Brandon Birmingham
Unraveling a one-man epidemic of drugs, illegal videotaping, and HIV exposure
In December of 2005, I picked up the case file against Willie Atkins and read something about a pinhole camera hidden behind a world map. Eighteen months later, we tried and convicted him for attempted sexual performance of a child1 named John. (All juveniles’ names in this article have been changed.)
The bus stop
John and Dewayne went to a big public high school in Dallas. Towards the end of April 2005, Dewayne’s mother got a tax refund and gave him some money to spend as he chose. He called his best friend John and they did what they normally did: They headed to the bus stop to catch a ride to the mall. They were waiting at the bus stop when Willie Atkins pulled up and asked for directions. “You guys know how to get to Skyline High School?” he asked. John replied, “Yeah, head up the road a few miles and turn right.” Willie said he didn’t really understand. “Why don’t you guys show me, and I’ll take you where you need to go.” John and Dewayne agreed and jumped in Atkins’ car.
Atkins began the conversation: “Dewayne, I’ll bet all the girls come after you. You’re built pretty well. Do you play football?” Dewayne said that he did, and Willie asked him where he went to high school. As they drove down the street, Willie asked them whether they “get a lot of girls,” and “how many girlfriends they’ve had.” Just small talk to them—no alarm bells went off for either boy. But Atkins had a plan. “Well, I got a lawn mowing business and if you need a job, I could give you some work. Let me have your number.” Dewayne gave him a fake phone number, while John gave him his real number.
A few days after giving Atkins his phone number, John got a phone call. Willie asked whether John knew how to drive a car because he wanted to pawn his “wife’s car” and needed someone to follow him and give him a ride home. John met Atkins outside his apartment complex, and they headed east on Interstate 30. Atkins said that he had to change his clothes at home before they ran the errand, opting for something more comfortable than his slacks and business shirt, so off they went to Atkins’ apartment—just as Willie mentioned something about a porno movie that he had at his place. He said nothing of the pawned car or the landscaping business. John felt a bit uncomfortable but went along with it.
When John walked into Atkins’ apartment, one of the first things that he noticed was the pink couch in the living room of an otherwise cluttered apartment. Atkins told him he had the movie cued up in the bedroom and motioned for John to join him there to watch it. John sat in a chair next to the bed; it seemed like any other chair, no more than a few inches from the bed. Willie put on the commercial adult movie that included a black man receiving fellatio from a white woman: “You ever had a girl do that to you before?” Atkins asked. He then went into his closet, stripped down to his boxer shorts and a white t-shirt, and lay on the bed. He was almost 42; John was 15.
Later, at trial, we played a recording of a phone call for the jury where Atkins spelled out the conversation he then had with John: “… That’s how white people do it—get somebody to put their mouth on it for you. That’s what I’m talking about: Get you a white girl. Those black girls, you up there just trying to get that pressure off of you, just like any other 18-year-old gonna do, but the thing of it is, they’re already making plans on what to name the baby.” As he says this, Atkins fondled himself through his boxer shorts. As the movie played, John became more uncomfortable as Atkins moved closer and closer to John’s chair, continuing the sex-talk and fondling. “Let me see how tall you are,” Atkins asked as he stood about an inch in front of the teenager.
That was it for John: “I dropped my keys outside,” he exclaimed, an excuse to bolt from the apartment. He darted through the parking lot and down the I-30 service road and arrived at a gas station about two miles away where he called his dad for a ride home. While waiting for his father, John noticed Atkins driving around looking for him. On the way home, John told his father everything.
John’s father, George Smith, went home and checked the caller ID for Atkins’ phone number; he wanted to give him a piece of his mind. “A guy like that has done this before,” George thought, as he told Atkins it was not right for a grown man to take a 15 -year-old to an empty apartment, watch pornography, and fondle himself. “Please don’t go to the police—I’ll give you money,” Atkins pled. George considered taking care of the situation himself but decided instead to call the police. The case was eventually assigned to the Dallas Police Department Child Exploitation Unit.
After backtracking with John and obtaining identifying information on Atkins, Detective Vidal Olivarez served a search warrant on Atkins’ apartment. He was looking for the commercial pornographic videotape to corroborate John’s story. John gave him a detailed layout of the apartment: where certain furniture was, how the rooms were laid out, and that Willie retrieved the porno from the closet. Detective Olivarez found 57 videotapes in the closet exactly as John described. Detective Joe Corden worked with Olivarez; his job was to watch all of them and look for the scene John described, which he found. Forty-one of the tapes were insignificant to the investigation; the remaining 15, however, made the whole case.
