Update: Travis Pennington was convicted of statutory rape in March, 2010. His appeal was recently filed, and a decision is expected soon. This is an update and summary of the case to date.
All of the quotes and most of the information come from the court records in Douglas County and the GA Court of Appeals.
By Dale Terry
Travis Pennington, the best young dirt racer in Georgia, now watches an occasional race on TV. He is in the Wheeler Correctional Facility in South Georgia, convicted in March 2010 of statutory rape. He was sentenced to 20 years, with 10 to be served, for sexual contact with a 12-year-old friend of his family. Pennington was 16 at the time of the contact.
The only thing Travis ever wanted to do, says an aunt, was race, and he had the genes from his father, Jack Pennington, who was inducted into the National Dirt Late Model Hall of Fame in 2006. That was also the year Travis was Rookie of the Year for the Carolina Clash dirt racing series.
His mother, Sharon Massey Pennington, is the daughter of Ed Massey, who more than 50 years ago started a short-track racing dynasty that has been a driving force in Atlanta-area racing for decades. She once reined as Miss Rome Speedway. The Massey clan continues to compete today, with the third and fourth generation of the family now taking the wheels of race cars.
A win at Rome Speedway in 2008 made Travis the youngest-ever winner in the Southern All Stars dirt series, and he’s the youngest Alabama State Champion, winning $7,000 at East Alabama Speedway. He won two major dirt track races paying $10,000 to win.
The girl, whose name has never been made public, frequently stayed days and nights at the Pennington’s house, while her mother worked, traveled, and played. The girl told investigators that her best friend was Travis’ 12-year-old brother, Tyler, and she even shared a bed with him on over-night stays. She also said “I’ve always had a crush on Travis” and “I wanted to kiss him.” She actually didn’t think much of Tyler since he had “red hair and freckles all over.”
This is a case where there has never been testimony under oath. It was investigated by Jay Hayes, an experienced investigator, but working his first teen sex case.
Hayes recorded a statement by the girl in September 2007 at the Douglas County Sherriff’s Dept., in a western Atlanta suburb. The girl detailed three sexual encounters over a seven-month period, starting with a hide and seek game, with Travis. Hayes told the girl, her mother, and her step-father that his “job is to put this guy in prison. That’s my job. I get paid good to do it. And I do, I do it a lot.”
He told them he was good. “I’m five for five in the last two months on my interviews with my suspects … they confess.”
The next day Hayes went to Alexander High School, where Travis was a well-liked senior, and a good student, and recorded his statement, which is the only time Travis has discussed the case on the record.
Almost immediately Hayes told Travis “you were a juvenile … there wasn’t anything against her will … you didn’t force yourself on her … she was flirting with you … and she was kinda doing things to you.”
Travis confirmed that they had played hide and seek, and had done “kissing with the tongue.” That triggered Hayes to produce a written Miranda warning consent form, which Travis read and signed, after Hayes confirmed that he did “understand English pretty good.” Travis had just turned 17 at the time, reaching adult status in the state, and Hayes was not required to notify the parents.
As Travis repeatedly denied anything except kissing, Hayes laid the trap: “And you had sex with her, and you used a condom, which is admirable. OK. I respect that.”
Hayes continued “OK, you used a condom both times.” Travis answered “Yes.”
Travis then repeatedly denied having sex with the girl, with Hayes falsely claiming that he had the girl’s bikini bottoms with semen stains and pubic hairs.
Unable to move the interview ahead, Hayes starts telling Travis “you’re a juvenile … you did it when you were 16 … you’re both juveniles.”
This deception leads Travis to say he had oral sex with her “Once … in the playroom” and intercourse “in the same room” and used a condom.
The only physical evidence in the case is a bikini bathing suit bottom, which the girl’s family delivered to Hayes. There was no semen found, and after a search warrant was executed to get a pubic hair sample from Travis, only a dog hair was found on the suit bottom.
At one point, the girl and her mother asked the Pennington family for $100,000 or more, and the family’s insurance actually paid $15,000.
The Pennington’s lawyer, L. David Wolfe, submitted an appeal to the GA Court of Appeals in Atlanta in March 2011, with two claims of error:
1 – The Sept. 13 schoolhouse statement, which became a “confession,” was obtained with the specific hope of a lesser sentence.
2 – The Sept. 13 schoolhouse statement was the product of an illegal arrest.
