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A South Texas jury has hit Wal-Mart Stores Inc. with a $13 million malicious prosecution verdict in a case that turned, in part, on a surveillance videotape the retailer claimed existed but could not produce. Irene Aguilera, a 31-year-old Houston mother, was arrested in 1994 and charged as part of the Mickey Mouse Gang, a group of professional shoplifters that had plagued Wal-Mart and other “big-box” retail stores in Houston and surrounding areas. The gang was dubbed Mickey Mouse after one of the members who had big ears. The gang’s usual method was to have adults distract store employees while juveniles, who were likely to be punished less severely, stole merchandise from the store. Wayne Cruickshank, an undercover Wal-Mart loss-prevention investigator, picked Aguilera out of a police photo lineup, identifying her as one of a group of four people who had stolen merchandise from a Red Rock, Texas, Wal-Mart two days earlier. At the time of the theft, Wal-Mart detained two juveniles, while two adults got away. As a result, Aguilera, who claimed she was 200 miles away in her Houston home at the time of the thefts, spent almost a month in jail before she was able to post bond. She then spent another three months on home probation, with an electronic device on her ankle, before prosecutors dismissed the charges. Represented by Jim Sharp of the Sharp Law Firm in Houston, Aguilera sued Wal-Mart and Cruickshank in 1995 in Starr County, Texas, a poor county on the Mexican border that has a reputation for high-damage verdicts. (The case would later be pursued by Aguilera’s family, after she died of complications related to scleroderma, a skin disease, in 2000.) Aguilera-Sanchez v. Wal-Mart Stores Inc., No. 95-61 (Starr Co., Texas, Dist. Ct.). ALIBI WITNESS Sharp called Aguilera’s mailman, who testified that he spoke with her on the day she was supposed to have been in Red Rock. The jury found Wal-Mart and Cruickshank liable for malicious prosecution and intentional infliction of emotional distress. In addition, they held Wal-Mart liable for negligently hiring Cruickshank. According to Sharp, Cruickshank testified that a Wal-Mart surveillance videotape, which he said he turned over to police, proved Aguilera had been in the Red Rock store when he claimed she was. But the police denied ever receiving the tape, according to Sharp, and Wal-Mart could not produce a police evidence receipt it claimed to have been given. Wal-Mart and Cruickshank were represented by Jaime A. Drabek of Drabek & Associates in Harlingen, Texas. Drabek did not return calls seeking comment on the verdict. But in court papers, Wal-Mart and Cruickshank claimed the security officer did not initiate the criminal case against Aguilera but merely participated in the photo lineup at the request of police. “After the identification, we had no further contact with her until she filed the lawsuit,” said Bill Wertz, a spokesman for Bentonville, Ark.-based Wal-Mart Stores. The defendants also claimed that charges against Aguilera were not dropped outright, but instead were dropped in exchange for a promise that she would testify against other members of the gang, which Sharp denied. In other words, Wal-Mart claimed, Aguilera’s case should never have gone to a jury. “I think we have an extremely solid case on appeal,” Wertz said. Sharp expects his clients will eventually collect, but not before a long appeals process. “If you’re the biggest gorilla in the forest, you make the rules,” he said of Wal-Mart. “At least until 12 people in the jury box tell you different.”

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