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August 20, 2018

Texas jury convicts doctor of raping incapacitated patient ... then sentences him to probation for 10 years

It is sometimes assumed that having juries impose sentences will produce harsher outcomes, but a recent rape case from Texas provides an example of a jury imposing only a non-prison sentence after returning a guilty verdict in a rape case.  This Houston Chronicle story, headlined "Many surprised at sentence for ex-Baylor doctor who raped a Houston hospital patient." Here are some of the details:

When a former Houston doctor was sentenced to probation Friday for raping an incapacitated patient at a county hospital, the punishment surprised defense attorneys, disappointed law enforcement, elicited concern from a rape victims advocacy group and sparked outrage on social media.

The doctor, who has been stripped of his license, admitted during the trial that he had sexual contact with the woman during the night shift at Ben Taub Hospital in 2013, but told jurors it was consensual. Although he was not assigned to her case, he slipped into her room anyway after he noticed her breast implants....

The jury five women and seven men sentenced Dr. Shafeeq Sheikh, a former Baylor College of Medicine resident, to 10 years on probation for raping the patient while she was tethered to machines and receiving treatment for an acute asthma attack.

The jurors found Sheikh guilty Thursday after deliberating for 14 hours over two days.  The conviction means Sheikh, 46, must be a registered for the rest of his life as a sex offender. Jurors recommended the 10-year probated sentence for the doctor and suspension of a $10,000 fine after deliberations on Friday, recommendations that visiting Senior District Judge Terry L. Flenniken was required by law to follow.

During argument for the sentencing phase of the trial Friday, Assistant District Attorney Lauren Reeder asked jurors to keep in mind that Sheikh exploited his access to harm a vulnerable person. “He sought her out. He chose her to prey on,” Reeder said, noting that Sheikh checked the woman’s chart and knew exactly what medicines she had been prescribed. “You know he’s the type of man who would go in multiple times, testing the waters, seeing how far he could go and get back to his normal business after that.”...

Sheikh’s defense lawyer, Stanley Schneider, asked the jury to have mercy on a man whose wife and children had suffered greatly from his actions and who had been punishing himself for five years for this one shameful, erratic act. He said he hoped they would sentence Sheikh, who has no prior felonies, to probation. “The dreams of a man, the childhood dream to become a doctor, were shattered by his conduct. He destroyed his own dreams,” Schneider said. “What he has done to himself and his family is punishment. They are serving his sentence with him. His children are serving his sentence with him.”...

Prosecutors respect the process that rendered the result, said Dane Schiller, a spokesman for District Attorney Kim Ogg. “After being presented all the evidence, the jury convicted this man of rape and decided that he should be sentenced to 10 years of probation,” Schiller said. “The jury voted on behalf of the community to determine his sentence, and although prosecutors sought prison time, we respect this process, and the jury’s decision, which carries with it a lifetime of registering as a sex offender.”...

Both the victim, who is now 32, and the former doctor took the stand during the eight-day trial, providing contradictory accounts of what happened the night of Nov. 2, 2013. The victim said a doctor came to her bedside in the dark and began touching her breasts during a chest exam. She said she was weak, sore and confused, and tried to summon a nurse with the call button. The man returned two more times, and raped her without using a condom.

Sheikh said the patient took his hand and placed it on her breasts. He was intrigued by her breast implants and returned to her room again. At this point, he testified, she began touching his genitals and demonstrated with her body language that she wanted to have sex with him. He said he knew it was a breach of his marriage vows and the Hippocratic oath, but he succumbed to his impulse. He told jurors he understood that it was consensual sex....

One factor that could have impacted what some saw as a lenient sentence was the testimony from his wife, brother and family friends, who spoke about his vital role as the father of four children. Attorney Paul Schiffer, a former prosecutor who has devoted more than four decades to defending people charged with sex offenses, said he thought Sheikh was fortunate.  “Defendants who take the stand and deny they’re guilty statistically are in a worse position to get probation,” Schiffer said. “But various factors, including their history while on bond and the impact incarceration could have on their own children can be a significant factor.”

He and Kiernan, who also defends people accused of rape, said it also may have been the case that jurors had residual doubt about his culpability. Kiernan suggested there was another important factor jurors may have mulled over. “The real question is whether the best interest of the defendant and society are served by sentencing him to the penitentiary,” he said.

In trying to understand this outcome, I wonder if the jury might also have been influenced by the fact that the defendant here is subject to a lifetime on the sex offender registry.  (I assume Texas law allows the jury to be informed of this fact; judges certainly know this fact when deciding on a sentence in a serious sex offense case.)

August 20, 2018 at 06:16 PM | Permalink


Stupid jury. The jerk re-victimized here with BS testimony.

Posted by: federalist | Aug 20, 2018 7:18:52 PM

Texas's system of jury sentencing is fascinating to me as a federal practitioner. I'm sure many of my clients would fare way better being sentenced by a jury, since most federal prosecutions are for nonviolent or victimless offenses (e.g., drugs, felon in possession, illegal re-entry). Does anyone know if Texas requires unanimous sentencing verdicts?

Posted by: Anon AFPD | Aug 20, 2018 7:37:36 PM

Yes, unanimous verdict for both guilt and sentencing. Chapter 37, Tex. Code. Crim. Pro.

