wrongful conviction, wrongfully convicted, false
conviction, miscarriage of justice, false
identification, kevin thornton, sex offender, rape,
San Diego, reasonable doubt, Fifth Amendment,
rape of an intoxicated person, lifetime sex offender
registration, jury nullification, attorney misconduct,
presumed innocent, justice for wrongly accused
conviction, miscarriage of justice, false
identification, kevin thornton, sex offender, rape,
San Diego, reasonable doubt, Fifth Amendment,
rape of an intoxicated person, lifetime sex offender
registration, jury nullification, attorney misconduct,
presumed innocent, justice for wrongly accused
My name is Kevin M. Thornton. I was 18 years old when I was convicted on May 13,
2002, of one count of Rape of an Intoxicated Person, in violation of California Penal
Code § 261 (a)(3).
The rape occurred September 7, 2001. There has never been any dispute that Sara
B., the victim, was extremely intoxicated that night, and that she was raped. There
has never been any dispute that I was present at the scene of the crime. I, however,
did not commit rape. My voice and my side of the story have never been heard as a
matter of public record until my petition for Writ of Habeas Corpus was filed on
December 5, 2006 (and re-filed in Appeals Court February 9, 2007).
Early in the afternoon around 3 p.m, On September 7, 2001, Pierre Gilbert and Lofton
Rigby came to pick me up from my home to go hang out and smoke marijuana.
Looking back now, I should have stayed at home that night. After deciding to meet
Heather Ross, Sara B., and Heather Ross’s friend, Mike; Gilbert, Rigby and I met
Ross, Sara B., and Mike at Abraxas High School at around 8 p.m. After meeting up at
Abraxas High school, we all went to the local In-N-Out burger where other teens
hang out and drink before parties. The emotion was high, school was out for the
week and everyone wanted to get drunk and party.
I knew of a party that was going on at an apartment complex pool off of
Sabre Springs Parkway. Ross, Sara B. and Mike wanted to
go, so they drove in Mike’s car, while Rigby and I drove in Gilbert’s
car. We drove to the pool party at the apartment complex in Saber Springs
about 9 p.m. There were around 30 teenagers drinking beer and hard liquor, and
some of them were smoking marijuana or dropping ecstasy. I observed Sara B. and
Ross drinking Bacardi 151 straight out of the bottle, and then pouring about four (4)
shots of the liquor into a water bottle with some Dr. Pepper.
I remember thinking to myself as Ross and Sara B. were pouring the Bacardi 151
into the water bottle, “I hope they know what they are drinking, because that stuff is
fire.” They looked like they knew what they were doing, so I didn’t say anything to
them. Gilbert and Rigby poured the Bacardi 151 into water bottles as well. I didn’t
drink the Bacardi 151 because I don’t drink hard liquor.
I remember looking around the pool house and seeing a couple of teenagers drinking
from a keg that was in the corner, and watching Sara B. running around chasing
people around the pool. It was pretty obvious that she was starting to feel the affects
of the liquor she had just poured. It struck me how low her tolerance for alcohol
was, despite her size (probably about 170 lbs.).
I was only drinking beer from the keg and smoking marijuana. I remember talking in
a group with Rigby, Gilbert, Ross, Mike, and Sara B. when I cracked a joke about
Sara B. and she started chasing me around the pool. Sara B. and I were laughing as
we were running. She and I knew each other from school, and even though we were
not close friends, I knew she who she was. I ran outside of the pool house gate to
get away from her as she continued to chase me outside. As I was looking back at
her chasing me, and as we were laughing, I tripped over a curb and almost fell. I
started jumping in the air in pain; Sara B. stopped chasing me and asked me if I was
ok. I was throbbing from my big toe. I didn’t know at the time, but later I went to the
doctor later and realized that I had broken my big toe that night. For the rest of the
night I limped around.
I remember Gilbert, and Ross asking me what had happened and asked
if I was ok. I told them what had happened. It really hurt, but instead of going
home I drank more beer and smoked more marijuana to dull the pain I was in.
I got a call from another friend, whose name I do not recall, telling me about another
party at 13301 Summit Circle in Poway. We all agreed to go, but Sara was so drunk
by this point, she and Ross leaned on each other for support.
We arrived at the party in Poway around 10 p.m., with Gilbert, Rigby, Sara B., Ross
and Mike. When we got there, we were greeted by Gregory Serras, who we assumed
was the owner of the house, and he said, “Drinks are in the kitchen and the keg’s in
the back yard.” We thanked him and continued throughout the house. There were
approx. 50 teenagers drinking, with two adults “supervising” the whole thing. We all
walked into the backyard where the back yard wasn’t that big but there was a table
full of munchies, (chips, cookies, etc).
Gilbert, Rigby, and I were in the backyard standing in a circle, when I observed Sara
B. grabbing at least four beers in a 30-minute time period. I didn’t think anything of it
because I figured that was how she drank all the time. This was my first time
hanging out with her outside of school. I remember a lot of white guys giving her
beer after beer of Budweiser or Bud light. At least three different guys gave Sara B.
cans of beer after she had gotten the four from the cooler earlier. I didn’t see much of
Ross or Mike at that party.
At approx. 11:30 p.m., Sara was visibly drunk and making out with a boy we both
went to school with named Joe Bell. Witnesses stated under oath during my trial that
she saw her friend throughout the night making out with Joe Bell.
Then Ross and Mike decided to leave. Ross said Sara didn't want to leave yet, and
she wanted to know if I would give her a ride home after the party. I didn’t know
where Sara lived, and also I wasn’t driving. I told Ross I would have to ask Gilbert
because he was the one who was driving. I asked Gilbert if he could give Sara a
ride, and Gilbert agreed. We stayed at the party for approximately another hour.
While Gilbert, Rigby, Sara, and I were walking back to the car, I observed Gilbert
holding Sara B. up. At this point, she was extremely drunk and very flirtatious with
Gilbert. Sara and Gilbert started making out in the middle of the street, so I told
Gilbert to give me his keys so Rigby and I could go and smoke marijuana. Gilbert
and Sara B. had just met three hours prior. Lofton and I got into the back seat and
started smoking marijuana while Gilbert and Sara were kissing outside of the car.
After about three minutes, Gilbert and Sara got into the car’s front seat.
As Pierre was starting up the car, Sara opened the passenger side door and started
vomiting. Sara was vomiting for about 10 minutes. Since I was the only one who
knew her, Gilbert told Sara to get in the back seat with me so I could take care of her.
Sara came in the backseat where Sara and I started kissing briefly (for approx. one
minute), and I sucked her breast. This was the only physical contact that I had with
the victim the entire night. I remember thinking to myself, why did we start kissing
after she had just thrown up? I remember thinking that was disgusting,
that’s the reason I stopped kissing her and started sucking her
breast. Gilbert and Rigby said that was gross of me to kiss her
after she had just thrown up. I felt embarrassed of what I had
just done because they were both making fun of me.
After approx. one minute of sucking Sara B.’s breast, she
passed out with her head on my lap. I was trying to wake Sara
up so she could tell me where she lived, and we could go home, but she would not
wake up. I remember thinking that I didn’t know what to do with her, because she
wouldn’t wake up and I had to get up and work in a couple hours.
Meanwhile, in the front seat I overheard Pierre talking to Lofton about condoms. I
asked them what were they talking about, they both ignored me and told me to “Stop
acting like a bitch, and take care of her.”
I was extremely drunk at that time, as well as high on marijuana. I did not believe at
first that anything bad would happen to Sara. Gilbert, Rigby, and I had just started
hanging out than two months prior to this evening. I did not know Gilbert or Rigby
very well, but I wouldn’t have gotten in the car with them, and wouldn’t have told
Ross we would see Sara home, if I knew they wanted to rape her. Hindsight is
ALWAYS 20/20.
I told Gilbert that I wanted to clean Sara up and get her some water, so Pierre drove
to a Shell station in Carmel Mountain. Rigby and I got out of the car, and I bought
Sara a bottle of water and got some napkins. While I was paying for the bottle of
water, I did not see Rigby go into the back of the store but, when we got outside of
the store, I discovered that Rigby had stolen two beers, a sandwich, and a bottle of
Nyquil.
As I was walking out of the gas station store, I saw Sara sticking her head out of the
car window, and vomiting more. I got in the car and told Sara to start drinking the
capfuls of water I was giving her. I cleaned the vomit off of her face and asked her
where she lived; she just looked at me and then passed out again.
I heard Rigby and Gilbert say something again about condoms. Gilbert asked me
what I wanted to do with her. I told Gilbert we needed to wake her up and get her
sober so we can find out where she lives and take her home. She still didn’t move.