“I don’t even do no porno, dog”
Detective Corden couldn’t believe his eyes when he saw the first of these 15 tapes: black and white, grainy, and homemade. There was no audio. They depicted Willie engaging in sexual conduct (oral, anal, and rarely with a condom) with young males in his bedroom. They smoked weed, drank beer, and exchanged money. With very rare exception, all were young black males. We couldn’t say with certainty that anyone in particular was underage; all had hit puberty, but, as Detective Corden testified at trial, the overwhelming majority “were far closer to having just hit puberty” than having been grown men for a long time. The tapes were recorded with a pin-hole camera mounted on the wall above the TV (see the photo on the next page) whose cords were hidden by some pamphlets tacked to the wall.
As his defense team was quick to point out during the trial, there was no violence; Atkins, however, was the undeniable aggressor. He was subtle, patient, and goal-oriented; he systematically moved in on his targets with perfect success. Fifteen tapes, each six hours long, added up to 90 hours total—and there were 131 different men in the tapes. Despite all of this, during the end of the recorded phone call discussed above, Olivarez had John ask Atkins if he could borrow the porno movie he showed the teen. Willie responded, “I ain’t got no porno. I ain’t got no porno; I don’t even do no porno, dog.” He said it with all the calmness and coolness of a truth-telling man. He was a good liar.
Indictment and jury selection
The biggest problem with the case was that Atkins had never actually touched John. We had all those videotapes, but John’s presence in Atkins’ apartment was either never recorded or we never located the tape. John was extremely hesitant to testify, a common problem in male-on-male sex crimes, and he was soft-spoken, almost timid.
It was very clear from Atkins’ actions and words that he knew John was under 18 and that he was trying to induce John to engage in sexual conduct. He asked John, for instance, if he knew where a local high school was, where he went to high school, and if he knew how to drive a car; he also showed a pornographic tape, talked with the teenager in a sexually explicit manner, and fondled himself. Attempted sexual performance of a child under §43.25 of the Penal Code fit the crime best2: “I thought he was going to rape me,” John testified. That pretty much summed up Atkins’ intent. Also, by making it an “attempted” offense, we made Atkins’ intent a material element—we charged it that way for the sole purpose of introducing the videotapes.
During the pre-trial hearing, the State and defense argued on the issue of the videotapes’ admissibility. The defense contended that the tapes were inadmissible under 404(b) because they were mere evidence of the defendant’s bad character. Additionally, because we could not make any representation in front of the court or jury that the males depicted in the videotapes were underage (despite our suspicions), defense counsel argued that the State was attempting to introduce the defendant’s acts that were constitutionally protected by the right to privacy as outlined in Lawrence v. Texas.3 We argued in response that even though he never actually engaged in the sexual conduct with John, we had 31 occasions wherein the defendant removed his pants, lay on the bed, fondled himself through his boxer shorts, and discussed what appeared to be a pornographic movie—all of which culminated in sexual conduct. Because the defendant’s intent to commit sexual performance of a child was a material element, the videotapes were the best evidence to show what the defendant ultimately wanted to happen; the tapes showed the jury his goal and “his conscious desire or objective.” Finally, under the doctrine of chances as outlined in Morgan v. State,4 we argued that the tapes showed that it was impossible that the defendant’s acts in John’s presence had any purpose other than engaging in sexual conduct. The court reserved its ruling, and we got set to pick the jury.
Assistant District Attorney Pat Kirlin stood up in front of 70 panel members at the beginning of voir dire and asked if everyone agreed that “a society is best measured by how it protects its children.” He sent a loud and clear message from the first words out of his mouth that this case was going to be about much more than a crime that never actually came to fruition. He artfully outlined what the State had to prove and what we didn’t have to prove. He stressed how important it was for the jury to be able to infer a defendant’s intent from his actions “either before, during, or after” attempting to commit, or committing, a particular crime, and Pat committed the jurors to the full range of punishment. We seated them on Monday afternoon.
We first called John to the stand and had him tell his story. Next, Dewayne corroborated everything that happened in the car after he and John waited at the bus stop. We then called John’s father to testify about his son’s demeanor at the gas station and on the way home, and that he believed his son so much that he was willing to go to Atkins’ house and handle the situation himself, despite his own criminal history that would have easily landed him in prison for a long time. And then we waited for the judge’s ruling on the videotapes’ admission.