The schoolhouse statement, the confession, was made after investigator Hayes repeatedly said Travis was a juvenile, offering the hope that he would be treated as a juvenile. Courts have held that deceit and trickery are legitimate techniques in criminal investigations, but not when the deceit and trickery is intended to induce a confession by the suspect in the hope of receiving a lighter punishment. In this case, says the appeal, Hayes deliberately uses the word “juvenile,” a total misrepresentation, and minutes after Travis admitted to oral sex and intercourse, he was arrested and charged with a felony in adult court.
If Hayes did not have probable cause to arrest Travis prior to summoning him to the school’s office, everything before and after the Miranda warning may be illegal.
Lawyer Wolfe asks that the case be returned to Douglas Superior Court, and the case proceed without benefit of the schoolhouse statement.
District Attorney David McDade submitted a 42-page response to the appeal, contending that the repeated mentions by the investigator of “juvenile” didn’t offer any hope of a benefit, and there was no discussion of resolving the case in juvenile court. Both the girl and Travis, wrote McDade, made statements to Hayes admitting kissing, oral sex, and intercourse.
Douglas County, a west Atlanta suburb, grew 43% in the past decade, and is the home of one of the newest malls in the state. It’s 52.5% white, and 39.5% African-American. The County, and the City of Douglasville, have a strong and powerful governing elite, including Board of Commissioners Chairman Tom Wortham, the son of a former Mayor; Sheriff Phil Miller, in office for 29 years and the son of a Police Chief; District Attorney David McDade, the office holder for 21 years, and an assistant DA for eight previous years; and Superior Court Judge David Emerson, a 20-year veteran. The local newspaper is only a cheerleader.
The establishment is proud of the County’s legal system, and looks contempuously at Atlanta which they feel has a revolving door for criminals. Their motto might be “Fair but Tough” with emphasis on the tough shown by a 1500-bed $117 million new jail opening in two years.
Judge Emerson has decided many of the County’s most notorious cases, and filled the old jail:
– Stephen Styles, age 27, got 18 years plus probation for 10 more, for impregnating at 13-year-old
– High school sophomore Wesley Nelson is spending 20 years in jail for participating in a robbery
– Brian Isham and Spencer Grady robbed a Family Dollar Store and were captured in Atlanta after a chase. Isham is serving a life without parole sentence, and Grady is serving 18 years before parole is possible.
Judge Emerson and DA McDade were the major players in the Genarlo Wilson affair, growing from a 2003 New Year’s Eve motel party where Wilson’s oral sex with a 15-year-old was video-taped. Wilson spent two years in jail, while the NAACP, Congressional Black Caucus, ex-President Jimmy Carter, and two NY Times editorials protested the 10-year sentence for consentual sex.
The Bennett Law Firm and the “Bad Prosecutor Blog” website recognized the Ten Worst Prosecutors in the United States in 2007 to highlight abuses in the criminal justice system and rogue prosecutors, and McDade placed sixth. He played the videotape to the trial jury, and gave copies upon request to about three dozen people, including reporters, lawmakers, and several members of the public who requested it. That ended when a Federal Prosecutor said McDade might be distributing child porn.
After Wilson’s lawyer got his case into the Monroe County Superior Court, the felony conviction was reduced to a misdemeanor. The media coverage of the case prompted the passage of a “Romeo and Juliet” law, making consentual oral sex among teens a misdemeanor with no requirement for sex-offender registration.
Observers of this case have learned patience. Ten months passed before the trial transcript was completed, and a reporter’s questions finally prompted the Court Clerk to submit the paperwork to the Court of Appeals.
Now the case is in the hands of the judges in Atlanta, and a decision is expected this summer.
Travis is in a privately-owned 3000-bed prison near Alamo, GA, living in a dormitory, not a cell. It was built in 1998, is male only and medium security, and fortunately has air conditioning. There’s cable TV available, including SPEED Channel. The prison, in the Vidalia onion growing area, is nealy a four-hour drive from Douglas County, but every Friday the father, mother, and brother make the trip. They usually stay two nights in the area, and can visit Travis for several hours on Saturday and on Sunday.
If the appeal is successful, DA McDade holds all the cards including a new trial, lessor charges, or release based on time-served.
If the appeal is unsuccessful, the Pennington’s lawyer might appeal to the next higher level. In Georgia, the Governor has no clemency powers. The usual practice is for the state Parole Board to consider and grant parole after two-thirds of the 10-year sentence is completed. A work release program is also available.
Thanks for their help on this story to Rick Minter, and many friends, relatives, and fans of the Penningtons.
His current address:
Wheeler Correctional Facility
PO Box 466
Alamo, GA 30411
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