March-April 2013

Cruel and unusual punishment

Marci Curry

Assistant Criminal ­District Attorney in Dallas County

Carmen White

Assistant Criminal ­District Attorney in Dallas County

In Dallas, a 10-year-old boy died of dehydration when his stepmother restricted his water intake as punishment for wetting the bed. How prosecutors secured justice for this boy.

According to medical experts, it took three to five days for 10-year-old Jonathan James to die from lack of water. He had been ordered to stand on an X that had been duct-taped to the kitchen floor and to stare at an X taped on the window of his father and stepmother’s non-air-conditioned house. It was July 25, 2011, Day 19 of what would eventually be 70 straight days of temperatures over 100.
    During the summer of 2011, while news stations were warning people of the high temperatures, encouraging people to reduce their physical activities outside and to stay hydrated, Tina Marie Albertson was punishing her stepson Jonathan. For at least three days, Tina made him stand on his tiptoes while reaching for a tack, hold a 5-pound bag of potatoes over his head, and sleep in a bedroom without air-conditioning, and she prevented him from drinking water. He eventually collapsed and was rushed to the hospital.
    The emergency room doctor knew as soon as Jonathan arrived by ambulance that he was the victim of a heat-related illness. What the doctor did not know was if anyone was responsible for his condition. Jonathan arrived at the hospital with no heartbeat, chapped and bleeding lips, and a completely empty bladder. After working for over 45 minutes to save Jonathan’s life, the doctor pronounced him dead. Standing by his bedside were his mother, his twin brother, and his maternal grandmother, who was on staff at the same hospital. As the family said their goodbyes, police began their investigation.
    It is the policy of the Dallas Police Department to investigate all child deaths in the city if the child is not under medical care. Originally, police believed that the death was an unfortunate event that often occurs in the Texas summer. They treated the case much like they would treat a football player who died after practicing outside in the summer heat. However, what the police eventually learned shocked them and the entire community.

The investigation
The police began their investigation by speaking with the people who were at the house when Jonathan collapsed. They began their conversation with the adults. Michael James, Jonathan’s father, and Tina Alberson, his stepmother, told police their version of events on that day. Jonathan had been with them for his summer visit. He was having a normal summer playing video games and watching television. They reported that Jonathan was just fine until he collapsed. The parents reported that their central air-conditioning had gone out and that they only had window units in some of the rooms of the house. The parents stated that in their opinion, Jonathan got too hot because of the lack of central air and that his death was a horrible result of the Texas heat. In fact, the parent’s stories were so compelling, a Good Samaritan who heard the story on the news donated money to have the air-conditioning repaired.
    While the parents were telling one story, Joseph James, Jonathan’s twin brother, was telling a different one. Joseph told the police that Jonathan was being punished when he died.
    The homicide detectives of Dallas Police Department notified the Child Abuse Division. The homicide detectives went to the offense location while the child abuse detectives set up a forensic interview. The detectives decided that a non-leading forensic interview conducted by a trained interviewer would be the best way to get information from Joseph.
    The following morning, Joseph was interviewed at the Dallas Children’s Advocacy Center. The picture that Joseph painted of he and Jonathan’s court-mandated visitation with their dad revealed forms of punishment that sounded unbelievable. Joseph told the interviewer that Jonathan was punished from Friday until the Monday that he died. He told her that Tina told him he couldn’t have water if he didn’t eat. He told her that Tina made Jonathan sleep in the hot bedroom after the air-conditioning went out. Joseph finally told the interviewer that even after Jonathan was trying to sneak water from the bathroom sink, Tina would not let him have it. Joseph’s story was so detailed and disturbing that even the police had a difficult time believing that a caretaker would do this to a child.
    Once the interview with Joseph was complete, police knew they had no other choice but to interview Michael, Tina, and Tina’s biological son B.J. Police determined that Michael and Tina would be asked to come voluntarily to headquarters and B.J. would be interviewed at the Dallas Children’s Advocacy Center. To everyone’s surprise, B.J., Michael, and even Tina confirmed the different forms of punishment.
    During Tina’s first interview, she stated that it was dangerously hot outside and inside her home. She stated that she was making sure that all of the children were drinking water. In fact, she went as far as to say that Jonathan was drinking four to five glasses of water every hour. The detectives challenged Tina regarding how much water Jonathan was actually drinking. Once challenged, Tina admitted that she did restrict Jonathan’s water. However, she told police that she only restricted his water for a limited number of appropriate reasons. She told police that she restricted his water for 1) wetting the bed, 2) failing to eat, 3) drinking after his father, 4) taking food and water into his bedroom, and 5) receiving a timeout. Though Tina admitted to restricting Jonathan’s water, she maintained that Jonathan drank four to five glasses every hour. Further, Tina denied that she ever saw Jonathan in any distress.
    During Michael’s interview, he substantiated Tina’s story. However, B.J. was telling a different tale. Although he did not tell as much information as Jonathan, he confirmed the different forms of punishment.
    While Tina and Michael were being interviewed, the Dallas County Chief Medical Examiner, Dr. Jeffrey Barnard, was in the early stages of conducting the autopsy. Because the medical examiner had not ruled on a cause of manner of death, Tina and Michael were released. While waiting on the medical examiner’s report, police consulted Dr. Matthew Cox, a child abuse expert, to review the lab work and discuss the symptoms of dehydration.
    It took nearly a month for the medical examiner to complete his autopsy. The nature of the death was so unique that the medical examiner took every precaution to rule out any form of natural death. Once all tissue samples and lab results were complete, the medical examiner ruled Jonathan’s death a homicide. The medical examiner determined that Jonathan’s death was a result of prolonged dehydration which resulted from his water restriction. One month to the day of Jonathan’s death, Tina Marie Alberson and Michael James were arrested on a first-degree felony charge of serious bodily injury to a child.
    After the arrest, police conducted custodial interviews of both Michael and Tina. Michael finally admitted that he knew Tina was depriving Jonathan of water. He even told police that he and Tina argued about her not letting Jonathan have water. He stated that at one point he instructed Jonathan to sneak water in the bathroom. When confronted as to why he didn’t do something to help his son, Michael blamed the fact that he is blind in one eye, wheelchair-bound, and unable to care for himself as an excuse as to why he lied to the police during his first interview. Michael maintained that he never saw any signs of illness in Jonathan.
    Once the police had statements from the children and Michael, they finally conducted a custodial interview of Tina. It was only then that Tina admitted that she restricted Jonathan’s water as form of “discipline.” She stated that she had restricted water before as a form of discipline and it had not caused illness in the past. She maintained throughout her entire interview that she did not mean to kill Jonathan. Both Tina and Michael told police that Jonathan went to a party on the Saturday preceding his death and that he drank soda and ate cake. She claimed that Jonathan never showed any signs of distress.

