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Presumption of guilt 

Was Zach Higgins convicted of rape based on the evidence — or because of his past?

Editor’s note: It is CL’s policy to withhold the name of a victim of sexual assault.

The young woman was in trouble. Her father was on his way to Atlanta to pick her up and bring her back to their Fayette County home. He had just found out, through her roommate at Georgia Tech, that she’d been hanging out in her dorm room with her boyfriend. That wasn't allowed. More importantly, the woman’s family deeply disapproved of him.

Once she was back in Fayette County, the woman got into an intense discussion with her parents. They wanted to know why she continued to see someone they didn’t want her to see.

“My parents were asking me why I was acting that way,” the young woman later told a Fayette County jury. “And I just told them because I felt like I wasn’t worth anyone better. And they kept asking me why, until it finally came out.”

She told her parents that her insecurity stemmed from another boy and an incident that occurred almost three years earlier, at the beginning of her junior year at Sandy Creek High School. The two had worked together at a local pizza place, and she admittedly had a crush on him. He showed up at their house one night, while her parents weren’t home. She said at first, they were watching TV. Then, after they started kissing, he forced himself on her.

Upon hearing her story, her parents drove her straight to the police department, where she hand-wrote a statement, dated April 21, 2008, describing the events of that night in 2005:

“I told him that’s enough, he should leave, and I’ll talk to him another day,” the young woman wrote. “But he ignored me and said, ‘I’ll take my pants off, and then you.’ So he unzipped his pants and pushed them down. And that’s when I froze, and I kept telling myself there’s no way he’s going to do that.

“Then he pushed me onto the couch and took my pants off, telling me that it’s OK, that I’m going to like it, that he’s going to show me how. Then he penetrated. And I just stared the whole time and felt like I was going to throw up.”

Dylan Benson remembers the day his friend Zach Higgins, who Benson describes as “a big goofy punk-rock kid,” was charged with rape. Benson and some friends were over at Higgins’ house. Higgins wasn’t home at the time, but word traveled fast.

“We found out that he got arrested, and we were like, ‘What?’” Benson recalls. “We all thought, ‘Oh, this will blow over.’”

Benson, along with a handful of other young people who’d known Higgins in high school, were familiar with the three-year-old incident involving the young woman. But when they first heard about it, they’d been told — some of them, allegedly, from the woman herself — that what happened between Higgins, who was 17 at the time, and the woman, who was 16, was consensual.

At Higgins’ rape trial in late March, his defense relied on the testimony of four students who, like him and the victim, had attended Sandy Creek High School. The witnesses told the jury that the woman had laughed and smiled when her encounter with Higgins came up, as it sometimes did, during the ride to school from swim team practice, or in the hallway before the homeroom bell, or while sharing a music stand in orchestra class, or at the pizza place where she and Higgins continued to work after that fateful night.

Three of the four who testified went so far as to say that the woman bragged to them about having sex with Higgins.

In addition to the four former high schoolers and the young woman herself, there was only one additional witness who took the stand at Higgins’ trial, a county investigator who testified for the state. At the prosecutor’s request, Investigator Beth Suber merely read aloud from a court document that had been filed in 2002 — three years before the incident between Higgins and the young woman took place.

Suber’s testimony, Higgins’ lawyers would later claim, tore apart his defense. On March 24, Higgins was found guilty of rape and aggravated sodomy. For his crimes, the 21-year-old was sentenced to 35 years in prison without the possibility of parole.

Higgins’ trial lawyer contends that the evidence in support of his client couldn’t overcome a dark moment from his past — a prior sexual offense that the jury was allowed to consider because of a quirk in the law.

In the overwhelming majority of criminal prosecutions, a defendant’s prior convictions, history of arrests and any other unsavory acts from his past can’t be brought up at trial, because they can destroy his presumption of innocence. But under Georgia’s “bent of mind” rule, evidence of past acts can be admitted if the evidence proves the defendant has a psychological proclivity to commit a certain type of crime — anything from DUI to child molestation.

Legal analysts and several of Georgia’s Supreme Court justices believe the rule is seriously flawed.

“It is fundamental to our system of criminal justice that evidence of a defendant’s general character is irrelevant and inadmissible,” Justice Leah Sears wrote in her dissent to a 1995 ruling. Justice Carole Hunstein repeated Sears’ words in her dissent to a March 2009 ruling that upheld the use of bent-of-mind evidence in the case of a sex offender. “A jury must determine a defendant’s guilt or innocence based solely on evidence relevant to the crime charged, and not based on a belief that the defendant has a criminal character or a general propensity to commit bad acts.”

