Arizona Criminal Law & Sex Crimes Post

Staci Lynn Barbosa and Jonathan Edward Vandergriff are accused of raping and murdering their one month old son in 2010. While the Mohave County Attorney's Office planned on seeking the death penalty against Mr. Vandergriff, they have now backed off that tactic.

As James King of the Phoenix New Times writes ("No Death Penalty For Bullhead City Couple Accused of Killing Newborn During "Brutal" Sexual Attack"): 

In the morning of June 15, 2010, police were called to Western Arizona Regional Medical Center's Emergency Room where the one-month-old baby was "fighting for his life." 

Police say they saw bruises and sores all over the baby's body and his eyes were red and swollen shut. Doctors then told police the baby had several broken ribs, a broken femur, was malnourished, dehydrated, and showed signs of sexual abuse and shaken baby syndrome.

At the time of the baby's death, Bullhead City Police Department spokeswoman Emily Montague told New Times it appeared the couple "raped" their own baby.

The story does not explicitly state why prosecutors are no longer seeking the death penalty against Mr. Vandergriff or why they never sought the death penalty against Ms. Barbosa in the first place. 

Prosecutors are not just any ordinary attorneys representing any random party. They are representatives of the people. As the American Bar Association says "a prosecutor has the responsibility of a minister of justice and not simply that of an advocate." The duty of a prosecutor is higher than any other attorney for the simple reason they have the power of the state and the people behind them. And if a prosecutor fails at his job, then then the people have failed. That is not true of any other lawyer. 

That is why the fact the Maricopa County Attorney's arrest and release of Jerice Hunter, based on "strategic reasons", is so disturbing. A prosecutor doesn't get the right to arrest anyone for any reason other than there is sufficient evidence to support that arrest. 

See my interview "Mom of missing Glendale girl released from jail" with Tim Vetscher in the videos above and the story by Deborah Stocks: 

Criminal defense attorney Vladimir Gagic tells ABC15 statements from children are typically unreliable. Gagic says Glendale Police will need to come up with forensic evidence linking Hunter to her daughter's disappearance in order to make the charges stick.

"Why did they arrest her in the first place, the evidence seemed very flimsy," asked Gagic. "Maybe they were trying to bluff so she'd confess. If that's the case, this is some shoddy police work at this point."

Overnight Joe Paterno has turned into Richard Nixon. Is that justified? Should Joe Paterno have done more than simply have reported the allegation of child molestation to his athletic director?  ("Scandal Ends Paterno's 46-Year Penn State Tenure"): 

Upon hearing of the incident from an eyewitness, a Penn State graduate assistant, Mr. Paterno reported it to school officials but not to police, according to state prosecutors. Although Mr. Paterno has not been charged in the case, Pennsylvania state police Commissioner Frank Noonan has suggested there was a "moral responsibility" to contact police about potential sexual abuse involving children.

I listen to a lot of sports talk radio and I watch ESPN all the time, and there is no shortage of critics who say Mr. Paterno should have done more, like having called the police or followed through with the athletic director on the accusation. I have even heard some people say Mike McQueary, the graduate assistant, is just as evil as Mr. Sandusky for not having directly intervened when he saw the abuse. 

A couple of points: anyone who thinks Mr. McQueary is evil is awfully self-satisfied and has a very high opinion of his own ability to act under duress. While Mr. McQueary is certianly no hero, the fact that he didn't turn into Superman doesn't mean he is anywhere as bad as Mr. Sandusky. People who are not trained to respond to these sorts of situations often fold under pressure; it just means they are human. That is why the military and police spend so much time and money in screening and training recruits to handle traumatic circumstances.  Even then, it doesn't always work. For example, see S.L.A. Marshall book "Men Against Fire", which makes the point that even well trained soldiers hesitated when first thrust into combat. Or consider the ample anecdotal evidence of citizens who refuse to help a rape victim on the street. 