Gilbert said he needed to go home really fast and get something. Gilbert got out and
went in his house, while Rigby was drinking the beer and eating the sandwich he
had stolen from the gas station, and we started drinking the Nyquil he had stolen.
About five minutes later, Gilbert returned and threw condoms on our laps.
I was still extremely drunk. I remember that I threw the condom on the floor of Gilbert’
s car and told Gilbert and Rigby that it was wrong, and they cannot do anything to
her. Gilbert and Rigby again ignored me and continued to talk to each other. I was
extremely drunk, as well as high from the marijuana and extremely drowsy from the
Nyquil.
Gilbert started driving again, and took us to 12345 World Trade Drive in San Diego,
an old fire station. It was pitch black behind the building, and only a few lights, far
away, were visible. Gilbert parked backwards and the three of us continued drinking
the bottle of Nyquil, while Gilbert opened the beer that Rigby had stolen. I figured
Gilbert had been here before because he went right to 12345 World Trade Drive
where the fire station was located. (Interestingly, today, that old fire station has 24-
hour surveillance cameras surrounding it. I wonder how different my life would have
turned out if they had been there then.)
I assumed that Gilbert was accustomed to driving to weird spots and parking, and
listening to music to talk and smoke marijuana. I laid my head back and started
listening to music and started getting really tired from the Nyquil, the alcohol, and
marijuana.
After we finished the bottle of Nyquil, Gilbert told Rigby that it was time to “do the
damn thing.” I presumed that this meant to start having sex with Sara. Rigby got out
of the car and opened the rear car door, where Sara’s legs were, and he took off her
underwear. Rigby had put on a condom and started to have sex with Sara. She was
passed out, and I was drifting in and out – I was too drunk to stop him from what he
was doing. I was in and out of consciousness, only waking up occasionally
because of my throbbing and broken toe.
I was very drunk, but I remember that I told Rigby to stop having sex with her. I don’t
think that he even comprehended what I was saying; he just kept going. I was
drifting in and out and all I could feel was Sara’s head hitting my thigh as the car
rocked back and forth. I remember feeling her head bouncing on my lap, and then
passing out again.
I woke up and I think it was about 10 minutes later; Rigby was done and had gotten
back in the front seat. Gilbert was fingering and touching Sara’s breasts. Gilbert told
me it was my turn. I told him “No way, I have to get her up and get her clothes on
because I have to work in a couple hours.” I got up from the back seat (behind the
driver’s seat). Sara was still passed out in the back seat.
I walked around to the back passenger door where Rigby had just been standing,
while he was raping Sara, and I opened the door. I started trying to put her pants
back on, and trying to wake her up. I think Sara was starting to wake up. I was
having a hard time getting Sara’s jeans on, so I asked Rigby and Gilbert to help me,
but they both refused to help me and both told me that she was my friend and I could
do it myself. After struggling for a couple of minutes I got her jeans back on.
I looked up and Sara had woken up and was looking right at me with a very scared
look on her face. She started crying and pushed me out of the way, then started
walking to an open door that was across the parking lot from us. I yelled to her that I
was trying to help her. Sara B. was visibly stumbling as she walked across the
parking lot.
She kept walking, so Gilbert yelled at me to get in the car and he
started to drive. I noticed that Sara had left her purse in Gilbert’s car, so I
told Gilbert, and he told me to set it outside. Rigby said,” Your girl
better not say shit, or that’s your ass.” Gilbert agreed with him. And
we went home. I was afraid for my life of what might happen to my
family or me if Sara did anything to Lofton. I was still drunk and did not
comprehend what had just happened.
Ten days after the incident, on September 18, 2001, I was contacted by phone by
Detective Sharon McFalls, who introduced herself and asked me if I had time to
come to her office downtown and answer a couple of questions about a girl who
was claiming that I raped her. I agreed and told her I would have to call my mother at
work because she would have to pick me up and take me to the station.
McFalls agreed and we set a time to meet that same day. My mother and I arrived
about an hour and a half later. Detective McFalls and I went into a blue room, with
only a table and a camera in the room.
I had turned 18 less than a month before, and the detective knew this. She even
joked that I was “just a baby,” and commended me for graduating early and enlisting
in the Army to serve my country. (The terrorist attacks of September 11 happened
just days after the rape took place, and I had enlisted in the Army. I was almost
guaranteed to serve a heavy combat division in Iraq.)
I was not allowed to have my mother present and I was not advised of my right to
have an attorney. I was told I could refuse to answer any questions, but the
detective also suggested that if I refused to answer, it wouldn’t look good.
Detective McFalls started asking me questions about my relationship with Sara B. I
told her I only knew Sara through school and that was it. Then McFalls asked me
about the incident that had occurred on September 7 and 8.
I explained what had happened and Detective McFalls told me she thought I had
raped the victim, and said she believed that I was lying. I was so shocked by her
accusation that I raped Sara B., and that she didn’t believe me. I was hurt because I
knew who did it and was telling the truth. Detective Mc Falls would not listen to a
word I had said, she just kept on saying “Your lying, I think you did it.” I repeatedly
told Detective McFalls that I had not had sexual intercourse with Sara and that my
only contact with her was kissing and sucking her breasts.
Throughout the entire interview, I did not refuse to answer any questions or leave,
as was my right since I was not under arrest. I just wanted the situation to be over.
Looking back now, I would have insisted on having an attorney present to make
sure my rights were not violated. I was 18 years old, so I could not ask for my parent
to be present, and I was naive, and I assumed that since I was innocent, I would be
able to clear up the matter and go home.
Then Detective McFalls asked me if she could take a swab of my saliva, so she
could get my DNA. I told her “Sure, I just want my name cleared.” McFalls took my
swab and told me she would be right back, she said she had to give my saliva to the
lab so they could tell her the results that day. I told her that she wouldn’t find any of
my DNA in Sara’s vagina.
After leaving me in the room by myself, she returned and started telling me that it
was illegal to have sex if you were under 18, and she told me she believed I had
raped Sara B. She told me that because I got rid of Sara B.’s purse, I was guilty of
something. We talked about how I believed that when I fingered her, I thought it was
consensual and that she was coherent. But I did not rape her and I did not touch her
while she was passed out.
Approx. 22 minutes after she left with my DNA swab, the detective returned with a
white sheet in her hand that had a diagram of a vagina and two hand-written arrows
coming from the diagram with the words ”Thornton findings.” She told me that my
DNA was found in Sara B.’s vagina and that I was lying about my sexual contact with
her. I denied and it and she insisted, “It’s here,” and “Then how did it show up?” She
asked me if I was a medical student or understood medical terminology, and I said
“no,” – I barely recognized the diagram of a vagina. She even said “I’m not making it
up, I‘m not trying to frame you ... Maybe you thought it was consensual ... Why did we
find your DNA on her?”
I was too naive and young to even know that it takes weeks -- not minutes -- for a
DNA test.
Detective McFalls asked me if I knew what this paper was she had just placed in
front of me, and I said yes. I knew what the diagram was, but I knew that it could not
be right, and I told Detective McFalls that there was no way this was true. She kept
pressuring me to admit I had raped Sara B. She told me she didn’t believe me when I
told her what happened.
I was 18 years old and had no idea of the time it took to get DNA test results. Later I
discovered that it took at least six weeks for definitive results, and that no seminal
DNA was found in the victim at all. My saliva DNA was found on her breasts, just
like I had told McFalls -- that I made out with Sara and kissed her breasts, but never
raped her.
I was trying to make sense of what Detective McFalls had presented to me, because
I knew I had not raped Sara that night. Detective McFalls kept pressuring me, and
wouldn’t get off my back. She asked me if I even touched her with my penis, and
maybe that was it, because “it didn’t take a lot.” She pointed at the diagram and said
“you were there, its right there.”
So I told her that I “may” have brushed my penis against Sara when we were fooling
around earlier that night. I didn’t know how my DNA could have ended up on Sara. Of
course, later it was proven that my DNA was not in her vagina.
I thought that if I explained that I may have touched her but I didn’t have sex with
her, I wouldn’t be in trouble. I should have told the truth: that my penis never touched
her. As soon as I lied to the detective, I knew I had screwed up. I did not rape Sara
B. This was later proven by the real DNA results.
I know I was drunk that night. I know I was a kid and I made some bad decisions.
But I also know I never raped or had sex with Sara. I never used the condom that
Gilbert provided, and no semen was found inside the victim. One used condom was
found at the scene, and that was Rigby's.
A couple of weeks after my interview with Detective McFalls, on November 9, 2001,
at 10:55 p.m., I was attacked by Sara B. in the parking lot of a local Vons. I was with
my friend Efran Taghavi, at 13255 Black Mountain Road in Rancho Penasquitos. I
was in Taghavi’s car waiting for him to come out of the store, and I decided to get
out of the car because I wanted to get some fresh air, when out of the corner of my
eye I saw a woman coming toward me and then she started hitting me.
