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02_Brandon estate of Brandon v. County of Richardson

Laux confronted Brandon regarding the position of her legs during the sexual assault by Nissen in the following manner:

How did you have your legs when he was trying to do that? Q.

He had them positioned on each side and he was positioned in between my A. legs.

You had your legs, ah, your feet up around his back or did you just have Q. them off to the sides or what?

I had one foot on the floor and the other on the seat. A.

He had you on the back seat and you had one leg on the seat the one leg up Q. up over the front seat or where?

One leg on the floor and the other just laying [sic] on the seat not on A. top of the guy.

 You had one leg on the back seat and one leg laying [sic] on the floor.  Q. Now just earlier when I asked you, you  said you had one leg up around him and one leg over the seat.

No, I didn't. A.

Yeah, because I can play it back for you. Q.

Then play it back because I don't understand it. A.

After the above exchange took place, Laux asked Brandon no further questions  The tape-recorded interview shows that about the position of her legs.  Brandon's description of the position of her legs during the rapes was in fact consistent.

The following exchange occurred when Laux questioned Brandon about Lotter's sexually assaulting her:

After he got his pants down he got a spread of you, or had spread you out, Q. and he got a spread of you then, then what happened?

When he finished he got out of the car and got back in the driver's A. door.

 First of all you Well, how did, ah, let's back up here for a second.  Q.  Did he have a hard on when he got didn't say anything about him getting it up.  back there or what?

 I didn't look. I don't know.  A.

 Did  Did he take a little time working it up, or what?  You didn't look.  Q. you work it up for him?

No, I didn't. A.

You didn't work it up for him? Q.

No. A.

Then you think he had it worked up on his own, or what? Q.

I guess so, I don't know. A.

You don't know Did, when he got in the back seat you were already spread Q. out back there ready for him, waiting on him.

No, I was sitting up when he got back there. A.

Laux questioned Brandon about her prior sexual experience in the following manner:

And you have never had any sex before? Q.

No. A.

How old are you? Q.

21. A.

And if you're 21, you think you'd have, you'd have, trouble getting it Q. in?

Who me? A.

Yeah. Q.

 He was. I guess so.  A.

Laux further asked questions regarding Brandon's gender identity crisis such as, “Do you run around once in a while with a sock in your pants to make you  At one point during the interview, the following exchange look like a boy?”  took place:

Why do you run around with girls instead of, ah, guys being you are a girl Q. yourself?

Why do I what? A.

Why do you run around with girls instead of guys beings you're a girl Q.  Why do you make girls think you're a guy? yourself?

I haven't the slightest idea. A.

 You go around kissing other girls? You haven't the slightest idea?  Q. [T]he girls that don't know about you, th  Do you inks [sic] you are a guy.  kiss them?

What does this have to do with what happened last night? A.

Because I'm trying to get some answers so I know exactly what's going on. Q.  Now, do you want to answer that question for me or not? 

I don't see why I have to. A.

Huh? Q.

I don't see why I have to. A.

 It's, this is all voluntary Olberding: You, you don't have to answer.  information.

Laux: The only thing is if it goes to court, that answer, that question is going to come up in court and I'm going to want an answer for it before it goes  I'm trying to have the answer there so we can  See what I'm saying?  to court.  try to avoid that question if it's not the answer I want to hear.

Brandon: ‘Cause I have a sexual identity crisis.

Your what? Q.

I have a sexual identity crisis. A.

You want to explain that? Q.

I don't know if I can even talk about it A.

Brandon agreed to file complaints against Lotter and Nissen and agreed to  At the conclusion of the interview, Laux told Brandon, testify against them.  “I'm not trying to make it rough on you, but I've got to have the information that we need and the only way by getting that is asking some very personal questions.”

Laux and Olberding then went to the location where Brandon claimed the rapes  At that location, they recovered two condoms, a pair of rolled-up occurred. These items were collected as evidence. socks, and a beer can.

On December 25 and 26, 1993, statements were taken from Tisdel; Gutierres; Lotter's girl friend, Rhonda McKenzie; and Tisdel's sister, Leslie Mayfield.  Each of these statements corroborated certain aspects of Brandon's account of  When Gutierres was at the sheriff's office on the events of December 25.  December 25 to give her statement, Laux again referred to Brandon as an “it” in a conversation with Gutierres.

On December 28, 1993, Nissen voluntarily went to the police station and,  after being read his Miranda rights, gave a statement to Olberding and Hayes.  Nissen admitted that he had pulled Brandon's pants down to determine her gender.  He further revealed that during an argument at his house over Brandon's lying   about her gender, he hit Brandon in the mouth and kicked Brandon in the back.  He admitted that he, Lotter, and Brandon were at the location where Brandon claimed the rapes occurred, but denied that he had sexually assaulted Brandon.

On December 29, 1993, Brandon came to the sheriff's office and identified the  The sheriff's office socks which were found at the rape scene as hers. However, requested that Brandon return that afternoon for another interview.  when Brandon arrived at the courthouse that afternoon, Lotter and Nissen, who had not yet been arrested, were outside the courthouse, and Brandon did not go  Law enforcement did not make any attempt to contact Brandon about the in.  missed interview.