With regard to Mr. Paterno, from what I understand of the story, he had known former assistant Jerry Sandusky for thirty years when Mike McQueary told him about the incident in the shower between Mr. Sandusky and a ten year old boy. And what Mr. McQueary told Mr. Paterno may have not been all that specific or detailed. I have not seen any proof or read any story that Mr. Paterno was privy to all the other evidence that Mr. Sandusky was a child molester, including the reports to Penn State University Police in 1998. Thus, the only evidence Mr. Paterno had of Mr. Sandusky's behavior was what Mr. McQueary told him. 

And while I have not read the grand jury transcripts, I have heard that Mr. McQueary testified he told Mr. Paterno all the details and specifics of what he saw. I do not believe that for a second. I believe Mr. McQueary was so shocked by what he saw, that he rationalized Mr. Sandusky's behavior and convinced himself he did not see what he thinks he saw. That is why he did not call the police right away. And when he told Mr. Paterno about it, what he told Mr. Paterno was vague and non-specific. But nine years after the fact while testifying at the grand jury, Mr. McQueary tells the grand jury he was specific about the allegations so he can protect himself by throwing Mr. Paterno under the bus.  

What that all means is that when Mr. McQueary told Mr. Paterno about what he saw, the only thing Mr. Paterno knew is what Mr. McQueary told him. After that, Mr. Paterno told his athletic director. Was it so unreasonable for Mr. Paterno to assume that if in fact the allegations were true, the athletic director would have investigated it and then have told police? Was it so unreasonable to assume that before making the most serious accusation possible against a friend he has know and worked with for 30 years, that there should be more proof than just the word of a coaching assistant? Was it so wrong for Mr. Paterno to think to himself if Mr. McQueary really saw what he says he saw, why didn't he call the police instead of just telling me the next day?

If in fact Mr. Sandusky was a pedophile, why hadn't Mr. Sandusky's wife of over 30 years had said a single word to anyone about it? After all, she would have been in the best position of anyone to have known about and reported Mr. Sandusky's behavior. Why isn't the media, that is ESPN, criticising her with the same zeal they are criticizing Mr. Paterno? She almost certainly knew what he was about and was in the best position to stop him, but she did nothing. 

My point is a simple one: I have heard far too many people say the most complimentary things about Mr. Paterno. Many Penn State football players, from all walks of life, have stated how much Mr. Paterno has changed their lives for the better. Isn't that enough to give him the benefit of the doubt? While it may be the case Mr. Paterno knowingly protected a pedophile, shouldn't there more evidence of that fact before ruining his reputation? But if he was not complicit and if he made the mistake of thinking his friend was not a monster absent more than just the vague, uncorroborated accusation of a young assistant, then his mistake was the very human one of being too trusting. 

P.S. Penn State fired Joe Paterno without even the courtesy of calling him direclty or talking to him in person. While I believe Penn State had no choice because they needed "to stop the bleeding", they could have done it in a more dignified manner. I also found a very good article called "Paterno is not at fault" by Sally Jenkins: 

Forgive Joe Paterno: When he looked at Jerry Sandusky, he didn’t see a dirty old man in a raincoat. He saw a friend, a close colleague, and a churchy do-gooder. He saw a nice guy. You’d have seen the same thing. Think not? You think you can see a clear-cut difference between an alleged child molester and a youth coach? How exactly? By the hunchback and the M-shaped scar on his forehead that says, “I’m a molester”?

One of the interesting things about child pornography charges is the assumption that only men do it. In other words, many people think that only men engage in child molestation and that women would never, for whatever reasons, have child pornography in their possession.  Well, it seems that assumption is not particularly well-founded: 

A Swedish court on Tuesday convicted 23 women and one man of child pornography offenses in what investigators called a unique case because of the number of female perpetrators...

The court said the women received scores of sexually explicit video clips and photographs of children from the man and discussed them online with him. Some said they liked the images or shared sexual fantasies about the children, and one woman sent pornographic images of children to the man, the court said.

The material showed girls and boys of various ages, from toddlers to teenagers.

(From "Sweden: 23 women convicted of child pornography")

As odd as the female involvement in this case sounds, there are two important side notes to the story. First, while the possession of pornographic images was extensive, there was no allegation or evidence that any child was actually touched. In the broader context, and as I have written before "Should Mere Possession of Child Pornography Mean Decades in Prison?", we should rethink the idea that if someone posses child pornography that automatically means they will molest children given an opportunity. That reasoning, of course, is part of the reason behind the extremely stern prison sentences for possession of child pornography in Arizona. 