Posted by: Fat Bastard | Aug 20, 2018 11:09:06 PM

This is a shocking verdict when you consider that there are over 900,000 of our citizens on the registry now. Most of them having been incarcerated. I know of a mom with 4 children whose husband was convicted of possession. He is now serving 5 years. In her letter to the judge before her husband's sentencing,she tells the judge how much she needs her husband and their children need their father. Her closing remarks were...I ask you judge what did I do wrong? What did I do to have my children's father taken away from them and now I have to raise them and care for them as a single mother?
Most judges in our nation simply don't care of the collateral damage they inflict of the offender's family.

Posted by: tommyc | Aug 20, 2018 11:13:43 PM

Doug's probably all good with this. Long time ago, and I can't find the thread (or I just don't care enough to spend that much time), Doug challenged me on sentencing law and pointed out that sentencing was to be tied to minimum amount necessary to protect society. (of course, there's much more to it than that, and Doug had to be called out). Here, this guy is unlikely to re-offend. And his family needs him. So, all good, right Doug?

Posted by: federalist | Aug 21, 2018 6:52:19 AM

I did not hear all the evidence in this case, federalist, so I am disinclined to disagree with a unanimous jury verdict without a lot more information (including information about what the victim might have urged for the sentence). As I recall, federalist, you were inclined to defend the short jail term given in the Bock Turner case, in part because he is subject to lifetime sex offender registration. Are you less supportive of this sentence because it was imposed by a jury, whereas a judge handed down the Turner sentence? I thought you did not trust judges, but it seems you do not trust juries either. Do you trust anyone's sentencing judgment other than your own?

More generally, I do think utilitarian risk/public safety concerns provide a more sound and sensible metrics for sentencing decisions than vague (and more readily biased) concepts of dessert, especially in hard cases involving less clear victims (e.g., drug dealing, white-collar offenses).

I recognize that lots of people feel that retributivist justice has to be a central part of every aspect of our criminal justice system (especially in cases with tangible victims), and most sentencing systems include laws that call for incorporating retributivist concerns. Paul Robinson has a classic article arguing that we actually best achieve public safety ends if/when people believe that we are mostly concerned with just desserts.

I prefer to focus on public safety because when I think really hard and seriously about what retributivist commitments really seem to mean --- particularly any version committed to equal justice and to trying to ensure nobody avoids getting punished as much as they deserve --- it seems extraordinarily hard to pursue retributivism in a principled way within a functioning criminal justice system that has limited resources and also cares a lot about public safety. Some of Adam Kolber's scholarship does a nice job highlighting how hard it is to be a principled retributivist when you really think hard about the challenges of a dessert-based punishment system: https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=95874

Posted by: Doug B | Aug 21, 2018 9:39:14 AM

So many clients serving time for sex assaults. And this is worse by far. A doctor raping a sedated patient. As did the California case, this one cries out to the Texas legislature for the enactment of a mandatory minimum sentence.

Posted by: Dave from Texas | Aug 21, 2018 10:49:36 AM

As normal, I have a different take. This sentence in the article struck me. "the jury voted on behalf of the community to determine his sentence, and although prosecutors sought prison time, we respect this process, and the jury’s decision, which carries with it a lifetime of registering as a sex offender.” That quote is from the prosecutor.

Eliminate the last clause. It's as if in the prosecutor's mind sex offender registry is the consolation prize, as it if they are saying to themselves, "well we didn't get the criminal version of prison but we got the civil version of prison so that's better than nothing."

That is not how the sex offender registry was sold to the public. It was sold under the theory of "stranger danger". It is difficult to comprehend how this doctor is a danger to anyone other than a patient. And I can't help but wonder if jury's knew this. That perhaps one of the major reasons they did not send him to prison is because they knew he would have to register for life. If that intuition is correct, it would be more damning evidence of how the registry has gone astray from its intended purpose.

Posted by: Daniel | Aug 21, 2018 2:03:25 PM

@federalist writes, " Here, this guy is unlikely to re-offend."

But if that is the case he shouldn't be on the registry at all. So the question I would pose to federalist is this. If given the choice in this case between (1) a term of years sentence and no registry vs (2) no term of years sentence and a life-time on the registry, which would you chose and why?

Posted by: Daniel | Aug 21, 2018 2:09:04 PM

Great points Daniel.

Posted by: Fat Bastard | Aug 21, 2018 5:32:42 PM

Also, the "intended purpose" of the registries was to satiate a bloodthirsty, vengeful public that knows little to nothing about crime, and even less about "sex crimes," but is soaked to the gills in crime TV. And more importantly to get votes for family values Republicans! Yay (I used to be one, Republican anyway, not so much the family values type).

The "not-a-punishment," but merely a prophylactic, was a post-hoc, disingenuous meme contrived for litigation purposes.

The federal sex offender act is named after the kid of a celebretard for God's sake. Not to unduly disparage Mr. Walsh or his tragically deceased son, but come the frick on.

Posted by: Fat Bastard | Aug 21, 2018 8:12:46 PM

The guy got a life sentence, what more could be asked for?

TODAY ... individually identify "people" who support the $EX Offender Registries ($ORs) and do anything you can that is legal to lower the quality of their lives. Do the same to their spouses and children. That is what they have their $ORs for. So the same needs to be done to them. Remember that they are not Americans. They are not people for whom us decent people need have concern. Identify them and their families. Neutralize, ostracize, and marginalize them. Let the hate flow. MAGA. Ha ha ha ha ha ha! Friggin eh.

Posted by: FRegistryTerrorists | Aug 30, 2018 1:28:22 PM

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