of a definitive assertion about the source of any DNA.

            The defense attorney never attempted to create a “Perry Mason moment” for herself on cross-examination. Both the defense attorney and the forensic scientist were too smart and too good at their jobs for something like that to happen. Instead, her approach was clearly designed to result in death by a thousand cuts.

            In closing argument, defense counsel attempted to strike her lethal blow by implying that the scientific methods used to test the DNA in this case will ultimately be replaced by better, more accurate methods, and that those new methods would illuminate why “this crime just doesn’t make sense.” She told the jurors that she wasn’t going to stand before them and be so fool-hardy as to suggest that the DNA testing in every criminal case is bad or wrong. Rather, she focused on the uncontroverted events from the body camera footage and the witness statements that corroborated it. She noted the inaccuracies and inconsistencies in Jane’s testimony. When viewed in light of everything else we knew about the case, she argued, the DNA results simply had to be wrong—an error in the testing was the only thing that made sense.

The verdict

The jury deliberated for five hours before requesting to break for the evening. They returned the next morning and deliberated for another two hours before returning a guilty verdict.

            Jane felt like she had said everything she needed to during the guilt-innocence phase of trial, and the defendant had no prior criminal history, so the State’s punishment case consisted solely of closing argument. The defense called two witnesses, the defendant’s wife and his father.

            Lofties’s wife’s testimony was as expected. She talked about how important the defendant was to her family. She spoke at length about how he had become the father to her two children from a previous marriage and how great a dad he was to the child they shared together. She also emphasized his importance as a breadwinner and the struggles that her family would face without him.

            The defendant’s father is a retired former law enforcement officer. Despite his son’s wrongdoing, he, like his daughter-in-law, stood by his son in the wake of the criminal case. When confronted with the fact that his son would now be a registered sex offender for the rest of his life, the man became very emotional. It was a completely genuine moment that seemed to register on the faces of many of the jurors.

            The State’s argument at punishment centered on the defendant’s gross misuse of power that had been entrusted to him as a member of the law enforcement community. Our office argued that the facts of the case required a prison sentence to uphold the legitimacy of the criminal justice system in Rusk County. Ultimately, though, the emotional displays of the defendant’s family, coupled with Jane’s relative lack of emotion, resulted in the jury assessing punishment at 10 years’ confinement with a recommendation of community supervision.

Lessons learned

I am a firm believer that every single trial should teach the prosecutors a few lessons. We should come out of trial a little bit better and a little bit wiser than when we went in. We can improve ourselves through simple internal reflection and by debriefing with colleagues, witnesses, and jurors. I make a point after every trial to sit and write down the lessons I need to carry with me into my next one. This case was no different.

            First, this case really impressed upon our office and the investigators the importance of sticking with a case to the bitter end, even when the early investigation is not promising. Before the DNA results came in, plenty of people doubted Jane’s allegations against Officer Lofties. Don’t get me wrong: No member of the DA’s Office, Sheriff’s Office, or Texas Rangers ever gave up on this case. There was, however, a little bit of a lull in the investigation while DPS was preparing the DNA analysis. This time could have been used to interview Martha Sue Pepper and Cody Rodriguez. By waiting until the DNA testing was complete before we conducted these interviews, we put more time between the sexual assault and the interviews and created the opportunity for the defense attorney to cast doubt on the witnesses’ recollections of events.

            I also believe that we were not aggressive enough in the charging conference. Our office typically prepares the charge for the district judge. We collaborate with defense counsel in its construction and try to work out any disagreements about its contents as collegially as possible. Because a conviction can be reversed if an erroneous portion of the charge is objected to and any harm is suffered by the defendant as a result, our office typically errs on the side of giving the defense attorney what he or she wants.[i]

            In this case, the charge of the court as originally drafted contained three different definitions of nonconsensual sex as described in Texas Penal Code §22.011(b):
            •          by the use of force,
            •          by the victim being physically unable to resist, and
            •          nonconsensual sex resulting from a public servant actor who coerces the other person to participate.[ii]

            At the charging conference, the defense attorney objected to the inclusion of everything but the “use of force” definition. At that point in the trial, we felt confident in the evidence that we had presented as far as use of force was concerned, and rather than run the risk of an appellate court interpreting its inclusion as error in some way, we agreed to remove the “physically unable to resist” method from the charge. After trial, we spoke with some of the jurors and learned that despite both parties’ heavy focus on the DNA, the jury spent the majority of its time deliberating on consent. Despite not having an instruction to that effect, the jurors decided Jane was simply too intoxicated from the combination of alcohol and prescription medications to physically resist the defendant’s advances. Had we included this instruction in the charge and discussed it during closing argument, we could have significantly reduced the deliberation time and possibly received a punishment verdict more in line with our request.

            Our final lesson stems from the punishment phase. It goes without saying that our office did not ask that the jury recommend community supervision. While we certainly respect the jury’s decision, I feel like we could have done a better job impressing upon them the seriousness of sexual assault in general and the egregious nature of this sexual assault in particular. We took the diverse life experiences of our jurors for granted and wrongly believed that, like us, the jurors would be shaken to their very core by a law enforcement officer sexually assaulting a citizen while on duty. We should have spent time talking with members of our own law enforcement community and with the East Texas Police Academy graduates from the defendant’s class. Had we done something as simple as call one of the police academy instructors to discuss the law enforcement ethics training the defendant received or introduced a copy of the Texas Police Association’s Law Enforcement Code of Ethics, it might have diffused some of the sympathy that the defendant’s wife and father generated for him with their testimony, and it may have resulted in a punishment verdict more in line with the 20 years’ confinement that we deemed appropriate.

            With the benefit of hindsight, we would certainly do some things differently—though that’s not to say the trial had no positives. In fact, if you asked our victim, she would tell you that she was satisfied with how it turned out. Like us, she believed prison time would have been appropriate, but thanks to the incredible work of our victim assistance coordinator Salenea Turner, Jane was informed about every decision we made when we made it, as well as the logic behind it. She knew when she made the report that a lot of people doubted her story and, in some ways, she had expected us to do the same. However, the efforts of the investigative team and our office throughout the whole process instilled an appreciation in Jane that the verdict could not shake. Jane had been telling the truth the whole time—and we uncovered it, even when the body-cam footage made that task harder.

Endnotes

[i]  An error in the charge to which defense counsel does not object requires egregious harm.

[ii]  Tex. Pen. Code §22.011(b)(1), (b)(3), and (b)(8).