Charging decision
Once the police had the statements from the witnesses, defendants and all medical personnel, police filed the cases with the District Attorney’s Office.
    We first had to decide what to charge. Though Jonathan was dead, we thought that a murder indictment was not appropriate. Everyone, including the detective, agreed that the defendants did not deprive Jonathan water with the intention to cause his death. However, we believed that the defendants knew that depriving Jonathan of water in the record-setting heat without air-conditioning was reasonably certain to cause him serious bodily injury. Therefore, we decided to charge the defendants with injury to a child by intentionally and knowingly causing serious bodily injury to Jonathan James by not providing adequate hydration and failing to seek medical attention.

On the surface, this case read like a one-hour episode of “Law & Order”—an open and shut case. However, this case was anything but. It was riddled with challenges. The first challenge was proving intent in the indictment and proving failing to seek medical treatment. The second challenge was handling child witnesses. The final challenge was explaining why Jonathan, a 10-year-old boy, did not defy Tina and get water.
    After a thorough review of the evidence and interviews with the doctors and witnesses, we decided to strike intent and failure to seek medical attention out of the indictment. We felt that narrowing the jury’s attention to Tina’s knowledge of the action she took would make the trial cleaner.
    We handled the second challenge by spending several hours interviewing the children. We spent time with B.J. just letting him know that he could tell the truth and that he would not be responsible for putting his mother in jail. He was a very sad, 14-year-old stuck in the middle between his loyalty to his mother and the truth. Joseph was a separate challenge. Throughout the course of the case, Joseph had shown signs of attention-seeking. It became clear early in the case that although Joseph was telling the truth about the details of the offense, he liked the attention from the media and authorities that the case was giving him. We spent a tremendous amount of time explaining to Joseph the importance of telling the truth and not treating this like a TV show.
    Though the first two challenges were easy to handle, the third challenge came with a price. We knew that to convince a jury that Jonathan would obey Tina even to his detriment, we had to show them that Jonathan was terrified of Tina. Although Joseph and B.J. told stories of discipline, we did not have any witnesses to speak about how mean Tina was to Jonathan, and we did not know how we were going to prove it. But about a week before trial, our question was answered. Michael’s attorney contacted us and told us that Michael wanted to talk. He wanted to testify against Tina. We decided that we would meet with him, but we would not offer him any deals in exchange for his testimony. To our surprise, Michael agreed to testify without a deal. Michael told us in his interview that Tina was restricting water more than he originally said and that Jonathan was sick a few days prior to his death. He described Jonathan as lethargic and very thirsty. This was consistent with the dehydration symptoms the child-abuse expert described to the police. He also told us that Tina was bi-polar and that all her anger the week that Jonathan died was directed at the child. With that information, we had our final piece of the puzzle.

