A Question of Compassion for Travis County's Family Violence Court
A woman alleged rape. The man she accused went free. Should his attorney run our court?
It's the phrase "emotionally disturbed woman" that continues to weigh heavily on Samantha's mind. That professional opinion was made by a paid medical expert witness during the trial last November of her sexual assault case – a witness she believes the defense hired to undermine her rape allegation and attack her credibility. Since the trial's end, Samantha has remained concerned that the defense counsel, including Margaret Chen Kercher – now seeking election as the judge of Travis County's family violence court – tried to circumvent state rape shield laws. Now she's asking: Is Chen Kercher the right person to help domestic violence survivors as a judge?
Chen Kercher has sought the County Court at Law No. 4 bench since last fall, when its founding judge Mike Denton stepped down to run for Travis County attorney. She was among four people interviewed by the Travis County Commissioners Court to fill the seat until this year's elections. Dimple Malhotra was appointed in October and then faced Chen Kercher and Tanisa Jeffers in the March 3 primary, coming in first place but not avoiding a third contest against Chen Kercher in the July 14 runoff.
County Court at Law No. 4 predominantly handles misdemeanor cases involving family violence, including protective orders for sexual assault, domestic violence, stalking, and trafficking. It also oversees Phoenix Court, a pre-adjudication program to help sex workers in the criminal justice system. Advocates have said the CCL4 judge must have an extensive background working with survivors of intimate violence.
Chelsea Brass, a Ph.D. candidate at UT-Austin studying coercive dynamics in the context of domestic violence (and an open Malhotra supporter), told the Chronicle she involved herself in this race due the complexities of domestic violence – the stigma for staying, the trauma of living in a state of prolonged threat, and potentially lethal harm. For these reasons, Brass argued, the CCL4 judge "needs that specialized knowledge of not just traumatic incidents, but the effects of complex trauma over time." After hearing about Samantha's story, Brass too is uncertain if Chen Kercher is that person.
Upon learning of Chen Kercher's bid for CCL4, Samantha, who requested her last name be withheld for safety concerns, said the news "breaks my heart. Margaret Chen Kercher was one of the defense lawyers that helped the man I accused of raping me walk free, dragged me for having PTSD, and attempted to violate the rape shield law."
Now living outside the country, Samantha told the Chronicle she was raped in a Downtown Austin hotel on an August morning in 2016. She immediately called 911 and consented to a sexual assault forensic exam, which gathered DNA that matched the man she accused of rape. The accused, according to police interviews obtained by the Chronicle, originally told Austin police he did not have sex with Samantha. "I did not put my penis in her," he's recorded saying. "I don't see how you would find [my] DNA in [her] vagina unless that girl got on top of me and ride me when I was sleeping ... My DNA definitely shouldn't be inside that girl." Once his DNA was discovered in Samatha's rape kit, his story changed. He testified that the two had consensual sex. In late November 2019, he was found not guilty. (Because the case has been expunged and the defendant acquitted, he will not be named.)
"Everyone kept telling me it would be so empowering to face him," explained Samantha. "Unfortunately, that was not at all my experience." Though warned by loved ones to expect personal "attacks" from the defendant's legal team, Samantha admitted she wasn't prepared for what she repeatedly described as "unethical" treatment by the defense attorneys.
"I understand that the defense needs to ensure their client has a fair trial, but they also have the professional responsibility to do so ethically," wrote Samantha in a statement she shared with the Chronicle. Chen Kercher's pushing against "the rape shield law, which is in place to protect victims of sexual assault, is completely unethical."
Texas' Rape Shield Law
The 1994 Violence Against Women Act created the first federal rape shield law, but most states adopted similar laws by the early 1980s. Texas Rules of Evidence 412, which applies to both the prosecution and defense, limits the ability to cross-examine sexual assault victims about past sexual behavior. The bulk of a survivor's sexual history is inadmissible, and attorneys are prohibited from bringing up "specific instances of a victim's past sexual behavior," including any previous sexual assault allegations.
Betty Blackwell, a local defense attorney and former chair of the Commission for Lawyer Discipline (a statewide committee overseeing the State Bar of Texas' grievances against lawyers), told the Chronicle that, prior to the adoption of rape shield laws, "a woman's entire sexual history could be gotten into [during a sexual assault trial] even if she had been brutally raped and had clear evidence of trauma."
