DIETRICH — In a fiery, emotional court hearing Friday, the parents of a black, mentally disabled football player stormed out when a defense attorney accused them of fabricating the sexual assault of their son to pursue a $10 million lawsuit.
John R.K Howard, 19, was sentenced in Twin Falls County District Court to three years of probation and 300 hours of community service on a charge of felony injury to a child. The judge also granted a withheld judgement, meaning the conviction could eventually be dismissed.
The victim and his family, who are also pursuing a civil case, say Howard, other football players, coaches and the school led a racist campaign of hatred against him. They have garnered support from people around the nation who see the case as a gross injustice — a slap on the wrist for a privileged white teen who preyed on a disabled teammate from the only black family in town.
But Howard and his lawyers say there was no rape or assault and claims of racism are blown out of proportion or made up entirely.
“The racist stuff, it’s not there,” Howard’s defense attorney, Brad Calbo, told the Times-News. “They’re absurd allegations ... this has all been blown out of proportion for the pursuit of money.”
New details, some made available Friday and others recently obtained by the newspaper, paint an even more complicated picture of what happened that October in a high school locker room. And both sides — the victim and his supporters, the accused and theirs — say the evidence supports their case.
Statements on tape
The central argument presented by Calbo on Friday was that a recorded conversation from May 19 showed the victim recanted his accusations and blamed the entire matter on his parents, who fed him lies in order to seek a $10 million civil lawsuit.
The conversation was recorded by football coaches Mike Torgerson and Rick Astle just six days after they were named as defendants in the civil lawsuit. Several of the victim’s friends and teammates were also present. Voices on the recording are repeatedly heard telling the victim how much they love him, and how he needs to tell the truth.
“The town of Dietrich should not have to suffer for this,” the victim said on the recording, obtained by the Times-News. “It was never my intentions. It was just all them, all my parents … I was fed lies and I said it and I signed it because I was pressured.”
Later in the recording, the victim says, “It’s always been about the money. It’s always been about the $10 million.”
And Howard and the others who were charged?
“I love those guys,” the victim said. “Those guys shouldn’t be charged, I don’t think they should, with any of that.”
The victim says in the recording he lied under oath while testifying during a court hearing. He says his father told him that once they won the civil suit, they’d move to the Bahamas.
But just last week, in a deposition taken Feb. 17, the victim takes back what he said in the recording and explains that he lied to his football coaches and friends. He told them what they wanted to hear because he wanted his friends back, he said.
“All that stuff, I just made up,” he said of the recording. “I just started telling a bunch of just lies because I wanted my friends back ... My friends were super important to me at the time ... I felt like I needed to have them, like they were going to be with me forever.”
So he went to the school to play basketball with his former friends, he testified, then started telling them what they wanted to hear.
“So you’re saying pretty much everything you said to them that day wasn’t the truth?” an attorney for the school district asked during the deposition.
“Yeah,” the victim answered.
The victim’s attorney in the civil case said it was “despicable” that the coaches made the recording.
“Can you imagine setting a meeting with a mentally disabled child?” Lee Schlender said in an interview this week. “And you take him and tell him, ‘We’re going to lose our farm, we’re all going to jail, you’ve got to do something for us.’ And recording it? … It’s despicable … I can’t think of a much sicker situation.”
The recording likely swayed the criminal case in favor of the defendants, but Schlender said “bring it on” when asked how it would affect the civil case.
“That was such a contrived, ugly thing to do to him,” Schlender said. “As he explained, he told them what they wanted to hear.”
For Howard’s attorneys, Friday’s sentencing doubled as an opportunity to clear their client’s name by putting forth an alternative version of the evidence that’s been widely reported. The native of Keller, Tex., has received the brunt of the public’s outrage because he is the only one of three defendants whose case remained unsealed to the public.
Calbo described Howard as a “respectful, God-fearing, polite young man” who has been crucified by the media and the public and wrongly accused of a heinous crime that will haunt him the rest of his life.
Tim and Shelly McDaniel, who have previously identified themselves as the victim’s adoptive parents, stormed out of the hearing during a presentation of mitigating evidence by Calbo.
The McDaniels declined to comment outside the courtroom but were visibly shaken by the proceedings. Shelly McDaniel referred to comments she made earlier in the hearing, when she said during a victim’s impact statement she “felt the plea was so unfair.”
Calbo delivered a fierce, passionate, persuasive argument, saying Howard was simply sitting on a bench after practice when the victim backed up toward him with the elbow-end of a hanger hanging from between his buttocks. Howard kicked at the victim, he and witnesses said, but did not kick the hanger on purpose and possibly did not know the hanger was there.
That version of events was first explained by Deputy Attorney General Casey Hemmer, who said the medical examination of the victim’s rectum “found no internal or external injuries.”