I realized that the woman who was hitting me was Sara B. She punched me three
times in the face and screamed “You raped me!” She had about eight or nine people
with her, all males. I pushed her arm off of me to stop the onslaught of punches she
was throwing. Then all eight men rushed toward me.
I yelled at Sara and told her to stop hitting me, and that I didn’t rape her. I told her that
she had her story wrong, and that I was trying to help her, not hurt her. She didn’t
listen to me. I was so mad that she had attacked me, that I hit a car window. It turned
out later that the car belonged to Deanna Engstron, an employee at the Vons where
the incident took place. I later paid for the damages to her car.
There were many witnesses who saw what occurred, but according
to the statement of Stephen Durbin, he had just arrived to work at the
Vons when he saw a female (later identified as Sara B.) approach and
hit a black male (myself). Officer Hoffman came shortly after the
incident and called a paramedic because I was bleeding profusely from my arm and
mouth. I also had to go to the Emergency Room and get stitches in my arm.
This was only the beginning of the nightmare for me.
The next morning November 10, 2001, I left Detective McFalls a message and asked
her to call me back. Detective McFalls never called me back. I called Detective
McFalls again on November 12, 2001, and spoke with her, and told her what had
aspired on November 9.
Detective Mc Falls laughed at me and told me “Oh, since she has a rape case on
you now you want to get something on her, I don’t think so.” Detective McFalls
treated me like I was a criminal and a rapist, like I was already guilty. She treated
me like I was trying to harass Sara, when all along I wanted to help her, and I never
instigated the attack. Since, Sara B., Rigby, and I went to the same school, I was told
by Detective McFalls to leave Sara B. alone after she attacked me November 9,
2001.
I always wanted to help Sara, and I don't hold it against her that she mis-identified
me as her rapist. I know she was confused that night, and I saw for myself how
extremely drunk she was. I feel for her because she was raped that night, but I was
not the one who hurt her.
It was all over school that Sara B. had a rape case against me, and that she had
attacked me. I felt like killing myself because everyone who was my friend started
acting very funny to me. People would look at me and say things like “Did you really
do it, Kevin?” I told them they had their story wrong.
I felt like I had a big scarlet letter on my back. That feeling hasn't gone away in the
years that have passed since.
I felt guilty before being proven innocent -- even before I was arrested and charged.
Sara B. had spread the word as far as my old high school (Rancho Bernardo High
School), but I didn’t know it yet. I knew I was innocent. It got so bad around school
had to go into home schooling which I graduated Six months early to get away from
the turmoil that was following me. My name was ruined.
People started calling me a rapist, guys wanted to jump me because they thought I
was a rapist. Death threats followed me everywhere I went. I was so depressed
some days not wanting to leave my house because I couldn’t take people
threatening to do harm to me, and staring at me with hate in their eyes. I was called
countless names that African-American men should never have to hear in their
lifetime. And there was still a trial to come.
In the eyes of society in my town I was guilty, No matter
what! I was hurt my own best friends could turn their backs
on me so easy. I had always lived for my friends,and I would
have done anything for them, I thought I could count on the
same thing back, but I had no one left for support.
On December 28, I was arrested for the rape of Sara B.
I was shocked, scared and in disbelief and embarrassed
because I was arrested in front of dozens of people from my school and my
community. I couldn't believe it. I cried the whole way to downtown jail.
I was booked and served two days in downtown San Diego jail before bailing out on
$50,000 bond. My mother posted the $ 50,000 bail to get me out of jail. It was so hard
on her to come up with the money, she had to borrow from a few different friends,
and take out loans just to get me out of jail. It put her in a huge hardship; she
shouldn’t have had to pay for. She’s still paying off that money she borrowed back
then, today.
My twin sister Donna was going to Abraxas while I was arrested and all of the
investigations and accusations of rape. She told me some people would come up to
her and ask her if I had raped Sara B. Donna told me she got so many people talking
and looking at her with hate in their eyes that she had to go into home-schooling as
well. She said she was scared for her life when she was going to Abraxas because
Sara B. started going back to school after I got arrested and went into home school.
After being released from jail on December 30, 2001, I returned to Abraxas High
School and graduated six months early (as I had planned to do before the rape took
place) on January 4, 2002.
Before going through this case, I had enlisted in the Army and was awaiting
deployment to Fort Sill, Oklahoma, and then to my job training at Fort Bliss, near El
Paso, Texas. My entire future, which I had worked so hard to plan for and prepare
for, was about to be ruined. Still, I had faith in the justice system.
On January 2, 2002, I had my first court appearance, which was my arraignment.
Since I didn’t have the money to get an attorney, the court’s assigned me a Public
Defender. His name was Edward John Peckham. Although the court assigned him to
me I did not meet Peckham that day in court because he was busy doing other cases.
Peckham seemed very trusting and professional in our first meeting. I had never
been in any trouble whatsoever before in my life before this, and my family and I put
all of our trust in Peckham, and for good reason, he said. He asked me a lot of
questions about the event and the details of what had happened. I at the time told
him that someone had raped her; I just couldn’t say who did it.
They both told me I needed to tell them what happened, but I just couldn’t at first,
because I was afraid to say anything against Rigby and Gilbert. All I could remember
was what they both said to me when they were done with Sara and she ran away;
“Your girl better not say anything or that’s your ass.” I felt terrible covering for that
rapist and his friend, but I was scared that something would happen to me. After my
lawyer explained the trouble that I was in, I changed my mind.
After being yelled at -- by Peckham and my mother -- about covering for Rigby and
Gilbert, I finally told them what had really happened that night, and wrote out by hand
my account of the events.
A month after our first meeting, I met with Edward Peckham by myself. This time our
meeting was a lot different because Peckham was verbally abusive to me.
Peckham said, “That’s bullshit, you’re lying, Kevin tell me what really happened!”,
and shouting questions at me like I was guilty. He asked me to tell him what
happened that night and I did, like I had done a month before and hand written as
well.
After telling Peckham what I recalled that night, he told me I was lying and that he
knew that I raped Sara. I repeated again that I had no sexual intercourse with Sara
B. I felt so hurt that my OWN attorney who was supposed to be on my side didn’t
believe me. I figured that if my lawyer didn’t believe me, no one else would, and I
lost all hope from that point on.
He then asked me about the statement I made to Detective
McFalls, and I told him that my comment wasn’t true, and that
Detective McFalls had lied to me by hand writing the “Thornton
Findings” on the medical sheet and told me that she had found
my DNA on Sara’s vagina and pressured me to say that. I told
Peckham that I knew I had messed up and I needed him to help
me.
He said that would be the thing that could hurt us in the future, and if I took the stand,
the prosecution would tear me apart. So, Peckham told me that the prosecution didn’
t have the evidence to find me guilty so he told me unequivocally not to take the
stand.
I had never been in trouble, and I had no idea what I was doing. So I took the advice
of my lawyer, and hoped he knew what he was doing. After that meeting, Peckham
and I met when I had my second court appearance.
Peckham again showed up late, almost missing my appearance before the judge.
Weeks had gone by again without hearing from him. We never kept in touch on a
regular basis. He never called me prior to the trial – I always called him to find out
where to be and what to do.
Peckham had interviewed Gilbert, and Gilbert told Peckham that he knew I did not
have sex with Sara, and that he would testify on my behalf. Pierre was the only
person that did not get charged with the crime because Sara said he didn’t rape her.
As soon as I got that news, I just knew I was a free man. I knew Gilbert wouldn’t let
me down. He knew what happened, so at the time, I just knew he would tell the truth
and set his “friend” free.
Gilbert even promised my mom that he would tell the truth on the stand and set her
son free; he even went as far as to promise me that he would take the stand and tell
the truth. Gilbert was my star witness and I needed him to set the record straight so I
could go on and serve my country in the United States Army.
Eight months after the initial incident, on April 26, 2002, Rigby and I had to stand trial
for the rape of Sara Baca. Rigby and I were charged with two charges: 1) Rape of an
unconscious person, and 2) Rape of an intoxicated person.
During the entire trial, I was so scared and confused. I heard a lot of big words and a
jury just staring at me, making me feel guilty even though I knew I wasn’t. Peckham
continued to tell me not to worry, and that everything would be fine. I didn’t know
how to not worry, because I knew we didn’t have any witnesses at the time, and my
lawyer thought I was guilty.
Attorney Deborah R. Carson, Rigby's attorney, made a motion to sever Rigby’s
robbery case from his rape case – apparently there was a robbery after the rape took
place involving Lofton Rigby – which was successful. I learned later, and was
shocked, that the judge did not sever my case from his, and I still feel that if I had
not been forced to stand trial with Rigby, I would not be in this present situation.