Rape shields vary by state; in Texas there are limited exceptions that allow the defendant to cross-examine the survivor about previous sexual behavior, but according to Andrew Rountree and Denise Hernandez, the prosecutors who took Samantha's case to trial, this "must be determined by the judge via an in camera hearing outside the presence of the jury." Blackwell added that Texas does allow for any history between the "complaining witness" (the survivor, from the defense's perspective) and the accused to be allowed in court.
What Happened In Court
Prior to her alleged rape, Samantha was diagnosed with post-traumatic stress disorder following a traumatic incident that occurred while she was in Uganda with the Peace Corps. But by August 2016, Samantha said she was doing much better and, with her doctor's approval, was no longer on medication to manage her PTSD.
According to Rountree and Hernandez, the judge ruled Samantha's history of PTSD was inadmissible, but the defense attempted to prod the expert witness about her diagnosis, which was reported in her rape kit records. The judge again ruled the topic inadmissible. To the Chronicle, the prosecutors elaborated via email: "In this specific case, the defense requested the judge review a prior sexual incident involving Samantha for the purpose of cross-examination. The State argued that this sexual incident was inadmissible." After reviewing the information outside the presence of a jury, the judge ruled it inadmissible. Still, the ADA's said, the defense continued to ask the court to reconsider its ruling, which the judge repeatedly denied.
However, later – during Chen Kercher's cross-examination of the nurse who conducted Samantha's sexual assault forensic exam – the defense again asked about Samantha's history of trauma. Though instructed not to discuss it, the nurse told the jury Samantha had reported a history of PTSD during her exam.
The prosecutors didn't object to the nurse's slip. To the Chronicle, the pair explained that, when faced with such a decision, they can: 1) object and ask for it to be stricken from the record, 2) ask the judge for a mistrial, or 3) not object to the answer, so as to not draw further attention to the subject. The State, they said, rarely asks for a mistrial, and in instances where an answer is stricken from the record, they said "you can't 'unring the bell' for the jury and oftentimes it draws more attention to the statement than otherwise desired."
When asked why Samantha's PTSD played such a large role in the defense's case despite being inadmissible, Chen Kercher said she has "an ethical obligation to her client" to not discuss what happened during the trial. But, speaking generally, she explained that lawyers "in all professional functions," under Texas Disciplinary Rules of Professional Conduct, are required to "zealously pursue [a] client's interests within the bounds of the law." Therefore, "defense attorneys have to adequately and zealously defend their clients regardless of their personal feelings. Sometimes, that requires asking the judge to make a ruling on a point of law that is controversial."
Expanding on the rules of conduct, Krista A. Chacona, current president of the Austin Criminal Defense Lawyers Association, told the Chronicle, "It is our obligation to try to get in what information we can that is helpful to the case. If we offer something the other side thinks is excludable under the rape shield law, they object and the judge, in his or her gatekeeping role, decides."
Throughout the trial, Samantha said the defense continued to dredge up her past. She and the prosecutors spoke about a social media post Samantha made roughly two years prior on an account she later deleted. Samantha said it was a response to a statement from Donald Trump on assault; in the post, she spoke about her alleged rape as well as other unwanted sexual incidents. Under Texas' rape shield law, that information should not be allowed in court, but the defense tried to enter the post as evidence. As Samantha recalled, "The defense argued for a long time to use it. The judge kept saying no."
The Expert's Testimony
But it's Chen Kercher's questioning of the defense's paid medical expert, Dr. William Lee Carter, that Samantha returns to. While she wasn't allowed to listen during the trial (under Texas Rules of Evidence 614 to prevent witnesses from being influenced by one another, Samantha was only allowed in the courtroom during her testimony and closing arguments), she has since reviewed the transcript of Carter's testimony (as has the Chronicle), in which Carter tells Chen Kercher, "It was very plain that she is an emotionally disturbed woman. ... She is a very emotionally labile person."
It's also suggested she suffers from a "personality disorder." In the transcript Carter says some "personality disorders" are "dominated by skewed identity," expanding: "People who don't have good answers to that question of 'who am I' may have trouble regulating their emotions. They may have trouble knowing how to put boundaries around relationships. They may be very volatile in their emotional expression, their behavioral expression, and, you know, they enter risk-taking situations, relationships, etc."
Carter told jurors he didn't evaluate either Samantha or the defendant; Samantha confirmed she had never spoken to Carter before he testified. His opinion was derived from watching her testify, hearing her "stress-induced vomiting" earlier in the courthouse, and reviewing "some of the evidence" – she doesn't know what.
