St. Petersburg Times

Risking freedom to argue innocence
 
LEONORA LaPETER
 
HUDSON Earlier this month, Alisha Faulkner handed her 14-year-old son a Christmas present.
 
 Blake Zatarain sat in his mother's living room surrounded by pictures of himself growing up, awards he'd won, pictures he'd painted. Welcome home ballons clung to the ceiling, streamers hung from the walls. Blake had missed the past two Christmases.
 
 "When you went away, you were a little boy, but now you are a man and you might need that," Faulkner told her son as she handed him the present.
 
 Zatarain, a softspoken boy with short brown curly hair and brown eyes, ripped off the candy-cane wrapping paper and pulled out an electric razor. He smiled, uneasy with so much attention.
 
  For the past two years, he and his twin brother, Brett, have been winding their way through the juvenile justice system for the rape of a 19-year-old man with a disability.
 
  The twins, 12 at the time, pleaded guilty and were sent to separate sex offender treatment programs. Blake was released this month from a juvenile facility in Kissimmee; Brett is being recommended for release from one in Pahokee in May.
 
  Despite the guilty pleas, the twins have repeatedly denied they raped anyone. Blake says he was scared when he initially confessed to a detective. Even in treatment, where counselors say admitting your crime is one of the first steps to progress and eventually being released, the twins have refused to admit guilt.
 
  Now, the brothers are willing to risk their freedom to prove their innocence. They are seeking to withdraw their guilty pleas, a move that could place them right back where they started two years ago: charged with gang rape and facing a trial.
 
+++
 
  In March 2003, the twins were staying at their grandmother's mobile home in Spring Hill while Faulkner was buying a home. She had picked up the twins to take them to the Strawberry Festival in Plant City when the grandmother called Faulkner and summoned her back for an urgent family meeting.
 
  When Faulkner walked into the mobile home, the grandmother said she had just learned that for the past six weeks, Blake and Brett had been sodomizing a 19-year-old who also lived there. The victim said one twin held him down while the other violated him.
 
 That night, the grandmother called police.
 
 Just before midnight, the victim was examined at the Land O' Lakes health department. In a report, provided by the family, a nurse wrote that no physical finding either confirmed or negated allegations of sexual assault.
 
 The Pasco Sheriff's Office sent clothing and other samples off for DNA testing.
 
  At 1:15 a.m., Detective Eric Seltzer returned to his office and put the twins' names into a computer. "I . . . discovered they both had a history of being victims of sexual abuse in the past," he wrote in his report.
 
+++
 
  The next morning Seltzer knocked on Faulkner's door and asked to speak to the twins. Faulkner said she did not realize that she could be present when Seltzer questioned the twins or that the boys were free to walk away at any time.
 
 Here is Seltzer's version of what happened, according to his report:
 
  Blake got in the front seat of the officer's unmarked white car and denied the accusations. Seltzer told the boy he thought he was hiding something. Blake then mentioned that he was prone to sleepwalking and something might have happened then. Seltzer told Blake that the victim had made it clear everyone was awake. Seltzer asked him if both twins had raped the victim. Blake nodded, yes.
 
 Blake wrote out a confession, ending it with "I'm sorry, I know what I did was wrong."
 
  Brett got in the car next and said he may have accidentally touched the victim while wrestling, but denied the rape accusations.
 
  Seltzer charged the twins with sexual battery by multiple perpetrators and arrested them.
 
 A day later, Faulkner got to see Blake. The boy, usually quiet and passive, was agitated.
 
 "Why are we here?" he wanted to know.
 
+++
 
  Brett and Blake Zatarain are fraternal twins, but they're opposites. From the beginning, Brett was dominant, pulling the bottle out of Blake's hands when he was done with his. As they grew older, Brett was into football and baseball. Blake liked art and acting.
 
 Their mother, Faulkner, acknowledges their childhood was turbulent.
 
  She and their father were married but split up when the twins were 3. She had two children from another marriage, and soon the stress of raising four kids grew too much. Faulkner said she was diagnosed with bipolar disorder, and asked the two fathers of her kids to take them in. But she maintained contact.
 
  In October 2000, on the twins' 10th birthday, Blake told her that two 14-year-olds with access to the twins had been molesting him. She asked Brett about it and learned the boys had tried to molest him also, but he had fought them off. The family reported the abuse and say the teenagers were prosecuted.
 
  The twins and their mother agreed to let their names be used for this story.
 
+++
 
 Two years after Blake and Brett were victims of sexual abuse, they became the accused.
 
 Blake's case came up for trial first in September 2003. His court-appointed lawyer, Keith Hammond, moved to get his confession thrown out. Blake claimed that the officer told him he and his brother would be arrested if he didn't confess.
 
 Circuit Judge William R. Webb ruled the confession could be used in court.
 