The judge asked Peckham if he had any stand on the issue and Peckham sat in his
chair and said “No”. I sat there not knowing anything about what was going on in the
court room. Peckham would just tell me when to say “Yes” or “No” to the Judge.
Peckham never explained anything to my mother nor to me (whose life was on the
line).
I always asked Peckham what something meant and he would tell me he will
explain it after the judge got done and he usually never paid me any mind after the
judge was done speaking. So, there I sat, with
my life in a the hands of a man who not only didn’t
want to prove I wasn’t guilty but, now didn’t want
to communicate with me either. I heard several
statements Sara B. and Rigby said that set me
free from the case, I told Peckham to point to the
statement that was wrong and he would tell me to
write it down and he would never ask what I had
written down to disprove the witness’s credibility.
Peckham wanted to make it appear to me that he had everything under control He
even went as far as to even say, ”You have nothing to worry about, you are the flea
on the dog’s back”. For years I’ve tried to figure out what that meant.
Peckham hardly got out of his seat until the second week of the trial when the
witnesses came on the stand. Peckham didn’t even know how much my bail was
(find out the page of this). When it was our turn to present a witness, I came in that
morning (find the morning) to Peckham telling me that my star witness was pleading
the fifth on All questions, because the DA was going to tie Pierre to the crime and
charge him for providing condoms and driving to a secluded place.
I was so devastated because Gilbert not only sexually assaulted Sara by fingering
her while she was passed out, but he also gave Rigby a condom to rape Sara, and
drove to a place where no one would see what was going on. But, by pleading the
Fifth, he was sending an innocent man down the river for a crime he knew I never
committed.
When Rigby took the stand on May 6, 2002, he lied about most everything except
where the party took place. Rigby told Peckham that I invited him into the backseat
so that he could have sex with Sara which was not true at all (page 427, Line 21-
25). Peckham never made it clear to the jury that Lofton was lying.
Shortly after Rigby lied his way off the stand, the jury was given their instructions
and went into deliberations. I wasn’t worried when the jury went into deliberations,
because I knew I haven’t committed this crime. Taking the advice of Peckham not to
testify, I was left with no defense.
On May 13, 2002, Peckham called me and told me that the jury had reached a
verdict and he wanted to meet me outside of the courtroom. When I arrived Peckham
was no where in sight. He finally got to the courtroom 30 minutes late.
My mother, my twin sister, Peckham, and I entered the
courtroom. I sat in my seat thinking about what I wanted to do in
the army after the court stuff was done. Judge Kennedy came in
and then the jury came in after him. I couldn’t stand to look at the
jury so I keep my head down the whole time. When Judge
Kennedy asked the jury to hand down the verdicts, I was so
nervous and scared. When the jury found Rigby guilty of rape, my
heart jumped and when they said guilty for me I immediately
broke into tears. The feeling was indescribable -- the verdict
broke my heart. My life's course changed at that moment.
I couldn’t believe this was happening to me. I felt betrayed and
stabbed in the back by Peckham. He told me and my family
everything would be fine. He also told me that I had nothing to
worry about, and that me not testifying wouldn’t hurt me that
much.
He was wrong!
I spent 10 months in jail, was given 4 years of probation and have to register as a
Sex Offender for the rest of my life. I went to George Bailey and Vista. While in jail I
had to fight two gang members that heard about my case and came to fight me. I had
never been so scared in my life when two big black men come up to me and asked
me to come in their cell and asked me about it. I told them the truth and they attacked
me.
Being away from my family was horrible. The jail put me in with the worst of the
worst. I had to defend myself for a crime I never committed. It hurts knowing I didn’t
do the rape and no one wants to hear from a sex offender. After getting through the
worst time in my life I was released on January 3, 2003.
Being released was the best feeling. I had to go report to probation within three days,
and register as a sex offender all in one week; I was hurting because I just wanted
someone to listen to me, to hear my side of the story. Having to register as a sex
offender has been the hardest thing I have gone through thus far. Being that I am a
registered sex offender I have had to go to sex offender counseling, and have a
probation officer watch my every move.
It’s hard to deal with a counselor who after two years of telling her I didn’t commit
the rape, insists that I confess a crime I never committed. Barbara Barrett even told
me that I wouldn’t get off probation until I confessed to the crime. The last four years
have been a complete mess with my life. Since I was released in January 3, 2003, I
cannot find a job to further my life. I have amassed almost $ 20,000 dollars in debt
due to the sole reason of being in locked up.
At one point after not being able to find a job for 6 months, I had to start lying on the
applications because no employer wanted to hire me because I had a rape
conviction on my record. It has been so hard to have to please everyone and not get
anywhere in life. I can’t go to college because colleges don’t want sex offenders on
the campus. I’m a normal person who just wants his life back and make a difference
in this country.
Since being on probation I have been a model citizen and don’t harm anyone. I have
paid all my restitution for Probation and have completed a drug and alcohol program
probation asked me to do. But since I am a registered sex offender and on probation,
I do not have many of the rights I took for granted before.
After having no problems on probation for four years and being an outstanding
citizen in my community and church, I moved from Poway to Escondido on January
31, 2006 because my mother retired and moved to Virginia. I moved in with my twin
sister Donna, her husband, and their two year old son. We all lived under a small
one bed room apartment. I had only planned living there for a couple of months
because my girlfriend and I were getting an apartment at the end of May. I had been
working two jobs which took mostly all of my days and nights. I had registered with
Escondido police department January 31, 2006, the day I moved.
Escondido police started coming to my home immediately to check my residence.
The police would come do the checks in the early afternoon, when they knew normal
people would be at work. They did that several times and then determined I didn’t
live with my twin sister.
So, on May 4, 2006 I was at my fiancée’s home in San Diego when two Escondido
police officers came and arrested me for being at my fiancée’s home. They arrested
me based on staying at her house one night or more, and for having my work clothes
and a razor at her home. My night job was five minutes away from her place, I would
go to her home after I got off of my day time job and take a shower and change into
my work clothes for my night job, and then go to work again.
I had been using my fiancée’s car for about a month or less because my car had
broken down. I have been unjustly imprisoned once again, due to my status as a
“sex offender” I was locked up at the Vista Detention facility for 71 days. My sister
Donna, who was counting on me for partial rent, has been severally financially
affected by some police foaming at the mouth to catch a sex offender. She also
counted on me to watch my nephew.
My fiancée has been affected, emotionally as well as financially,
by my arrest because we planned on moving in together at the
end of May. She was forced to live with friends for almost two
months, waiting for me to return -- and for much of that time, not
knowing if I would go to prison for years. Everyone involved has
been affected by the police’s misconduct.
I’ve been turned down from countless jobs because of my sex
offender status. I just want to be able to walk around San Diego
and not be afraid to be myself or wonder whether my probation
officer is going to put me back into jail. I now know what it must
have felt like to be a slave, because having your freedom taken
away from you, being wrongfully convicted by the justice system,
and having no hope in sight really hurts, and is not right.
I am asking that justice be done and give me my life back, like I
deserve. The Justice system has taken everything away from me and
yet I continue to smile! I just want the truth to finally come out. Even though I
have had a hard life, I would not change anything that I have been through because I
have learned how to be a man and stand on my own two feet. I still have high hopes
for the future.
I believe in the justice system even if the justice system didn’t believe in me, and
know without a shadow of a doubt that upon hearing the true facts of the case I will
be set free of this stigma. I am hopeful that the system will right a wrong and realize
that an innocent man stands before them. It has been a rough four years. I have been
nearly homeless countless times and struggle to find work.
My mother is gone to Virginia which has left me here by myself, which has I feel it is
me against the world. I just want the truth to finally be heard so I may be able to get
on with my life a free man, with no record. Also, I have found love. I never thought a
woman could love me after my rape conviction. I never thought I was capable of
loving a woman after being hurt by this case, but I have.
I plan on getting married in the future and having children, and I don’t want to put
them through the same torment I went through these last five years. I couldn’t take it
if my children or wife were looked at differently because of a misunderstanding of
the law.
2002, of one count of Rape of an Intoxicated Person, in violation of California Penal
Code § 261 (a)(3).
The rape occurred September 7, 2001. There has never been any dispute that Sara
B., the victim, was extremely intoxicated that night, and that she was raped. There
has never been any dispute that I was present at the scene of the crime. I, however,
did not commit rape. My voice and my side of the story have never been heard as a
matter of public record until my petition for Writ of Habeas Corpus was filed on
December 5, 2006 (and re-filed in Appeals Court February 9, 2007).
Early in the afternoon around 3 p.m, On September 7, 2001, Pierre Gilbert and Lofton
Rigby came to pick me up from my home to go hang out and smoke marijuana.
