In the film adaptation of the Broadway musical, The Best Little Whorehouse in Texas, Burt Reynolds, playing a Texas sheriff, falls in love with Dolly Parton, portraying the good-natured, warm-hearted proprietor of a local brothel. That theatrical house of ill-repute was based on a real life bordello known as the La Grange Chicken Ranch.
Although many local residents supported the Chicken Ranch—and the entertainment and tax dollars it brought to Greater La Grange—its closing involved law enforcement at the highest levels of Texas government.
For those who’ve always wanted yet another sequel, we have one for you. It doesn’t have Ms. Parton, Mr. Reynolds—or even Dom DeLuise. What is does have is an intriguing question of constitutional law, which is why it gets to be our case of the week.
Texas cathouse jurisprudence now considers: Does memory loss render a witness “absent” for purposes of the Confrontation Clause of the Sixth Amendment to the United States Constitution?
Before we get to any of that legal stuff in the case of Woodall v. Texas, let’s take a look at the story of the latest little whorehouse in Texas.
Naughty Harem
Phyllis Anne Woodall may or may not have a lot in common with Dolly Parton’s Best Little Whorehouse in Texas character, Miss Mona Stangley, but Texas prosecutors alleged they were in the same profession.
Ms. Woodall was the co-owner and operator of the Naked Harem, an El Paso, Tex., establishment some would refer to euphemistically as a “gentlemen’s club.” Ms. Woodall and her business partner, Jeannie Coutta, ran a strip joint empire, El Paso Cosmopolitan, which not only operated the Naked Harem, but also its sibling club, the El Paso Cosmopolitan Topless Show Bar.
Sadly for the ladies and their clients, those Texas prosecutors thought they were having a little too much fun.
After repeated incidents of alleged prostitution at the Naked Harem, authorities arrested the ladies, charging Ms. Woodall with aggravated promotion of prostitution and engaging in organized criminal activity.
At trial, prosecutors called dancers who testified prostitution was plentiful at the club, while Naked Harem loyalists testifying for Ms. Woodall cited Naked Harem policy forbidding dancers from having sex with its gentile clientele. Ms. Woodall then called a dancer, Lucia Pinedo, to testify.
It was a bad move.
Forget Me Not
Ms. Pinedo testified she sustained memory loss after an automobile accident and that she could not remember her prior testimony before a grand jury—nor could she remember even being part of the Naked Harem. However, when Ms. Pinedo didn’t show up for a subsequent day of the trial, prosecutors—over Ms. Woodall’s objections—read her grand jury testimony for the jury.
Before the grand jury, Ms. Pinedo had testified she had sex with patrons many times in the club’s private rooms, and—in an unfortunate turn of events for Ms. Woodall—Ms. Pinedo testified that, although she lied about her age to Naked Harem staffers, she was only 15-years-old when she began dancing at the club. To make matters worse, Ms. Pinedo contradicted the testimony of one of Ms. Woodall’s managers who said Ms. Pinedo showed a birth certificate as part of her identification upon being hired.
Instead, in a moment worthy of X-rated versions of High School Musical or Glee, Ms. Pinedo testified her identification to get her job as an exotic entertainer was not her birth certificate, but was, in fact, her high school ID card.
As they did with the La Grange Chicken Ranch, the good people of Texas may turn the other cheek when it was just a bunch of adults having consenting, albeit illegal, fun—prostitution by 15-year-olds is a very different story.
After prosecutors made numerous references to Ms. Pinedo’s impressionable youth during closing arguments, the jury sentenced Ms. Woodall to 16 years in prison.
Ms. Woodall appealed, arguing, among other things, that introducing Ms. Pinedo’s grand jury testimony was a violation of Ms. Woodall’s rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution because Ms. Pindeo’s memory loss prevented Ms. Woodall from being able to cross-examine her.
Constitutional Confrontation
A Texas intermediate appellate court reversed the trial court and sided with Ms. Woodall, holding that allowing prosecutors to read Ms. Pinedo’s grand jury testimony to jurors despite her memory loss violated Ms. Woodall’s Sixth Amendment Rights because “the State used out-of-court testimonial statements [the grand jury testimony] about which the declarant [Ms. Pinedo] could not be cross-examined due to memory loss.”
The state argued also that, because Ms. Woodall refused the trial judge’s offer to issue a so-called “writ of attachment’ forcing Ms. Pinedo to return to continue her testimony, Ms. Woodall was precluded from arguing Ms. Pinedo was “absent” for Confrontation Clause purposes.
However, Ms. Woodall argued that Ms. Pinedo’s memory loss made recalling her futile, and the intermediate appellate court agreed.
“She did not remember giving the grand jury statement, nor could she remember working at the Naked Harem. A writ of attachment would not have changed Pinedo from an ‘absent’ witness into a witness ‘available for trial and examination.’ Her undisputed testimony about the car accident and resulting memory loss established that she was unavailable as a witness regarding the relevant subject matter,” the intermediate appellate court held.
Yet, in another legal twist, on Mar. 2, the Texas Court of Criminal Appeals, the state’s highest court for criminal matters, reversed the intermediate appellate court on both issues.
First, citing three U.S. Supreme Court decisions, California v. Green, Delaware v. Fensterer, and United States v. Owens, the Texas high court rejected the argument that a Confrontation Clause violation could be based on witness memory loss.
Second, Ms. Pinedo’s memory loss notwithstanding, the court held Ms. Woodall’s failure to take the trial judge up on the offer to haul Ms. Pinedo back into court was fatal to her Confrontation Clause argument. The court said Ms. Woodard “induced the alleged error of which she now complains, and she may not argue on appeal that her confrontation rights were violated.”
In the movie, Burt and Dolly went off happily into the sunset. It doesn’t look as though that’s happening here.
David Horrigan is a Washington, DC, attorney and former staff reporter and assistant editor at The National Law Journal. His articles have appeared also in Law Technology News, The American Lawyer, The New York Law Journal, Corporate Counsel, Texas Lawyer, Florida Lawyer, and Daily Business Review. E-Mail: [email protected]
