*****
So how was McCain convicted of assaulting Jennifer without any evidence other than her statements to police?
Because he agreed to it.
McCain showed up to court on February 16, 1999, expecting no major decisions about his case. At this point, the indictment against him listed four counts of sexual assault, but his attorney at the time, John Linebarger, told McCain that a trial was at least two months away — plenty of time to prepare and to fight the charges.
Then Tarrant County prosecutors added a fifth count of aggravated assault with a deadly weapon. It was handwritten onto the indictment because it was never presented to the grand jury. Linebarger suddenly told McCain that the trial was going to start the following day but that he would stay up all night researching to be ready.
The trial never happened.
Tarrant County prosecutors Leticia Martinez and Ben Leonard, Judge Sharen Wilson, and Linebarger agreed to present McCain with a plea deal: All of the sexual assault charges will disappear if he pleads guilty to aggravated assault with a deadly weapon.
What weapon, exactly?
In her statements to police, Jennifer said that McCain put a gun to her head. She said he threatened to kill her and then made her put the weapon in her mouth on the same night that he raped her.
There is nothing to suggest prosecutors had any evidence of this other than Jennifer’s statements, which had been discredited by her own family and which conflicted with McCain’s alibi. In the initial indictment and plea deal, no specific weapon is mentioned. Prosecutors never make it clear what gun, exactly, McCain allegedly used in the crime.
Martinez and Leonard both declined to comment for this story.
But even if McCain proceeded to trial, there was a good chance that he could still be convicted based solely on Jennifer’s statement, partly because accurate physical evidence has become a rarity in rape cases. Over the last 10 to 15 years, it’s become clear that medical examinations of rape victims are often unreliable in determining whether a sexual assault actually happened, said Mike Ware, executive director of the Innocence Project of Texas, a nonprofit that provides legal assistance to low-income Texans who were wrongfully convicted.
That means that the vast majority of alleged sexual assault cases of children now have no physical evidence, Ware said. Most of the time, prosecutors ask potential jurors if they feel they could convict someone based solely on the testimony of one person. If they can’t, he says, they are struck from the jury pool. With the testimony of one witness — even if that witness is a child who nobody believes — a conviction can stand, Ware said.
“When someone is accused of sexual assault of a child, there’s a substantial percentage of jurors that are going to believe the accusations are true no matter what,” Ware said.
Prosecutors, he went on, “almost make it look like no evidence is evidence of sexual assault, because no evidence is now the case in most known sexual assaults.”
So prosecutors offered McCain a deal: We’ll abandon all four of the sexual assault charges if you plead guilty to aggravated assault with a deadly weapon.
What happened next is a matter of contention, even between McCain and his own attorney. Linebarger told me in an interview that he doesn’t remember whether he advised McCain to take the plea deal or not. But at that point, prosecutors were trying to convict McCain of an assault without naming a motive, a weapon, or even a place where the crime could have reasonably happened.
Eventually, McCain signed the plea deal, a document that said he was pleading guilty to assaulting Jennifer in exchange for six years of probation.
He has claimed ever since that he didn’t understand what he was signing, that Linebarger didn’t adequately inform him of his rights.
Though Linebarger denies any wrongdoing, he later said in a June 1999 affidavit that amending the indictment in the courtroom that way was “very unusual.”
“This is the only time I have ever participated in proceedings involving an attempt to amend an indictment to add a new and different offense,” he later said in an affidavit.
During a post-conviction hearing a year later, McCain asked for a new trial. His attorney at that time, Ward Casey, argued that the court had illegally changed the indictment.
“What we’ve got here is … an indictment and somebody took a ballpoint pen and added some other language on the bottom and called it Count Five, and some other folks initialed it, but they didn’t follow any of the procedures that’s set out in the Code of Criminal Procedure for amending the indictment,” Casey said in his closing arguments to the judge. “I want the court to know that we’re certainly not claiming Ben Leonard or Lettie Martinez or anybody here actually tried to mislead anybody, but it just kind of worked out that way.”
It may not matter what happened in the courtroom that day.
More than a few men exonerated from rape convictions after years in prison pled guilty in plea bargains. For the layman, it’s difficult to understand how an innocent person could plead guilty. Even McCain’s own family members still say they are baffled by it.
But for Tiffany Dowling, the head of the Actual Innocence Clinic at the University of Texas, it makes perfect sense.