The judge overruled the 404(b) and 403 objections. There could be no doubt now as to Atkins’ intent. As Detective Olivarez took the witness stand to talk about finding the pin-hole camera in Atkins’ bedroom, we knew the case was over. Det. Corden then outlined very specifically the 31 scenes wherein the defendant engaged in conduct that matched the acts alleged in the indictment. The judge allowed us to play one representative sample of those 31 scenes. We picked one in particular because the male did not appear too young, the scene was short, it involved only oral sex, and it showed no drug use or prostitution—in short, we felt it balanced any prejudicial effect with its probative value.
Meet the real Willie Atkins
The jury came back with a guilty verdict, and we began the punishment phase. We called the fingerprint expert first to prove up Atkins’ criminal history and his enhancement paragraphs. He got a six-year sentence in 1988 for aggravated robbery and a four-year sentence in 1992 for unlawful possession of a firearm by a felon. Next, we put on Dominic (not his real name), who was 15 in 1999 when Atkins solicited him for sex and asked him to sell drugs for him. Dominic and his best friend, 14-year-old Marcus, decided that because Atkins had money to offer for sex and because he sold drugs, he would be a good target for robbery. During the course of that robbery, Atkins shot and killed Marcus. He was no-billed on the murder, but we were able to use Dominic’s testimony to show that not only did he engage young men for sex, but he also recruited them to sell drugs.
We then recalled Detective Corden to tell the jury about the 100 other victims on the videos. The defense tried to make a big deal about the fact that each and every encounter appeared to be consensual and between adults. But we focused on the fact that even if each person were an adult, not a single one could have known that he were being videotaped. We had video stills made of the apparent drug use and money exchanges to show that Atkins was selling drugs and sex—illegal regardless of anyone’s age or consent. We also introduced the apartment records showing that Atkins moved into his apartment in 1999, stressing through Corden that all of the scenes depicted the exact same bedroom, bed, chair, and window. Willie had been up to this surreptitious recording for at least six years. We introduced all 15 videotapes but decided to play only two scenes.
The first was of a male who looked the youngest of all 131 victims. As he and Atkins are sexually engaged, they appear to be startled by a sound. Atkins quietly shushes his partner, and they immediately jump off the bed and hurriedly put their clothes on. As Atkins peeks out the window to make sure that no one knows what they’re doing, his actions undeniably make clear that Atkins knew the young man was underage. As disturbing as that was, the second tape was even worse.
In the other tape, the victim appeared to be in his 20s, and he lay down on the bed as he and Atkins, wearing his ever-present muscle shirt and boxers, appear to smoke marijuana and drink something from a cup. Oddly, Atkins gives him a pedicure, cutting his toenails, and afterwards the other man appears to pass out. Just to make sure, Willie tickles the man’s feet and subtly moves his hand between the man’s legs, ever so slightly touching his genitals through the boxers. The man doesn’t move, staying completely still. Atkins then rolls the unconscious man onto his stomach and penetrates him. He didn’t put on a condom. We have no idea who the man is, but, as the jury was about to learn, this incident might be exactly when Atkins sentenced him to death.
We had Corden emphasize the specific number of victims and how often a condom was used versus how often it wasn’t. Of the 131 young men, 105 engaged in unprotected sexual conduct with Atkins. The jury had no idea why we made such a big deal out of that until we introduced State’s Exhibit 41.
“I had a sick feeling in the pit of my stomach”
After Corden testified, we offered State’s 41, Atkins’ medical records, under the business records exception,5 and asked for permission to publish. As we read a nurse’s entry from November 7, 1991, in open court to the jury, you could feel a collective gasp: “Informed [patient] that he was HIV-positive; [patient] doesn’t seem very concerned … told him that he should inform those he is in intimate contact with …” A juror told us after the trial that she got a “sick feeling in the pit” of her stomach when she realized the implications. We called a doctor from Children’s Hospital in Dallas to show that, given the fact that the leasing records showed he moved into the apartment in 1999, and given Detective Corden’s testimony that all of the videotapes were recorded in the same bedroom, Atkins exposed 105 young men to the HIV virus. They’re still out there, completely oblivious to the danger.
Now the jury knew that he invaded young men’s privacy by surreptitiously filming them, solicited young men to engage in sexual conduct for money, sold drugs, recruited males whom he knew to be minors to sell drugs, and could be responsible for infecting scores of young men with a lethal disease. And we still had one more witness.
The star witness who never testified
Richard Wilson ran track. He ran everywhere he went: “I’d run just to run. I loved it,” he told me at a pretrial interview in the Human Resources room at Flower’s Bakery in Tyler. One day in the fall of 1991, he was out running, and Atkins pulled up next to him. “Do you know how to get to the Elm Street Jail?” Atkins asked.