The bent-of-mind provision is particularly damaging to sex offenders, the most abhorred of all criminal defendants, says Georgia State University Professor Paul Milich, author of the Georgia Rules of Evidence handbook.

“Most jurors can’t understand why someone who has committed pedophilia is even walking the streets,” Milich says. “As soon as they hear that, the guy is as good as gone. Jurors say, ‘I don’t even care if he did this. Put him in jail. He’s a threat to my kids and the neighbors’ kids and the community.’ That’s the danger that we try to avoid.”

Steven Harris, Higgins’ trial attorney, tried to suppress the evidence of Higgins’ past offense — a child molestation charge that a juvenile court judge convicted him of when he was 14. At a hearing a month before Higgins’ trial, Harris called the past offense “something that is so fundamentally prejudicial that it really acts to deprive Zachary Higgins of a fair trial.”

But Harris failed in his attempt to keep the evidence out of court.

At Higgins’ trial, the prosecution called only two witnesses. The jurors first heard from Higgins’ accuser. She described her encounter with Higgins similarly to the way she outlined it in her 2008 statement to police.

Fayette County District Attorney Scott Ballard asked her: “What were you saying, all this time? How were you reacting?”

“I just kept saying that it wasn’t a good idea, that my parents were going to come home, that, you know, I didn’t really know what he was doing,” the woman responded. “He was just trying to calm me down, telling me it was OK. But after a while, you just … I stopped saying anything.”

She said that after briefly engaging in intercourse, Higgins ordered her to perform oral sex.

“He just tells me to put my mouth on his penis because he has to finish,” the woman said.

“Did you willfully put your mouth on his penis?” Ballard asked.


“In what way did he force you to do that?”

“He put his hand on my head, and he just said, ‘Put your mouth on my penis.’ And I figured that he wasn’t going to go away unless I did what he asked.”

During his cross-examination of the witness, Higgins’ lawyer asked the woman about inconsistencies between her trial testimony and her 2008 statement to police.

“Once he lowers his pants, what did you say?” Harris asked. “What did you do?”

“I didn’t have time to do anything,” she said. “Because at that point, he removed his pants and then removed mine.”

“Didn’t you tell the detective that you just kept telling yourself, ‘There’s no way he’s going to do that’?”

“Yes. … By the time I realized what he wanted to do, I was telling him to stop.”

“Look at your statement again. When specifically did you put in your statement that you told him to stop?”

“I didn’t put it in my statement.”

“OK. And you wound up putting in your statement that, as he was having sex with you, you just stared the whole time. … Do you remember saying that?”


“In fact, in your statement, the only time you ever say that you said ‘no’ is when he asked you a question, ‘How do you like it?’ or ‘Are you enjoying it?’”


After the woman concluded her testimony, the prosecution’s second witness, Investigator Suber, took the stand. Fayette County Superior Court Judge Johnnie Caldwell — in a comment that likely caused some confusion — gave the jurors the following instructions before allowing Suber to present evidence of Higgins’ past offense:

“You must determine whether the act was similar enough to the crime charged in the indictment that such proof of the other offense tends to prove the crime charged in the indictment, keeping in mind the limited purpose of such evidence.”

The investigator was then asked to read from a 2002 court order in which a juvenile court judge ruled that Higgins was guilty of aggravated child molestation.

“While babysitting a 4-year-old neighbor, Zachary placed his mouth on the child’s vagina, and had the child place her mouth on his penis," Suber read. "He also placed his penis on the child’s vagina and attempted to penetrate said child’s vagina. According to Zachary, these acts were committed as a form of game playing with the child.”

Suber also read portions of the order stating that Higgins “is in need of treatment and rehabilitation,” that his “risk for re-offending is low enough for him to remain in the community,” that he “should not be allowed to have any unsupervised contact” with children younger than him, and that the victim in the 2002 case “does not appear to have suffered any lasting harm from the experience.”

At that point, most criminal lawyers would agree, any defense Harris could raise would be all but meaningless.

The four witnesses called by the defense described the woman’s behavior in the months after the incident with Higgins. The woman later returned to the stand to deny that the conversations took place.