“It happens all the time,” Dowling said. “They’re faced with this choice: plead guilty and go home to your family and just be on probation or go to trial and risk 20 years in prison if they’re convicted. People just do a kind of a risk assessment, and they take the least risky path.”
Whatever the reason McCain signed the plea deal, he says it was a mistake he has never stopped trying to correct.
The consequences have never stopped following him.
*****
This is where things get really messy.
Less than a month after the plea deal, McCain took two teenage girls to a Fort Worth pool hall called Rusty’s Billiards.
Though McCain never committed a sex crime, his probation agreement clearly stated that he was prohibited from contact with minors.
One of them was a 17-year-old friend of his family named Tina Wright (no relation to Jennifer), who referred to McCain’s father as “Pops” and lived a few blocks from the McCain family home, which she frequently visited.
The other girl was Rita Ray, a friend of Tina’s who had tagged along. The two girls were also friends of Jennifer’s, and so they knew McCain well. Before the allegations, he would often give rides to them and their boyfriends when they needed to go somewhere, McCain said.
But Rita was 16, so just being in her company violated his probation.
After leaving the pool hall, McCain drove them to the house of Tina’s boyfriend, David Hood. The two girls later told police in their March 1999 affidavits that as soon as Hood and one of his friends saw McCain sitting in the car with them, the two men yanked him out and beat him severely, even stomping his head against the concrete driveway.
With the help of a neighbor, the two terrified girls dragged an unconscious McCain back into the car and attempted to drive him to the hospital. They were soon pulled over by police, who found McCain unconscious in the backseat. The officers called an ambulance to take McCain to the hospital, where he would not regain consciousness until the following day.
The beating had left him with multiple lacerations to his face, a fracture in his neck, and eyes so swollen that nurses couldn’t remove his contacts.
For Greg’s younger brother, Jason, the episode was a clear example of the other side of this story: Greg’s own culpability in what happened to him. Jason has never believed that Greg was guilty of committing a crime, certainly not sexual assault. But he also said Greg had clearly made a “judgment error.”
“Being a grown adult and being in the company of minors is putting yourself in a bad situation,” Jason said in an interview. “I’ve got a daughter that’s a sophomore in high school. She’s got friends that spend the night. I’m not going to hang out with them because I know that’s not a good idea. … It’s sad that’s the society we live in, but you have to be careful of the situations you put yourself in.”
Jason wasn’t wrong, as his brother would soon discover.
*****
The reaction from Tarrant County prosecutors was swift.
Martinez and Leonard had McCain arrested and arranged for a hearing to revoke his probation. When McCain had pled guilty to the aggravated assault charge a month earlier, the prosecutors had offered him probation, likely because of the flimsy evidence and his lack of any previous convictions.
That wasn’t going to happen this time.
Hood faced a misdemeanor charge of assault for beating McCain, but prosecutors also wanted him to testify in the court hearing to revoke McCain’s probation. Leonard asked Hood’s defense attorney for a meeting with the defendant, he said in a July 1999 court hearing on whether to grant McCain a new trial. Leonard convinced Hood to testify against McCain with the promise that Hood’s testimony would not be used against him. Leonard denied any other promise to Hood about dismissing the assault charge in exchange for his testimony.
Then, two days after Hood testified in the May 5, 1999, hearing that sent McCain to prison, Leonard dismissed Hood’s case. During the June hearing, Leonard called that decision “prosecutorial discretion.”
Even Judge Wilson questioned this arrangement, in the same hearing.
“This troubles me, you, know?” she said. “It just troubles me. … On the face of it, there appeared to be no deals, but two days later [Hood’s] case is dismissed. I don’t presume to think that they made a deal, but I do figure that it was in the back of their minds that they might be dismissing [Hood’s] case when they put him on the stand.”
The two girls had earlier given statements to police about Hood’s assault on McCain, not understanding the implications.
Once Tina and Rita realized that McCain would be sent to prison if they cooperated with prosecutors by testifying against him in court, they tried to recant their written statements, according to separate 2004 affidavits from Leonard and Martinez and affidavits from Norma McCain and Tina.
Tina tried to change her story. She said she and Rita were in a separate car from McCain and that they’d never been at the pool hall with him. Rita tried to avoid showing up to court to testify, but she was forcibly brought back.
Ultimately, Leonard and Martinez convinced the girls to testify, though only Tina took the stand, primarily for prosecutors to establish that McCain had indeed been in the car with Rita.
The girls later apologized to the McCain family for what happened. They said they didn’t want to testify against Greg but that they were forced to.