“Yeah, you head down Main Street and turn right. You can’t miss it,” Richard replied. But Atkins didn’t seem to understand the directions. “Why don’t you get in and show me where, and I’ll take you where you need to go.” Richard got in, and they made small talk. Richard was 17; Willie was 29.
A few days later, Willie called Richard and said that he knew a girl about his age who has a daughter about Richard’s age; they should grab some beer and hang out with these girls. On the way, Atkins said that he had to change his clothes, so he drove to his house in Whitehouse. (Sounds familiar, right?)
As with so many other men, Atkins asked Richard to have a seat in the chair as he put on a porno movie. “Have you ever had a girl do that to you?” Atkins asked. A few minutes went by before Atkins reached over and touched Richard’s genitals through his shorts and asked, “Is it hard yet?” Richard jumped back and felt trapped. Then Atkins pulled a gun and told Richard, “This is going to happen whether you want it to or not.” Richard lunged at Atkins, and they fell on the gun, which Richard then grabbed and pointed at Atkins. Atkins lunged, and Richard shot him in the gut. It didn’t stop Atkins, so Richard shot him in the head, and the bullet ricocheted off of his skull. Richard tried to leave the house through the garage but couldn’t open the garage door. Atkins appeared at the door, and Richard grabbed the nearest weapon, a grubbing hoe. He hit Atkins in the face and headed back to Atkins’ truck to use the garage door opener. He got the door open and drove out, except that it was a stick shift, which Richard couldn’t drive. He drove a little way but abandoned the truck in a nearby ditch.
Richard was originally charged with attempted capital murder, but the charges were later reduced to attempted murder. He was tried by a jury and convicted. Atkins said then in a statement to the Smith County Sheriff’s Department that he and Richard were lovers and that he would give him money every now and then to help him out. Richard has always maintained that he and Willie were friends at best and vehemently denies any homosexual relationship between the two. “I had a daughter just a few months old when they sent me to prison,” he tearfully reminded me at the Flower’s Bakery interview. He served about 13 years of a 16-year sentence. “When I got out, my newborn daughter was taller than me. I lost my twenties.”
The defense objected to his testimony, arguing that the State was trying to overturn a jury’s verdict; a jury had heard Richard testify before about his self-defense claim, which they rejected; therefore, any of Richard’s testimony about the incident with Atkins would not aid our jury in assessing punishment. Defense counsel also argued that the incident was too remote in time to be relevant.
We argued in response that we were not attempting in any way to show that Richard was wrongfully convicted. We were focusing on the defendant’s conduct in trying to engage in sexual conduct with yet another young man he picked up off the street and in pulling out a gun and attempting aggravated sexual assault. Furthermore, because it happened in 1991, we could prove that Atkins’ conduct had gone on for so long that the only logical conclusion was that it would continue to go on unless he was in prison, unable to victimize any other young men in the community.
Our argument fell on deaf ears. The court disallowed any testimony from Richard Wilson. It was as if he never existed. Of course, had that incident never occurred, we may never have known about Atkins’ HIV-positive status; the medical records in State’s Exhibit 41 came from Atkins’ recovery from the gunshot wounds and blunt force trauma Richard inflicted. Even though Richard didn’t get to testify, his former accuser got what he deserved. A news camera filmed Willie as he came out of the holdover to sit at the counsel table for the punishment verdict reading. The bailiff must have tipped him off before the verdict was read because he turned to his mother, family, and pastor sitting in the gallery and mouthed the words, “I got life.”
Endnotes
1 See §43.25 Tex. Penal Code.
2 The indictment charged the offense as follows: “Unlawfully then and there, with specific intent to commit the offense of Sexual Performance of a Child and knowing the character and content of the sexual conduct, to-wit: deviate sexual intercourse and masturbation and lewd exhibition of the genitals, do an act, to wit attempt to induce X, a child younger than 18 years of age, to engage in said sexual conduct by intentionally and knowingly in the presence of said child removing defendant’s pants and fondling defendant’s groin area and talking in a sexually explicit manner to said child; said act amounting to more than mere preparation that tended but failed to effect the commission of the offense intended.”
3 539 U.S. 558 (2003)(ruling that §21.06 of the Texas Penal Code which prohibited “Homosexual Conduct” was unconstitutional).
4 692 S.W.2d 877 (Tex. Crim. App. 1985).
5 See 902(10) Tex. Rules of Evidence. The defense also objected that the records were inadmissible under HIPAA. The court overruled that objection. See 45 C.F.R. §164.501.