That leads me to the fact the sentences in this Sweden were remarkably light in comparison to Arizona: 

The Falu District Court gave the women, aged between 38 and 70, conditional sentences and fines ranging from 2,500 to 18,000 Swedish kronor ($380 to $2,700). It also sentenced a 43-year-old man to one year in prison for aggravated child pornography.

In contrast, in Arizona every count of sexual exploitation of a minor is presumptive 10 years in prison. That is why some defendants in Arizona get decades in prison for similar conduct to this story (see "Robert Thomas Flibotte Gets 90 years in Prison for Possessing Child Porn").

So who has it right, Europe or the US? While I certainly believe incarceration rates in the United States, and in Arizona in particular, are far too high, I also think Western Europe is too soft on crime. The European justice system is too soft because it is too individualistic. It determines punishment based exclusively on the effect on the individual and not society on the whole. In other words, Europe focuses exclusively on incapacitation, reform, and deterrence of a particular defendant, but ignores general deterrence in entirety. 

For example, Norway might sentence mass murderer Anders Breivik to only 21 years in prison (Norway shootings: Anders Breivik cannot get more than 21 years- Despite his mass killing spree, the maximum sentence Anders Breivik could be handed by a court is just 21 years.) The thinking in Europe is that 21 years is enough time to reform and deter Mr. Breivik from committing crime again. But what Europe does not realize is the message it sends to the public at large: while 21 years in custody may stop Anders Breivik from committing more crime, it is no where near enough punishment to deter future Anders Breiviks from thinking "I kill 90 children, spend 21 years in prison, and then come out as a celebrity? Sounds like a good deal to me." 

There are some criminal sentences in Arizona that make no sense.  Sometimes sentences are too long and sometimes they are too short.  Usually, politicians would rather err on the side of making sentences too long because the victims of sentences that are too long do not vote.  Even worse, the media rarely takes an interest in reporting the fact too many Americans are in prison or that in many instances, Arizona's sentencing laws make no sense. 

A perfect example of the fact some of Arizona's sentencing laws are absurdly long is the case of Robert Thomas Flobotte ("Flibotte given 90 years for child porn" by Alexis Bechman of the Payson Roundup). 

A jury on July 28 unanimously found Flibotte guilty on 10 counts of possessing child pornography.  During trial, the state presented Flibotte as an avid collector of child porn, who hoarded thousands of explicit sexual images and hundreds of videos involving children, some as young as 3.

While these allegations are serious and certainly warrant criminal charges, there was no allegation that Mr. Flibotte actually touched a child.  The sentencing Judge Cahill said "he would have sentenced Flibotte to probation if the law had allowed it, but Arizona has some of the strictest child pornography laws in the U.S." Thus, Judge Cahill had no choice but to sentence Mr. Flibotte to 90 years, a sentence Judge Cahill called "clearly excessive."  

Judge Cahill is not alone in his opinion. In an editorial opinion in the Payson Roundup (Unjust system compounds terrible tragedy): "[t]he 90-year sentence imposed on Robert Thomas Flibotte for collecting child porn on his computer offers nothing but tragedy and heartache for this agonized community." 

These sorts of sentencing disasters are the result of the Arizona legislature taking sentencing discretion away from judges and imposing mandatory minimums and mandatory consecutive sentences. While even the best judges make mistakes and over the years I have had many instances where I have disagreed with a ruling, the vast majority of Arizona judges are careful, serious, and concerned. Arizona should now give our judges back the power that our democracy had given them for over a hundred years, the power to actually judge. We should trust their ability to make appropriate rulings on sentencing.

According to the National Academy of Child and Adolescent Psychiatry, about 80,000 cases of child sexual abuse are reported each year in the United States, and it is presumed that many more occur but are unreported. In court forensic psychology findings are important to determine if abuse has occurred. Knowing about why children are vulnerable to sexual abuse, the types of people who become abusers, and the outlook for victims of abuse can help in healing.