Hemmer clarified after Calbo’s comments that despite the victim’s comments played by Calbo in court, the victim went on to say on the recording that the locker room assault did happen.
District Judge Randy Stoker also clarified that there was an injury, despite what Calbo argued, but that Calbo’s other statements of the evidence were true and correct.
Howard pleaded guilty in December. By entering an Alford plea, he maintains his innocence while acknowledging prosecutors could have won a conviction at trial.
Although he is sentenced to probation, if he commits probation violations, Howard could serve a maximum of 10 years in prison, Stoker said.
Howard and Tanner Ray Ward, 17, were both originally charged as adults with felony counts of forcible sexual penetration with a foreign object. But Ward later pleaded his charge into juvenile court, where hearings and documents are sealed. Howard, 18 at the time of the attack, didn’t have that option even when he pleaded to a lesser felony.
A third teammate was charged from the beginning as a juvenile, and his case remained sealed.
A week before Friday’s sentencing, the victim sat inside a conference room at the Hilton Garden Inn in Twin Falls for the nearly four-hour deposition in the civil case. Schlender sat next to him, along with a mental health counselor who has treated him for years.
Across the table sat Bret Walther, an attorney for the Dietrich School District. District administrators and football coaches are accused in the civil lawsuit of ignoring months of racial harassment and abuse that culminated in the locker room attack. Behind Walther sat several of the defendants in the civil suit, including Dietrich’s head football coach, Torgerson.
Walther started his questions casually, slowly building toward the question at the heart of the civil lawsuit: Did coaches and school administrators know the victim was being bullied, abused and harassed? Did they ignore it, or even actively participate?
“One of the times I remember being in the locker room, and he was holding me,” the victim said of an incident involving the teen charged as a juvenile in the criminal case. “But it was like, he was just doing it really hard.”
After a football game, the victim was riding the team bus when several players suddenly ripped his pants off, he said.
“Like I remember like something happening, and Tanner, they kind of like just took off my pants,” the victim said. “And I was just like sitting there trying to — like covering up. They were just taking pictures, you know … I was super embarrassed and there was flashing lights … They were just kind of, just kind of laughing … And then I kind of looked forward, you know. I thought the coaches would have saw something or knew or were going to tell them to stop or something … I was just kind of like really like shocked … Upset, you know.”
Howard, other teammates and even coaches called him racist names throughout the football season, he said.
“There was just, kind of just always like racial and stuff like that, just kind of went on towards me,” the victim testified. “Like I just kind of went along with it. It really bothered me. I just kind of went on with it.”
Asked specifically about Howard, the victim said he “was wild … He just did a lot of wild things … He was out of control sometimes.”
“What kinds of things did he say that you didn’t like?” Walther asked.
“I was always hearing racial stuff from him, you know,” the victim testified, later telling of a KKK song Howard showed him at school and at a friend’s house.
“You talked about the song; anything else that he said to you that was racial?” Walther asked.
“Just a lot of different like name calling, like racial name calling, like (n——-) and stuff like that,” the victim said. “He’d be, he’d be laughing. He’d be like, ‘You stupid (n——-),’ and stuff like that … Once, I told him I didn’t like it … It hurt, you know.”
In an interview before the sentencing and deposition, Calbo categorically denied all allegations that Howard racially abused the victim in any way.
The victim in his deposition listed the racially-charged names he was called, including “watermelon,” “chicken,” “Kool-Aid” and “grape soda.”
“Did any of the coaches ever call you, any of the coaches ever call you a name?” Walther asked.
“Yeah,” the victim answered. “Kool-Aid, chicken, grape soda. Kind of just the...”
“Who called you that?” Walther interrupted.
“Almost all my coaches,” the victim said.
“All of them?” Walther questioned.
“Yeah, those were my nicknames on the team because they thought I liked it,” the victim testified. “And I didn’t. I don’t think I portrayed that, that I liked that, you know. It just kind of started because a bunch of kids started saying … stuff like that, and I was black and stuff like that.”
The victim said Torgerson offered him grape soda if he made a good play in a game, “which kind of hurt.”
“Just because I’m black, that doesn’t mean I like grape soda and watermelon,” the victim said.
The deposition was one of the last steps in the preliminary stages of the civil case, which is expected to go to trial sometime this summer, though a date has not been set. Schlender, the attorney, fully expects the case to go to trial and says there have been no settlement talks.
And according to the victim’s deposition, there’s more to the case than the $10 million damages.
The idea to sue the school, administrators and coaches was his idea, not his parents’, he testified last week. He wanted to do it “to protect people” like his autistic brother.
“I did it for people that can’t really speak up for themselves,” the victim said. “That’s why I wanted to sue the school.”