Looking back now, I should have stayed at home that night. After deciding to meet
Heather Ross, Sara B., and Heather Ross’s friend, Mike; Gilbert, Rigby and I met
Ross, Sara B., and Mike at Abraxas High School at around 8 p.m. After meeting up at
Abraxas High school, we all went to the local In-N-Out burger where other teens
hang out and drink before parties. The emotion was high, school was out for the
week and everyone wanted to get drunk and party.
I knew of a party that was going on at an apartment complex pool off of
Sabre Springs Parkway. Ross, Sara B. and Mike wanted to
go, so they drove in Mike’s car, while Rigby and I drove in Gilbert’s
car. We drove to the pool party at the apartment complex in Saber Springs
about 9 p.m. There were around 30 teenagers drinking beer and hard liquor, and
some of them were smoking marijuana or dropping ecstasy. I observed Sara B. and
Ross drinking Bacardi 151 straight out of the bottle, and then pouring about four (4)
shots of the liquor into a water bottle with some Dr. Pepper.
I remember thinking to myself as Ross and Sara B. were pouring the Bacardi 151
into the water bottle, “I hope they know what they are drinking, because that stuff is
fire.” They looked like they knew what they were doing, so I didn’t say anything to
them. Gilbert and Rigby poured the Bacardi 151 into water bottles as well. I didn’t
drink the Bacardi 151 because I don’t drink hard liquor.
I remember looking around the pool house and seeing a couple of teenagers drinking
from a keg that was in the corner, and watching Sara B. running around chasing
people around the pool. It was pretty obvious that she was starting to feel the affects
of the liquor she had just poured. It struck me how low her tolerance for alcohol
was, despite her size (probably about 170 lbs.).
I was only drinking beer from the keg and smoking marijuana. I remember talking in
a group with Rigby, Gilbert, Ross, Mike, and Sara B. when I cracked a joke about
Sara B. and she started chasing me around the pool. Sara B. and I were laughing as
we were running. She and I knew each other from school, and even though we were
not close friends, I knew she who she was. I ran outside of the pool house gate to
get away from her as she continued to chase me outside. As I was looking back at
her chasing me, and as we were laughing, I tripped over a curb and almost fell. I
started jumping in the air in pain; Sara B. stopped chasing me and asked me if I was
ok. I was throbbing from my big toe. I didn’t know at the time, but later I went to the
doctor later and realized that I had broken my big toe that night. For the rest of the
night I limped around.
I remember Gilbert, and Ross asking me what had happened and asked
if I was ok. I told them what had happened. It really hurt, but instead of going
home I drank more beer and smoked more marijuana to dull the pain I was in.
I got a call from another friend, whose name I do not recall, telling me about another
party at 13301 Summit Circle in Poway. We all agreed to go, but Sara was so drunk
by this point, she and Ross leaned on each other for support.
We arrived at the party in Poway around 10 p.m., with Gilbert, Rigby, Sara B., Ross
and Mike. When we got there, we were greeted by Gregory Serras, who we assumed
was the owner of the house, and he said, “Drinks are in the kitchen and the keg’s in
the back yard.” We thanked him and continued throughout the house. There were
approx. 50 teenagers drinking, with two adults “supervising” the whole thing. We all
walked into the backyard where the back yard wasn’t that big but there was a table
full of munchies, (chips, cookies, etc).
Gilbert, Rigby, and I were in the backyard standing in a circle, when I observed Sara
B. grabbing at least four beers in a 30-minute time period. I didn’t think anything of it
because I figured that was how she drank all the time. This was my first time
hanging out with her outside of school. I remember a lot of white guys giving her
beer after beer of Budweiser or Bud light. At least three different guys gave Sara B.
cans of beer after she had gotten the four from the cooler earlier. I didn’t see much of
Ross or Mike at that party.
At approx. 11:30 p.m., Sara was visibly drunk and making out with a boy we both
went to school with named Joe Bell. Witnesses stated under oath during my trial that
she saw her friend throughout the night making out with Joe Bell.
Then Ross and Mike decided to leave. Ross said Sara didn't want to leave yet, and
she wanted to know if I would give her a ride home after the party. I didn’t know
where Sara lived, and also I wasn’t driving. I told Ross I would have to ask Gilbert
because he was the one who was driving. I asked Gilbert if he could give Sara a
ride, and Gilbert agreed. We stayed at the party for approximately another hour.
While Gilbert, Rigby, Sara, and I were walking back to the car, I observed Gilbert
holding Sara B. up. At this point, she was extremely drunk and very flirtatious with
Gilbert. Sara and Gilbert started making out in the middle of the street, so I told
Gilbert to give me his keys so Rigby and I could go and smoke marijuana. Gilbert
and Sara B. had just met three hours prior. Lofton and I got into the back seat and
started smoking marijuana while Gilbert and Sara were kissing outside of the car.
After about three minutes, Gilbert and Sara got into the car’s front seat.
As Pierre was starting up the car, Sara opened the passenger side door and started
vomiting. Sara was vomiting for about 10 minutes. Since I was the only one who
knew her, Gilbert told Sara to get in the back seat with me so I could take care of her.
Sara came in the backseat where Sara and I started kissing briefly (for approx. one
minute), and I sucked her breast. This was the only physical contact that I had with
the victim the entire night. I remember thinking to myself, why did we start kissing
after she had just thrown up? I remember thinking that was disgusting,
that’s the reason I stopped kissing her and started sucking her
breast. Gilbert and Rigby said that was gross of me to kiss her
after she had just thrown up. I felt embarrassed of what I had
just done because they were both making fun of me.
After approx. one minute of sucking Sara B.’s breast, she
passed out with her head on my lap. I was trying to wake Sara
up so she could tell me where she lived, and we could go home, but she would not
wake up. I remember thinking that I didn’t know what to do with her, because she
wouldn’t wake up and I had to get up and work in a couple hours.
Meanwhile, in the front seat I overheard Pierre talking to Lofton about condoms. I
asked them what were they talking about, they both ignored me and told me to “Stop
acting like a bitch, and take care of her.”
I was extremely drunk at that time, as well as high on marijuana. I did not believe at
first that anything bad would happen to Sara. Gilbert, Rigby, and I had just started
hanging out than two months prior to this evening. I did not know Gilbert or Rigby
very well, but I wouldn’t have gotten in the car with them, and wouldn’t have told
Ross we would see Sara home, if I knew they wanted to rape her. Hindsight is
ALWAYS 20/20.
I told Gilbert that I wanted to clean Sara up and get her some water, so Pierre drove
to a Shell station in Carmel Mountain. Rigby and I got out of the car, and I bought
Sara a bottle of water and got some napkins. While I was paying for the bottle of
water, I did not see Rigby go into the back of the store but, when we got outside of
the store, I discovered that Rigby had stolen two beers, a sandwich, and a bottle of
Nyquil.
As I was walking out of the gas station store, I saw Sara sticking her head out of the
car window, and vomiting more. I got in the car and told Sara to start drinking the
capfuls of water I was giving her. I cleaned the vomit off of her face and asked her
where she lived; she just looked at me and then passed out again.
I heard Rigby and Gilbert say something again about condoms. Gilbert asked me
what I wanted to do with her. I told Gilbert we needed to wake her up and get her
sober so we can find out where she lives and take her home. She still didn’t move.
Gilbert said he needed to go home really fast and get something. Gilbert got out and
went in his house, while Rigby was drinking the beer and eating the sandwich he
had stolen from the gas station, and we started drinking the Nyquil he had stolen.
About five minutes later, Gilbert returned and threw condoms on our laps.
I was still extremely drunk. I remember that I threw the condom on the floor of Gilbert’
s car and told Gilbert and Rigby that it was wrong, and they cannot do anything to
her. Gilbert and Rigby again ignored me and continued to talk to each other. I was
extremely drunk, as well as high from the marijuana and extremely drowsy from the
Nyquil.
Gilbert started driving again, and took us to 12345 World Trade Drive in San Diego,
an old fire station. It was pitch black behind the building, and only a few lights, far
away, were visible. Gilbert parked backwards and the three of us continued drinking
the bottle of Nyquil, while Gilbert opened the beer that Rigby had stolen. I figured
Gilbert had been here before because he went right to 12345 World Trade Drive
where the fire station was located. (Interestingly, today, that old fire station has 24-
hour surveillance cameras surrounding it. I wonder how different my life would have
turned out if they had been there then.)
I assumed that Gilbert was accustomed to driving to weird spots and parking, and
listening to music to talk and smoke marijuana. I laid my head back and started
listening to music and started getting really tired from the Nyquil, the alcohol, and
marijuana.