The trial
The first jury we attempted to pick was released. A majority of the venire panel had read the media coverage of the case and formulated an opinion before they appeared for voir dire. We were able to seat a jury the second day. We spent the majority of jury selection discussing mens rea. We knew from the beginning that the only issue would be Tina’s state of mind when she committed this crime.
    We started our case by putting on emergency room doctor. This doctor testified about Jonathan’s condition when he arrived at the hospital and the lab results from the hospital. The most telling thing the doctor stated was that Jonathan’s bladder was completely dry.
    Jonathan’s mother was our second witness. She described Jonathan’s character as a sweet, loving boy who loved to play outside. This was a stark contradiction to the description Tina gave in her interviews, that Jonathan was a lethargic child who would rather watch television than play outside. Tina would also say that he was a constant troublemaker and there was no rhyme or reason for him being bad; he was just bad to be bad. Next, we called the police officer who went to the house on the night of the child’s death. The most important thing that this officer testified to was that the house was stifling at 3 a.m. when the police arrived to take pictures and investigate the crime scene. He described that it was “so hot that it was hard to breathe.” The first day of the trial ended with one of the most important witnesses: the lead detective. The lead detective testified to Tina’s demeanor during her custodial and non-custodial statements. She showed no remorse in her actions and she would occasionally laugh when recalling how the boy aggravated her during the days leading up to his death. We then entered the videos of Tina’s statements. The jury was able to see the stark contrast between Tina’s first two statements and her subsequent admissions to the detective. They were also able to see how her statements contradicted the proven medical evidence. We thought it was important to end the day with Tina’s statement because we wanted the jurors to know on Day One that it was Tina who restricted the water. We knew that once we convinced them of that, all we had to focus on the next few days was what she knew when she was taking these actions.
    As the trial continued, we introduced periodicals to show the extreme temperatures during the days that Tina was depriving Jonathan of water. We also called her husband, Michael, to the witness stand. He told the jury that Tina “had it out” for Jonathan. He stated that Tina would be there to stop Jonathan when he tried to get water. He also told the jury that Jonathan was sick and he and Tina discussed Jonathan’s illness. Finally, he confessed that he and Tina argued over Tina depriving Jonathan of water.
    Ten-year-old Joseph testified on the third day of trial. Joseph was a wonderful witness. He was polite and charming with the jury. The jury laughed along with him when Joseph admitted that he, not Jonathan, was the real troublemaker in the family. He told the jury how Tina was punishing Jonathan and restricting his water. He also told the jury that Jonathan did not wet the bed and that Tina was just being mean to Jonathan.  He testified that the night prior to Jonathan’s death, Jonathan and Tina stayed up all night and when Jonathan died, he hadn’t slept in over 24 hours.  He did not know what punishments Jonathan endured during that time.  Joseph, whom we believed would be one of our biggest challenges, ended up being a great witness.
    We ended the State’s case with the medical evidence. Dr.  Barnard testified that in all of his 40 years of practice, Jonathan’s sodium level was as high as he had ever seen. He also commented on how a completely dry bladder was a very unique finding. Dr. Barnard testified that Jonathan’s death was due to kidney failure and cardiac arrest, which were direct results of dehydration. Dr. Cox testified that the sodium level was extreme. According to Dr. Cox, Jonathan’s lab work indicated that he had suffered prolonged dehydration. He also testified to the effects of dehydration and how a dehydrated child would act. He stated that Jonathan would have been dehydrated and at some point his body would have craved water to the point that he would sneak water or do whatever he could to get water. He said that near the end of his life, Jonathan would have become delirious. Dr. Cox’s testimony confirmed the witnesses’ statements of Jonathan’s behavior prior to his death.

