6 MONTROSE VOICE / FEBRUARY 7, 1986
Patrons Exonerated of Lewdness Charges
Arrested at Mary's
By Pete Diamond
Montrose Voice Staff Reporter
Last September 22, at approximately 2:00
a.m., four officers from the Texas Alcoholic Beverage Commission entered
Mary's bar in the 1000 block of Westheimer and arrested four people on charges of
public lewdness. The men were taken to
the county courthouse, but later transferred to the Harris County Jail where
they were made to take blood tests to determine the presence of the AIDS virus.
John Paul Barnich, an attorney representing two of the men, acknowledged that
one of his clients did indeed have AIDS.
However, a person does not lose all of his
rights when arrested, Barnich said, and
should not be made a "guinea pig" by
being made to take a blood test. Barnich
also questioned the need of the blood test
in this case, especially when AIDS test
results are generally not available for at least
Clyde Williams, the defending attorney for
the other two men, said this was the first
incident she knew of in Harris County where
an arrested person was made to take an
AIDS blood test. But as Williams
explained, much of the events surrounding the arrests and the trials of her two
clients involved "inconsistencies."
For example, one of the TABC agents
present during the arrests said no "non-
agents" accompanied the officers into
Mary's. However, TABC officers earlier
said they brought a photographer with
them (who was reported to be a friend of
one of the agents) '"in case any gang
fights occurred along Westheimer,'" Williams said.
She maintains that her clients, whohad
been living together about four and a half
years, "were having drinks with friends
... and were not engaged in any type of
sexual behavior." But TABC officers testified to the contrary, justifying their
charges that Williams' clients were
"knowingly engage(d) in an act of sexual
contact with intent to arouse and gratify
the sexual desire of (defendant) ... by rubbing his hands on the genitals of (defendant) in a public place. ..."
Noting further inconsistencies during
the trial, Williams said TABC agents were
"vague" in describing the layout of Mary's
and could not fully agree as to where the
defendants were standing in the bar when
they were arrested. In talking with jurors
following both trials, Williams said they
did not believe the agents largely because
of the numerous inconsistencies in their
State prosecuter Al Myrtle claims "it
was never an issue" whether the alleged
incident occurred or not, but says a dispute
between witnesses about what they saw
created reasonable doubt in the jurors'
minds about the guilt of the defendants.
The two separate trials Williams
defended concluded on January 28. Barnich's clients, both of whom had been tried
earlier in the month, were found guilty,
but given "lenient" probationary periods.
In both of Williams' cases, the defendants
were found not guilty, verdicts which even
Williams said surprised her somewhat.
Although she said her clients came across
as "very credible," some of the people on
the two six-member juries felt homosexuality was a sin and others were disturbed
about the nature of the case.
She added that in the second trial, Myr
tle became more determined to prove the
defendant guilty. Pictures of the leather
shop at Mary's and various items sold
there were shown to jurors. According to
Williams, one juror did not appreciate
being shown the pictures and questioned
their relevancy to the trial.
"The only reason the pictures were
shown, I felt, was to enrage and shock the
people on the jury," Williams said. Despite
this, "the jurors were still able to separate
the issues and fairly try the case."
Myrtle said while it was acknowledged
during the trial that the two defendants
were gay and that they were living
together, these factors were not an issue.
Instead, the issue was the conduct of the
men, which Myrtle said is a crime regardless of the individual's relationship to one
Until the Texas sodomy statute is
repealed, Williams advises that bar
patrons be careful about the amount of
physical contact they make with others.
TABC officers work in plainclothes and
are authorized to carry weapons, she
For a person facing charges of lewdness,
Williams said it can be an embarrassing,
stressful situation. When her clients first
approached her about handling the case,
Williams said they were "upset and distraught about the arrests and the AIDS
It's easy to plead guilty and pay a fine,
she says, but "it takes a certain amount of
moral courage" to stand up and fight the
charges. "If more people would do that, it
would help in the long run for better law
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