After we finished the bottle of Nyquil, Gilbert told Rigby that it was time to “do the
damn thing.” I presumed that this meant to start having sex with Sara. Rigby got out
of the car and opened the rear car door, where Sara’s legs were, and he took off her
underwear. Rigby had put on a condom and started to have sex with Sara. She was
passed out, and I was drifting in and out – I was too drunk to stop him from what he
was doing. I was in and out of consciousness, only waking up occasionally
because of my throbbing and broken toe.
I was very drunk, but I remember that I told Rigby to stop having sex with her. I don’t
think that he even comprehended what I was saying; he just kept going. I was
drifting in and out and all I could feel was Sara’s head hitting my thigh as the car
rocked back and forth. I remember feeling her head bouncing on my lap, and then
passing out again.
I woke up and I think it was about 10 minutes later; Rigby was done and had gotten
back in the front seat. Gilbert was fingering and touching Sara’s breasts. Gilbert told
me it was my turn. I told him “No way, I have to get her up and get her clothes on
because I have to work in a couple hours.” I got up from the back seat (behind the
driver’s seat). Sara was still passed out in the back seat.
I walked around to the back passenger door where Rigby had just been standing,
while he was raping Sara, and I opened the door. I started trying to put her pants
back on, and trying to wake her up. I think Sara was starting to wake up. I was
having a hard time getting Sara’s jeans on, so I asked Rigby and Gilbert to help me,
but they both refused to help me and both told me that she was my friend and I could
do it myself. After struggling for a couple of minutes I got her jeans back on.
I looked up and Sara had woken up and was looking right at me with a very scared
look on her face. She started crying and pushed me out of the way, then started
walking to an open door that was across the parking lot from us. I yelled to her that I
was trying to help her. Sara B. was visibly stumbling as she walked across the
parking lot.
She kept walking, so Gilbert yelled at me to get in the car and he
started to drive. I noticed that Sara had left her purse in Gilbert’s car, so I
told Gilbert, and he told me to set it outside. Rigby said,” Your girl
better not say shit, or that’s your ass.” Gilbert agreed with him. And
we went home. I was afraid for my life of what might happen to my
family or me if Sara did anything to Lofton. I was still drunk and did not
comprehend what had just happened.
Ten days after the incident, on September 18, 2001, I was contacted by phone by
Detective Sharon McFalls, who introduced herself and asked me if I had time to
come to her office downtown and answer a couple of questions about a girl who
was claiming that I raped her. I agreed and told her I would have to call my mother at
work because she would have to pick me up and take me to the station.
McFalls agreed and we set a time to meet that same day. My mother and I arrived
about an hour and a half later. Detective McFalls and I went into a blue room, with
only a table and a camera in the room.
I had turned 18 less than a month before, and the detective knew this. She even
joked that I was “just a baby,” and commended me for graduating early and enlisting
in the Army to serve my country. (The terrorist attacks of September 11 happened
just days after the rape took place, and I had enlisted in the Army. I was almost
guaranteed to serve a heavy combat division in Iraq.)
I was not allowed to have my mother present and I was not advised of my right to
have an attorney. I was told I could refuse to answer any questions, but the
detective also suggested that if I refused to answer, it wouldn’t look good.
Detective McFalls started asking me questions about my relationship with Sara B. I
told her I only knew Sara through school and that was it. Then McFalls asked me
about the incident that had occurred on September 7 and 8.
I explained what had happened and Detective McFalls told me she thought I had
raped the victim, and said she believed that I was lying. I was so shocked by her
accusation that I raped Sara B., and that she didn’t believe me. I was hurt because I
knew who did it and was telling the truth. Detective Mc Falls would not listen to a
word I had said, she just kept on saying “Your lying, I think you did it.” I repeatedly
told Detective McFalls that I had not had sexual intercourse with Sara and that my
only contact with her was kissing and sucking her breasts.
Throughout the entire interview, I did not refuse to answer any questions or leave,
as was my right since I was not under arrest. I just wanted the situation to be over.
Looking back now, I would have insisted on having an attorney present to make
sure my rights were not violated. I was 18 years old, so I could not ask for my parent
to be present, and I was naive, and I assumed that since I was innocent, I would be
able to clear up the matter and go home.
Then Detective McFalls asked me if she could take a swab of my saliva, so she
could get my DNA. I told her “Sure, I just want my name cleared.” McFalls took my
swab and told me she would be right back, she said she had to give my saliva to the
lab so they could tell her the results that day. I told her that she wouldn’t find any of
my DNA in Sara’s vagina.
After leaving me in the room by myself, she returned and started telling me that it
was illegal to have sex if you were under 18, and she told me she believed I had
raped Sara B. She told me that because I got rid of Sara B.’s purse, I was guilty of
something. We talked about how I believed that when I fingered her, I thought it was
consensual and that she was coherent. But I did not rape her and I did not touch her
while she was passed out.
Approx. 22 minutes after she left with my DNA swab, the detective returned with a
white sheet in her hand that had a diagram of a vagina and two hand-written arrows
coming from the diagram with the words ”Thornton findings.” She told me that my
DNA was found in Sara B.’s vagina and that I was lying about my sexual contact with
her. I denied and it and she insisted, “It’s here,” and “Then how did it show up?” She
asked me if I was a medical student or understood medical terminology, and I said
“no,” – I barely recognized the diagram of a vagina. She even said “I’m not making it
up, I‘m not trying to frame you ... Maybe you thought it was consensual ... Why did we
find your DNA on her?”
I was too naive and young to even know that it takes weeks -- not minutes -- for a
DNA test.
Detective McFalls asked me if I knew what this paper was she had just placed in
front of me, and I said yes. I knew what the diagram was, but I knew that it could not
be right, and I told Detective McFalls that there was no way this was true. She kept
pressuring me to admit I had raped Sara B. She told me she didn’t believe me when I
told her what happened.
I was 18 years old and had no idea of the time it took to get DNA test results. Later I
discovered that it took at least six weeks for definitive results, and that no seminal
DNA was found in the victim at all. My saliva DNA was found on her breasts, just
like I had told McFalls -- that I made out with Sara and kissed her breasts, but never
raped her.
I was trying to make sense of what Detective McFalls had presented to me, because
I knew I had not raped Sara that night. Detective McFalls kept pressuring me, and
wouldn’t get off my back. She asked me if I even touched her with my penis, and
maybe that was it, because “it didn’t take a lot.” She pointed at the diagram and said
“you were there, its right there.”
So I told her that I “may” have brushed my penis against Sara when we were fooling
around earlier that night. I didn’t know how my DNA could have ended up on Sara. Of
course, later it was proven that my DNA was not in her vagina.
I thought that if I explained that I may have touched her but I didn’t have sex with
her, I wouldn’t be in trouble. I should have told the truth: that my penis never touched
her. As soon as I lied to the detective, I knew I had screwed up. I did not rape Sara
B. This was later proven by the real DNA results.
I know I was drunk that night. I know I was a kid and I made some bad decisions.
But I also know I never raped or had sex with Sara. I never used the condom that
Gilbert provided, and no semen was found inside the victim. One used condom was
found at the scene, and that was Rigby's.
A couple of weeks after my interview with Detective McFalls, on November 9, 2001,
at 10:55 p.m., I was attacked by Sara B. in the parking lot of a local Vons. I was with
my friend Efran Taghavi, at 13255 Black Mountain Road in Rancho Penasquitos. I
was in Taghavi’s car waiting for him to come out of the store, and I decided to get
out of the car because I wanted to get some fresh air, when out of the corner of my
eye I saw a woman coming toward me and then she started hitting me.
I realized that the woman who was hitting me was Sara B. She punched me three
times in the face and screamed “You raped me!” She had about eight or nine people
with her, all males. I pushed her arm off of me to stop the onslaught of punches she
was throwing. Then all eight men rushed toward me.
I yelled at Sara and told her to stop hitting me, and that I didn’t rape her. I told her that
she had her story wrong, and that I was trying to help her, not hurt her. She didn’t
listen to me. I was so mad that she had attacked me, that I hit a car window. It turned
out later that the car belonged to Deanna Engstron, an employee at the Vons where
the incident took place. I later paid for the damages to her car.
There were many witnesses who saw what occurred, but according
to the statement of Stephen Durbin, he had just arrived to work at the
Vons when he saw a female (later identified as Sara B.) approach and
hit a black male (myself). Officer Hoffman came shortly after the
incident and called a paramedic because I was bleeding profusely from my arm and
mouth. I also had to go to the Emergency Room and get stitches in my arm.
This was only the beginning of the nightmare for me.
The next morning November 10, 2001, I left Detective McFalls a message and asked
her to call me back. Detective McFalls never called me back. I called Detective
McFalls again on November 12, 2001, and spoke with her, and told her what had
aspired on November 9.