What she is certain about is that the defense attempted to discredit her allegations of rape by making her out to be emotionally unstable. (A Buzzfeed article on Samantha's case, in which several jury members are interviewed, reinforced this conclusion.) "I never even got to explain what my PTSD is like," said Samantha. "But it's not like I don't know what's going on around me. I know the difference between a nightmare and waking up to being assaulted."
Carter told the Chronicle he was a witness for the defense and "properly compensated" for his time and expertise. It's not out of the ordinary for expert witnesses to be paid and to not interact with the survivor. According to Rountree and Hernandez, state law allows a "qualified expert to testify in the form of an opinion" to help juries understand the evidence. Such witnesses can "watch testimony and form an opinion based on their experience, expertise, training, and knowledge."
While all attorneys must adhere to the state's Rules of Professional Conduct, Chacona said neither the defense nor prosecution is obligated to treat a witness kindly. Instead, "we are obligated to test the credibility of a witness." Regardless of the case, Chen Kercher said defense attorneys are obligated to defend their clients "to the best of their ability and that obligation does not change based on the charge."
The CCL4 Bench
Still, recalling her experience with Chen Kercher, Samantha said, "I'm terrified of the pain [she] could inflict onto others seeking support, justice, compassion, and an ethical, competent judge" if she's elected to the CCL4 bench. Reflecting on how Chen Kercher questioned Carter and focused on her PTSD to attack her credibility: "I don't think she should be working on domestic violence cases. What is she going to do – tear apart domestic violence victims?"
As a "daughter of immigrants and an attorney for indigent clients," Chen Kercher told the Chronicle via email, she "understand[s] the barriers that exist in the justice system and the need for systemic change." She says her work over the last decade has been dedicated to "breaking the cycle of incarceration and ensuring my clients, many of whom cannot afford a lawyer on their own, receive equal access to justice." She says that commitment has fueled her campaign for the CCL4 bench.
When asked about concerns that she would lack compassion for survivors of domestic violence, Chen Kercher responded: "It's not a fair assessment to assume just because a candidate has spent their entire professional career defending the rights of the accused that they would be unable to be sympathetic or protective of the rights of survivors." The role of a judge, she said, is to be fair, impartial, and clearly hear and listen to all parties "in order to provide fair rulings" under the law.
Chen Kercher insists she has the necessary experience with domestic violence and sexual assault cases as well as other areas of criminal law, noting that defendants in CCL4 "are often charged with more than one type of crime." (Before her appointment, Malhotra spent two decades working with domestic violence survivors, most recently as chief of the Travis County district attorney's Family Violence Division.)
In addition, Chen Kercher told the Chronicle she too is a survivor. "At a young age, I was touched inappropriately by an extended family member," she said, providing limited details to keep the topic from becoming a focal point of her campaign. Her experience, she said, ensures she'll be compassionate to survivors. "Given my personal and learned experiences, I believe I do have the perspective to be able to preside over this court in order to have fair and just outcomes." (According to Brass, Malhotra has begun to share her own history with domestic violence growing up.)
The End of the Story?
Samantha was 25 when the alleged rape took place and turned 29 the day after the defendant was acquitted. She's trying to move on with her life, but her experience in the courtroom remains a sore spot.
On April 15, before speaking to the Chronicle, Samantha reached out to Chen Kercher to ask how she would handle sexual assault cases in her court and if they could talk. "She read it and she never wrote me back," a screen shot confirmed. Samantha continued, "If you want to be a public figure, speak to the public about their concerns. Talk to them about it."
The prosecutors say Samantha's case – one of few rape cases to proceed to prosecution in Travis County (a longstanding concern for advocates, as the Chronicle has reported) – "could serve as the poster child for how difficult sexual assaults can be to try to a jury." As Rountree and Hernandez explained, "In this case, we had a cooperative victim, significant evidence supporting her immediate outcry, and DNA evidence contradicting the defendant's statements to police. Despite this, the jury found the defendant not guilty."
Samantha hopes that "we can start understanding how these things happen because, oh my goodness, I hope nobody has to live through what I did. ... I don't think [Chen Kercher] has the ethics, morals, or competence to do this job well."
Chen Kercher told the Chronicle that while CCL4 doesn't hear "any sexual assault criminal cases," she and her campaign consultant decided against responding to Samantha "in order to avoid any legal repercussions or the appearance of any ethical improprieties," since the case has been expunged.