The first witness for the defense, Jill Turner, said the woman talked about Higgins several times during their morning drive from swim team practice to Sandy Creek High School. Turner described Higgins as “good looking,” “popular," as “a pretty cool guy in high school.” She also said the woman “always seemed excited about the fact that she was dating Zach or hanging out with Zach. It was never a bad thing, like ever, whenever I had a conversation with [her].”

“Did she ever brag about it?” defense attorney Harris asked her.

“Yeah,” Turner said. “I would say so.”

Another witness for the defense, Meaghan McElroy, recalled standing around in the school hallway with the victim and two other friends. “I heard her say, ‘Well, at least I lost my virginity to someone hot,’" McElroy recalled. "And my friend and I asked, 'Who?' And she said, ‘Zach Higgins.’

"She was in good spirits. She was smiling, laughing about it.”

A third witness, Brielle Terbeck, said the woman brought up Higgins’ name several times during orchestra class, where the two women shared a music stand.

“She basically told me that it was consensual,” Terbeck said.

“Did she ever … act embarrassed or ashamed?” Harris asked.

“No,” she answered. “It was more of a braggy sort of nature.”

Moments after the jury announced its guilty verdict, Higgins turned in his seat at the defense table to face his accuser.

“I didn’t do it,” he said to her, according to a story that ran the following morning in the Fayette Daily News. “You know I didn’t do it.”

During his sentencing hearing immediately following the trial, he also interjected when his mother addressed the judge. In reference to the 2002 child molestation charge, Laura Higgins said, “I fully acknowledge that seven years ago, my son made a … "

“… horrible,” Higgins called out.

“… mistake,” his mother continued, “a stupid mistake. He admitted it at the time. And we complied with everything demanded of us, everything. We were told at the time that if we did those things, that it would be sealed because it was a juvenile [case], because children make mistakes and they should be able to go on from them.”

Then it was Higgins' turn to speak.

“I especially want to direct this at [the victim’s] family,” he said at the conclusion of his sentencing hearing. “I have no anger in my heart. That’s not the way to do things. Yes, I made mistakes in my past. But I promise you with all my heart and to God himself that I am not a predator. I would never have hurt your daughter in any way. I did like her, we did have an encounter.”

He also claimed that the encounter was not commensurate with his conviction.

“I promise you I did not do this. I … I don’t know what else to say. I regret not testifying, because I’m about to go to jail for a long time for something I didn’t do.”

His sentence of 35 years does not offer the chance of parole. A convicted murderer serving a life sentence, by comparison, becomes eligible for parole after 30 years.

Less than three weeks after Higgins' trial, high-profile defense attorney Don Samuel signed onto the case. Samuel, who has experience in challenging Georgia’s bent-of-mind rule on appeal, filed a motion for a new trial on May 29. According to the document, “The defendant will raise certain claims of ineffective assistance of trial counsel as well as newly discovered evidence.”

According to an earlier motion for a new trial, filed by Harris: “The trial court committed reversible error in allowing evidence of an alleged similar transaction, and sentence, into evidence at trial.”

Samuel was not available for comment on Higgins’ case.

Milich, the GSU professor and expert on the state’s rules of evidence, says there is one peculiarity in Higgins’ prosecution. Typically, for a prior crime to be admissible under the bent-of-mind rule, it needs to be highly similar to the charge for which the defendant is on trial. Milich says that several courts have ruled that a child molestation charge isn’t similar enough to a rape charge to establish bent of mind.

“A prior sex crime should only be admitted if it really speaks to the specific sexual offense that the person is charged with,” Milich says. “It’s not any prior sex offense.”

Higgins is currently being housed at the Georgia Diagnostic and Classification Prison in Jackson, where inmates are assessed before being placed in a more permanent setting. However, Samuel has successfully requested that Higgins return to the Fayette County jail while his appeal is pending.

One possible foothold for the appeal is that, in addition to the past and present charges being dissimilar, the bent-of-mind evidence might have irreparably damaged Higgins’ presumption of innocence, which Milich calls “one of the strongest things that any of us have in our favor if we’re wrongfully accused.”

Presumption of innocence should be extended to all citizens equally, Milich says — yet it’s exceedingly difficult for juries to grant that presumption to a convicted sex offender. And to offer that protection to some defendants — but not all — can set a dangerous legal precedent.

“Presumption of innocence is at risk once the prosecution starts bringing up past conduct that’s technically unrelated to the case,” Milich says. “Then it becomes almost a presumption of guilt: Prove that you didn’t do it this time.”

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