Detective Mc Falls laughed at me and told me “Oh, since she has a rape case on
you now you want to get something on her, I don’t think so.” Detective McFalls
treated me like I was a criminal and a rapist, like I was already guilty. She treated
me like I was trying to harass Sara, when all along I wanted to help her, and I never
instigated the attack. Since, Sara B., Rigby, and I went to the same school, I was told
by Detective McFalls to leave Sara B. alone after she attacked me November 9,
2001.
I always wanted to help Sara, and I don't hold it against her that she mis-identified
me as her rapist. I know she was confused that night, and I saw for myself how
extremely drunk she was. I feel for her because she was raped that night, but I was
not the one who hurt her.
It was all over school that Sara B. had a rape case against me, and that she had
attacked me. I felt like killing myself because everyone who was my friend started
acting very funny to me. People would look at me and say things like “Did you really
do it, Kevin?” I told them they had their story wrong.
I felt like I had a big scarlet letter on my back. That feeling hasn't gone away in the
years that have passed since.
I felt guilty before being proven innocent -- even before I was arrested and charged.
Sara B. had spread the word as far as my old high school (Rancho Bernardo High
School), but I didn’t know it yet. I knew I was innocent. It got so bad around school
had to go into home schooling which I graduated Six months early to get away from
the turmoil that was following me. My name was ruined.
People started calling me a rapist, guys wanted to jump me because they thought I
was a rapist. Death threats followed me everywhere I went. I was so depressed
some days not wanting to leave my house because I couldn’t take people
threatening to do harm to me, and staring at me with hate in their eyes. I was called
countless names that African-American men should never have to hear in their
lifetime. And there was still a trial to come.
In the eyes of society in my town I was guilty, No matter
what! I was hurt my own best friends could turn their backs
on me so easy. I had always lived for my friends,and I would
have done anything for them, I thought I could count on the
same thing back, but I had no one left for support.
On December 28, I was arrested for the rape of Sara B.
I was shocked, scared and in disbelief and embarrassed
because I was arrested in front of dozens of people from my school and my
community. I couldn't believe it. I cried the whole way to downtown jail.
I was booked and served two days in downtown San Diego jail before bailing out on
$50,000 bond. My mother posted the $ 50,000 bail to get me out of jail. It was so hard
on her to come up with the money, she had to borrow from a few different friends,
and take out loans just to get me out of jail. It put her in a huge hardship; she
shouldn’t have had to pay for. She’s still paying off that money she borrowed back
then, today.
My twin sister Donna was going to Abraxas while I was arrested and all of the
investigations and accusations of rape. She told me some people would come up to
her and ask her if I had raped Sara B. Donna told me she got so many people talking
and looking at her with hate in their eyes that she had to go into home-schooling as
well. She said she was scared for her life when she was going to Abraxas because
Sara B. started going back to school after I got arrested and went into home school.
After being released from jail on December 30, 2001, I returned to Abraxas High
School and graduated six months early (as I had planned to do before the rape took
place) on January 4, 2002.
Before going through this case, I had enlisted in the Army and was awaiting
deployment to Fort Sill, Oklahoma, and then to my job training at Fort Bliss, near El
Paso, Texas. My entire future, which I had worked so hard to plan for and prepare
for, was about to be ruined. Still, I had faith in the justice system.
On January 2, 2002, I had my first court appearance, which was my arraignment.
Since I didn’t have the money to get an attorney, the court’s assigned me a Public
Defender. His name was Edward John Peckham. Although the court assigned him to
me I did not meet Peckham that day in court because he was busy doing other cases.
Peckham seemed very trusting and professional in our first meeting. I had never
been in any trouble whatsoever before in my life before this, and my family and I put
all of our trust in Peckham, and for good reason, he said. He asked me a lot of
questions about the event and the details of what had happened. I at the time told
him that someone had raped her; I just couldn’t say who did it.
They both told me I needed to tell them what happened, but I just couldn’t at first,
because I was afraid to say anything against Rigby and Gilbert. All I could remember
was what they both said to me when they were done with Sara and she ran away;
“Your girl better not say anything or that’s your ass.” I felt terrible covering for that
rapist and his friend, but I was scared that something would happen to me. After my
lawyer explained the trouble that I was in, I changed my mind.
After being yelled at -- by Peckham and my mother -- about covering for Rigby and
Gilbert, I finally told them what had really happened that night, and wrote out by hand
my account of the events.
A month after our first meeting, I met with Edward Peckham by myself. This time our
meeting was a lot different because Peckham was verbally abusive to me.
Peckham said, “That’s bullshit, you’re lying, Kevin tell me what really happened!”,
and shouting questions at me like I was guilty. He asked me to tell him what
happened that night and I did, like I had done a month before and hand written as
well.
After telling Peckham what I recalled that night, he told me I was lying and that he
knew that I raped Sara. I repeated again that I had no sexual intercourse with Sara
B. I felt so hurt that my OWN attorney who was supposed to be on my side didn’t
believe me. I figured that if my lawyer didn’t believe me, no one else would, and I
lost all hope from that point on.
He then asked me about the statement I made to Detective
McFalls, and I told him that my comment wasn’t true, and that
Detective McFalls had lied to me by hand writing the “Thornton
Findings” on the medical sheet and told me that she had found
my DNA on Sara’s vagina and pressured me to say that. I told
Peckham that I knew I had messed up and I needed him to help
me.
He said that would be the thing that could hurt us in the future, and if I took the stand,
the prosecution would tear me apart. So, Peckham told me that the prosecution didn’
t have the evidence to find me guilty so he told me unequivocally not to take the
stand.
I had never been in trouble, and I had no idea what I was doing. So I took the advice
of my lawyer, and hoped he knew what he was doing. After that meeting, Peckham
and I met when I had my second court appearance.
Peckham again showed up late, almost missing my appearance before the judge.
Weeks had gone by again without hearing from him. We never kept in touch on a
regular basis. He never called me prior to the trial – I always called him to find out
where to be and what to do.
Peckham had interviewed Gilbert, and Gilbert told Peckham that he knew I did not
have sex with Sara, and that he would testify on my behalf. Pierre was the only
person that did not get charged with the crime because Sara said he didn’t rape her.
As soon as I got that news, I just knew I was a free man. I knew Gilbert wouldn’t let
me down. He knew what happened, so at the time, I just knew he would tell the truth
and set his “friend” free.
Gilbert even promised my mom that he would tell the truth on the stand and set her
son free; he even went as far as to promise me that he would take the stand and tell
the truth. Gilbert was my star witness and I needed him to set the record straight so I
could go on and serve my country in the United States Army.
Eight months after the initial incident, on April 26, 2002, Rigby and I had to stand trial
for the rape of Sara Baca. Rigby and I were charged with two charges: 1) Rape of an
unconscious person, and 2) Rape of an intoxicated person.
During the entire trial, I was so scared and confused. I heard a lot of big words and a
jury just staring at me, making me feel guilty even though I knew I wasn’t. Peckham
continued to tell me not to worry, and that everything would be fine. I didn’t know
how to not worry, because I knew we didn’t have any witnesses at the time, and my
lawyer thought I was guilty.
Attorney Deborah R. Carson, Rigby's attorney, made a motion to sever Rigby’s
robbery case from his rape case – apparently there was a robbery after the rape took
place involving Lofton Rigby – which was successful. I learned later, and was
shocked, that the judge did not sever my case from his, and I still feel that if I had
not been forced to stand trial with Rigby, I would not be in this present situation.
The judge asked Peckham if he had any stand on the issue and Peckham sat in his
chair and said “No”. I sat there not knowing anything about what was going on in the
court room. Peckham would just tell me when to say “Yes” or “No” to the Judge.
Peckham never explained anything to my mother nor to me (whose life was on the
line).
I always asked Peckham what something meant and he would tell me he will
explain it after the judge got done and he usually never paid me any mind after the
judge was done speaking. So, there I sat, with
my life in a the hands of a man who not only didn’t
want to prove I wasn’t guilty but, now didn’t want
to communicate with me either. I heard several
statements Sara B. and Rigby said that set me
free from the case, I told Peckham to point to the
statement that was wrong and he would tell me to
write it down and he would never ask what I had
written down to disprove the witness’s credibility.
Peckham wanted to make it appear to me that he had everything under control He
even went as far as to even say, ”You have nothing to worry about, you are the flea
on the dog’s back”. For years I’ve tried to figure out what that meant.
Peckham hardly got out of his seat until the second week of the trial when the
witnesses came on the stand. Peckham didn’t even know how much my bail was
(find out the page of this). When it was our turn to present a witness, I came in that
morning (find the morning) to Peckham telling me that my star witness was pleading
the fifth on All questions, because the DA was going to tie Pierre to the crime and
charge him for providing condoms and driving to a secluded place.