 A month later, as the trial got under way, Webb asked if either side had considered plea negotiations. The judge pointed out that, if convicted, the boys could end up in a maximum security juvenile facility. There, the length of stay is typically 18 to 36 months but can last until the youth is 19 years old.
 
  Hammond asked for a moment to talk with Blake and his mother. Family members said Hammond and assistant public defender Judy Goldman, Brett's attorney, told them that the twins should cut their losses and plead guilty. They would be sent to less restrictive programs for treatment. They would get out sooner.
 
  Darlene Maki, the twins' maternal grandmother, wanted to know what had happened to the DNA tests on the sheets and clothes taken by the Pasco County Sheriff's Office. The lawyers told her they weren't back yet and the prosecution planned to proceed without them. There was no talk about pushing to wait for the DNA results.
 
 "We thought, what chance do we have?" Maki said. "We decided this was the lesser of two evils."
 
+++
 
  Hammond, who agreed to be interviewed with Faulkner's permission, said his decision to urge a plea was a tactical one. In his mind, the DNA results were not going to clear the twins, they were going to hurt them. They had been staying at their grandmother's house for weeks, so their DNA was going to be everywhere.
 
 Three weeks later, Brett also pleaded guilty.
 
  On Oct. 30, 2003, at Blake's sentencing, family members pleaded for leniency. Hammond, Blake's attorney, pointed out that the twins were part of a sexual abuse cycle.
 
  Judge Webb committed Blake to a "high risk" facility, still tough, but not as severe as the twins feared. In his ruling, the judge said "this may have been my most difficult case of sentencing as a judge, not just sitting on the juvenile bench."
 
 A few weeks later, Brett also was sentenced to a high-risk facility.
 
+++
 
  In June 2004, eight months after her boys began serving their sentence, Faulkner got a hold of the partially completed DNA test results. The prosecutor on the case, Paul Gionis, had stopped further testing in November 2003 after the twins were sentenced.
 
  One of the tests, a swab from the victim, showed no evidence of the twins' DNA.
 
 Semen had been found on the victim's shorts but it had not been tested.
 
  In treatment, the twins continued to deny they had hurt anyone.
 
 "Blake is not a problem, but there is a concern that he maintains his innocence and the only evidence is the word of his victim," said one November 2004 progress report. "Blake reports he was coerced into his plea for fear of worse consequences."
 
+++
 
 This past January, Blake was recommended for release. The Department of Juvenile Justice has no policy that bars inmates from being released if they don't admit their crime, although a spokesman for the agency said that factor is considered.
 
 At a February hearing, prosecutor Jesse Neyra argued Blake was not ready to be released. "I don't see how he could possibly be ready to enter the community when he and his family are denying (the crime) ever took place," he said. "The whole point of the program is to own up to what he did."
 
 Blake's new lawyer, Loren Rhoton, pointed out Blake was an honor student and had a letter from counselors saying he was at a "lower" risk of committing another sex offense.
 
 "Despite the fact that he says this didn't happen, he's demonstrated a positive attitude and he's ready to be released and he's been a role model to other peers," Rhoton said.
 
 "I understand the position of the state attorney, and it does defy common sense," Judge Webb said. But Webb said he had found research indicating it was possible for a sex offender to deny the allegation and still receive the benefits of treatment.
 
 "I have to tell you, Blake, I will feel terrible if I recommend your release and this happens again," Webb said, but "I'm going to order your release."
 
 Faulkner hugged her son, tears rolling down her face.
 
+++
 
 Brett is set to be released from his sex offender program at Pahokee in May. His mother says his facility has more kids who are violent, so Brett has struggled to protect himself in fights and has filed a complaint against staff for excessive force.
 
  Like Blake, he wants to clear his name. If the twins violate the terms of their release, they could be put back in a juvenile facility until they are 19.
 
 "I don't want to walk away, because if I didn't do it, I didn't do it," Blake said. "The truth needs to be known."
 
  Rhoton, the twins' lawyer, says he is working on a motion to get the rest of the DNA tested and to withdraw the twins' pleas. The Tampa appellate lawyer suggested the twins' lawyers should have waited for the DNA tests before urging them to take a plea. He said he's also concerned that Blake, an easily manipulated child, was questioned without his mother present.
 
  But if the twins go to trial again and are convicted, they could face more time, Rhoton said. "They've been advised of this and do want to take that risk, that speaks to me as far as their innocence," he said.
 
  The twins' paternal grandmother, who originally called police, said she still thinks they committed sexual battery.
 
 Now at home in New Port Richey, Blake is adjusting to life with his family. When he first got out, he asked for permission to go to the bathroom or get a drink of water. When he walked, he put his hands behind his back, the way he was taught in his program. He called his mother "ma'am."
 
 His family says he's like a robot.
 
 "My son came home and he's not even a boy anymore," Faulkner said.
 
Times researcher Caryn Baird contributed to this report, which was reconstructed with court records and police reports provided by the family unless otherwise indicated.

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