The defense’s case
Then the defense began its case by calling Tina’s son B.J. to the stand. We were prepared for this. We choose not to call B.J. because we thought it likely he could not tell the truth and harm his mother. Shaking and with tears streaming down his face, B.J. claimed that Jonathan was not in trouble during that period. He stated that Jonathan had as much water as he wanted. His testimony was very sad. Although we knew that we could impeach him with his previous statements to us, we choose not to. Instead, we asked B.J. about his current family situation. He was currently in foster care as both his mom and step dad were in jail. We pointed out through B.J.’s testimony that this little boy wanted to be back with his mother and that he was refusing adoption from a family in hopes that his Mom would come back home. We felt like it was clear to the jury that B.J. was just trying to save his mother.
    Throughout preparation and trial, we believed that Tina would not testify. She had a previous prison trip for committing aggravated assault with a deadly weapon by running over a man with her car. She also had a prior family violence assault conviction against her first husband. We were sure that this information would keep her from testifying. However, to our surprise, the defense made a motion to allow the defendant to testify free of impeachment of her convictions. The defense argued that 10 years had elapsed since she was sentenced and that the probative value of admitting the aggravated assault conviction did not substantially outweigh the prejudicial effect. Although the State argued that it had not been 10 years since her actual sentence, the judge agreed with the defense that when calculating the defendant’s back-time credit at the time of her plea, her 10 years had expired the day we selected the jury. The judge found that the statute’s the time limit is applicable when the defendant takes the stand, not when the trial starts, so she was allowed to testify free of impeachment.
    Tina spent the first hour of her direct examination explaining what a dedicated mother she was. She described herself as the mother who never let her children out of her sight and the mother that kept Joseph from failing school. She maintained that she never saw any signs of distress with Jonathan and if she had, she would have taken him to the doctor. She told the jury that she did minimally restrict Jonathan’s water, but that he drank several glasses of water everyday. We confronted Tina by pointing out that her statements were medically impossible. She stated that the doctors were wrong. At the end of her cross-examination, she admitted that she knew that depriving anyone of water in those conditions of that summer would with reasonable certainty cause that person serious bodily injury, such as heat stroke or heat exhaustion.
    During closing argument, we felt it was important to remind the jury of several key issues. We emphasized that we did not have to prove that Tina intended to kill Jonathan. We reminded them that Tina did not have to know that Jonathan would die or that he would die from dehydration. We told them that Tina did not have to see any signs of distress in Jonathan. Finally, we argued that Tina knew that her deprivation of water was causing Jonathan’s illness because right before he collapsed, Tina gave him the one thing that she had been denying him: water. She gave him several glasses of water and put him in a bathtub filled with it.
    The defense argued that Tina did not know her actions were causing serious bodily injury because she didn’t see any signs that he was sick.
    After more than three hours of deliberations, the jury returned a verdict of guilty on the lesser-included offense of reckless serious bodily injury to a child. This offense carries a punish range of 2 to 20 years in prison. However, with the enhancement paragraph, the punishment range was increased to five to life.

We began the punishment phase with Tina’s criminal records. After evaluating the underlying offenses, we chose to put on the certified copies of the judgments rather than the witnesses. We also called Jonathan’s maternal grandmother, Sue Shelton. She gave a powerful and heartbreaking testimony of who Jonathan was and how his death impacted their family. With the jury listening as tears ran down their faces, Jonathan’s grandmother expressed guilt for not keeping Jonathan away from his dad’s house. She testified that Jonathan begged her that he not have to go, but she felt she had no choice. She left the witness stand after asking the jury for a lengthy prison sentence.
    The defense called Tina’s father to the stand. He had only been in Tina’s life for the five years preceding the trial. He stated that his daughter was a good person and that she was sorry for what happened to Jonathan. He asked the jury for the minimum sentence.
    Tina also took the stand in the punishment phase of the trial. She testified that the prior assaults were not her fault but that she was responsible for Jonathan’s death. She testified on cross-examination that when people make her angry, she feels justified in hurting them.
    At the close of the case, the State asked for a life sentence and the defense asked for the minimum sentence of five. After approximately 20 minutes of deliberations, the jury returned a verdict of 85 years. (Michael James’s case is currently pending and set for trial later this summer.) 

Lessons learned
The media coverage played a major role in the trial. The news cameras were present every day, and reporters were in the courtroom watching and writing about every word. The jury and the witnesses were well aware of the media. The judge would not allow cameras in the courtroom, but they could film through a window in the door, the same door witnesses had to pass through to take the witness stand. Several witnesses said it made them uncomfortable. In the future, we would keep the cameras out of view of the witnesses as much as possible. Jurors also sent a note to the judge stating they did not want to be filmed or interviewed. We passed this along to the media and at the end of the trial they were escorted out of the back of the courtroom.
    Witness preparation was key to this trial. I met with Joseph several times, though we did not talk about the facts of the case every time we met. In fact, during most of our meetings, we discussed the importance of telling the truth, being calm, and not acting out in trial. It was these meetings that made Joseph a good witness. In fact, Joseph testified in trial that I told him to keep his conduct in court on the “down low.” Although I did not use that phrase, he had understood my point. The jury complimented the doctors and felt that they were a very important component to the case.
This successful prosecution is a direct result of the hard work of the professionals in this case. The multi-disciplinary team made up of the Dallas Police Department, Child Protective Services, Dallas Children’s Advocacy Center, Children’s Medical Center, Charlton Methodist Hospital, the Medical Examiner’s Office, and the District Attorney’s Office, worked hand-in-hand to expose the cruelty Jonathan suffered all in the name of punishment. On January 22, 2013, Jonathan received his justice.