I was so devastated because Gilbert not only sexually assaulted Sara by fingering
her while she was passed out, but he also gave Rigby a condom to rape Sara, and
drove to a place where no one would see what was going on. But, by pleading the
Fifth, he was sending an innocent man down the river for a crime he knew I never
committed.
When Rigby took the stand on May 6, 2002, he lied about most everything except
where the party took place. Rigby told Peckham that I invited him into the backseat
so that he could have sex with Sara which was not true at all (page 427, Line 21-
25). Peckham never made it clear to the jury that Lofton was lying.
Shortly after Rigby lied his way off the stand, the jury was given their instructions
and went into deliberations. I wasn’t worried when the jury went into deliberations,
because I knew I haven’t committed this crime. Taking the advice of Peckham not to
testify, I was left with no defense.
On May 13, 2002, Peckham called me and told me that the jury had reached a
verdict and he wanted to meet me outside of the courtroom. When I arrived Peckham
was no where in sight. He finally got to the courtroom 30 minutes late.
My mother, my twin sister, Peckham, and I entered the
courtroom. I sat in my seat thinking about what I wanted to do in
the army after the court stuff was done. Judge Kennedy came in
and then the jury came in after him. I couldn’t stand to look at the
jury so I keep my head down the whole time. When Judge
Kennedy asked the jury to hand down the verdicts, I was so
nervous and scared. When the jury found Rigby guilty of rape, my
heart jumped and when they said guilty for me I immediately
broke into tears. The feeling was indescribable -- the verdict
broke my heart. My life's course changed at that moment.
I couldn’t believe this was happening to me. I felt betrayed and
stabbed in the back by Peckham. He told me and my family
everything would be fine. He also told me that I had nothing to
worry about, and that me not testifying wouldn’t hurt me that
much.
He was wrong!
I spent 10 months in jail, was given 4 years of probation and have to register as a
Sex Offender for the rest of my life. I went to George Bailey and Vista. While in jail I
had to fight two gang members that heard about my case and came to fight me. I had
never been so scared in my life when two big black men come up to me and asked
me to come in their cell and asked me about it. I told them the truth and they attacked
me.
Being away from my family was horrible. The jail put me in with the worst of the
worst. I had to defend myself for a crime I never committed. It hurts knowing I didn’t
do the rape and no one wants to hear from a sex offender. After getting through the
worst time in my life I was released on January 3, 2003.
Being released was the best feeling. I had to go report to probation within three days,
and register as a sex offender all in one week; I was hurting because I just wanted
someone to listen to me, to hear my side of the story. Having to register as a sex
offender has been the hardest thing I have gone through thus far. Being that I am a
registered sex offender I have had to go to sex offender counseling, and have a
probation officer watch my every move.
It’s hard to deal with a counselor who after two years of telling her I didn’t commit
the rape, insists that I confess a crime I never committed. Barbara Barrett even told
me that I wouldn’t get off probation until I confessed to the crime. The last four years
have been a complete mess with my life. Since I was released in January 3, 2003, I
cannot find a job to further my life. I have amassed almost $ 20,000 dollars in debt
due to the sole reason of being in locked up.
At one point after not being able to find a job for 6 months, I had to start lying on the
applications because no employer wanted to hire me because I had a rape
conviction on my record. It has been so hard to have to please everyone and not get
anywhere in life. I can’t go to college because colleges don’t want sex offenders on
the campus. I’m a normal person who just wants his life back and make a difference
in this country.
Since being on probation I have been a model citizen and don’t harm anyone. I have
paid all my restitution for Probation and have completed a drug and alcohol program
probation asked me to do. But since I am a registered sex offender and on probation,
I do not have many of the rights I took for granted before.
After having no problems on probation for four years and being an outstanding
citizen in my community and church, I moved from Poway to Escondido on January
31, 2006 because my mother retired and moved to Virginia. I moved in with my twin
sister Donna, her husband, and their two year old son. We all lived under a small
one bed room apartment. I had only planned living there for a couple of months
because my girlfriend and I were getting an apartment at the end of May. I had been
working two jobs which took mostly all of my days and nights. I had registered with
Escondido police department January 31, 2006, the day I moved.
Escondido police started coming to my home immediately to check my residence.
The police would come do the checks in the early afternoon, when they knew normal
people would be at work. They did that several times and then determined I didn’t
live with my twin sister.
So, on May 4, 2006 I was at my fiancée’s home in San Diego when two Escondido
police officers came and arrested me for being at my fiancée’s home. They arrested
me based on staying at her house one night or more, and for having my work clothes
and a razor at her home. My night job was five minutes away from her place, I would
go to her home after I got off of my day time job and take a shower and change into
my work clothes for my night job, and then go to work again.
I had been using my fiancée’s car for about a month or less because my car had
broken down. I have been unjustly imprisoned once again, due to my status as a
“sex offender” I was locked up at the Vista Detention facility for 71 days. My sister
Donna, who was counting on me for partial rent, has been severally financially
affected by some police foaming at the mouth to catch a sex offender. She also
counted on me to watch my nephew.
My fiancée has been affected, emotionally as well as financially,
by my arrest because we planned on moving in together at the
end of May. She was forced to live with friends for almost two
months, waiting for me to return -- and for much of that time, not
knowing if I would go to prison for years. Everyone involved has
been affected by the police’s misconduct.
I’ve been turned down from countless jobs because of my sex
offender status. I just want to be able to walk around San Diego
and not be afraid to be myself or wonder whether my probation
officer is going to put me back into jail. I now know what it must
have felt like to be a slave, because having your freedom taken
away from you, being wrongfully convicted by the justice system,
and having no hope in sight really hurts, and is not right.
I am asking that justice be done and give me my life back, like I
deserve. The Justice system has taken everything away from me and
yet I continue to smile! I just want the truth to finally come out. Even though I
have had a hard life, I would not change anything that I have been through because I
have learned how to be a man and stand on my own two feet. I still have high hopes
for the future.
I believe in the justice system even if the justice system didn’t believe in me, and
know without a shadow of a doubt that upon hearing the true facts of the case I will
be set free of this stigma. I am hopeful that the system will right a wrong and realize
that an innocent man stands before them. It has been a rough four years. I have been
nearly homeless countless times and struggle to find work.
My mother is gone to Virginia which has left me here by myself, which has I feel it is
me against the world. I just want the truth to finally be heard so I may be able to get
on with my life a free man, with no record. Also, I have found love. I never thought a
woman could love me after my rape conviction. I never thought I was capable of
loving a woman after being hurt by this case, but I have.
I plan on getting married in the future and having children, and I don’t want to put
them through the same torment I went through these last five years. I couldn’t take it
if my children or wife were looked at differently because of a misunderstanding of
the law.
Kevin's story, in his own words
 | |  | |  | |  | |  | |  | |  |
| There has never been any dispute that I was present at the scene of the crime. I, however, did not commit rape. |
| I remember thinking, “damn, these girls can drink more than I can.” |
| I did not know Gilbert or Rigby very well, but I wouldn’t have gotten in the car with them, and wouldn’t have told Ross we would see Sara home, if I knew they wanted to rape her. Hindsight is ALWAYS 20/20. |
| I had turned 18 less than a month before, and the detective knew this. She even joked that I was “just a baby,” and commended me for graduating early and enlisting in the Army to serve my country. |
| I was too naive and young to even know that it takes weeks -- not minutes -- for a DNA test. |
| I felt like I had a big scarlet letter. That feeling hasn't gone away in the years that have passed since. |
| Before going through this case, I had enlisted in the Army and was awaiting deployment to Fort Sill, Oklahoma, and then to my job training at Fort Bliss, near El Paso, Texas. My entire future, which I had worked so hard to plan for and prepare for, was about to be ruined. Still, I had faith in the justice system. |
| I learned later, and was shocked, that the judge did not sever my case from his, and I still feel that if I had not been forced to stand trial with Rigby, I would not be in this present situation. |
| I was so devastated because Gilbert not only sexually assaulted Sara by fingering her while she was passed out, but he also gave Rigby a condom to rape Sara, and drove to a place where no one would see what was going on. But, by pleading the Fifth, he was sending an innocent man down the river for a crime he knew I never committed. |
| While in jail I had to fight two gang members that heard about my case and came to fight me. I had never been so scared in my life when two big black men come up to me and asked me to come in their cell and asked me about it. I told them the truth and they attacked me. Being away from my family was horrible. The jail put me in with the worst of the worst. I had to defend myself for a crime I never committed. It hurts knowing I didn’t do the rape and no one wants to hear from a sex offender. |
| I believe in the justice system even if the justice system didn’t believe in me, and know without a shadow of a doubt that upon hearing the true facts of the case I will be set free of this stigma. I am hopeful that the system will right a wrong and realize that an innocent man stands before them. It has been a rough four years. I have been nearly homeless countless times and struggle to find work. |