The public consensus is that most sexual crimes happen by strangers. This is actually a misconception perpetrated by the media; most offenders are either family or have some relationship with the immediate family. Also the belief that child sex offenders are likely to re-offend is also a misconception; there is a very low percentage of re-offenders and it is 25 percent lower than all other criminals.

Sexual abuse can be committed by kids and adults and because of variation in what constitutes as sexual abuse there can be a good number of false positives. While there is a high percentage of abusers who were abused as children themselves, that on its own does not predict the future. Men are almost always the offenders when it comes to child sexual abuse.

The type of person who sexually abuses children typically has a need to control another person in both body and mind. Most abusers know what they are doing is wrong but come up with denial mechanisms. Some adults find it easy to exploit a child's fears of getting into trouble or of being unloved by the people he or she cares about. As a result, abusers are able to continue victimizing a child as long as the child does not tell anyone about the abuse.

Some abusers tell the child that they will be punished for telling, or they may threaten to harm their victim's family if the child says anything to another adult. Older children may believe that their abuser is teaching them about sex or that they are in a romantic relationship with their abuser. The fact that abusers usually tell children anything to keep them quiet shows that they know the abuse is wrong.

People who were sexually abused as children sometimes become depressed and have difficulty having healthy, trusting relationships with family members and friends. Some turn to drugs for relief or become sexually active at an early age. Victims of abuse are often seen as damaged but with support from friends and family and with counseling or therapy, they can have a happy and healthy life.

Child sexual abuse is rarely an easy thing for victims and their families to work through. Abusers necessarily confuse and manipulate their victims. If abuse continues for an extended period of time, the victim can develop psychological and behavioral problems. Knowing how and why these problems developed can help families of abuse victims support their loved ones.

Regardless of which side one may belong to on the political spectrum, conservative, liberal, socialist, or moderate, every politician can agree on certain points.  The nation should be secure from foreign threats, the economy should grow, and sex trafficking is evil.  Certainly, I would hope no serious politician would disagree with any of those points.  But like any other political issue, once you have defined the problem, there could be debate about how serious the problem actually is. 

When it comes to sex trafficking, that is a problem that comes up in underdeveloped nations like in South Eastern Europe and Africa, right? Wrong, according to the Schapiro Group and Deborah Richardson, the chief program officer of the Women's Funding Network.

"An independent tracking study released today by the Women's Funding Network shows that over the past six months, the number of underage girls trafficked online has risen exponentially in three diverse states," Richardson claimed. "Michigan: a 39.2 percent increase; New York: a 20.7 percent increase; and Minnesota: a staggering 64.7 percent increase.

That story made a lot of news across the nation.  Of course, one could see why when the obvious implication of the study is that the number of underage prostitutes, and the business of underage prostitution is expanding exponentially.   This major study comes on the heels of the recent craigslist debacle in which attorneys general from across the United States forced the online classified site to remove its infamous sex ads.

But there could be serious methodological problems with the Schapiro study; that is, there is very good reason to think that is not good science, but even worse, junk science.  Bad science is science flawed because of poor methodology.  Junk science is that, but with a political motive behind the flaws.  It could also be neither bad science or junk science, just not science at all.  In other words, the reputed flaws of the study might not based on a particular bias, but just on the fact science cannot extend readily to sociological issue. That is what critics like Nassim Taleb refer to scientism, or comically, as "physics envy".   For more details on the Schapiro study and its flaws, see this article in the Phoenix New Times from writer Nick Pinto. 

The fact there is every reason to think sociology and science do not readily mix is even more reason why I hope Arizona state courts soon adopt the Daubert standard for scientific evidence, particularly in sex crimes prosecutions. 

JJ Hensley and Lisa Halverstadt of the Arizona Republic have a very important story about how the Maricopa County Sheriff's Office has botched over 400 very important, serious criminal investigations.  The investigations were botched in part because Arpiao subordinate Dave Hendershott wanted to protect a key investigator, Sgt. Kim Seagraves, who was involved in a public corruption investigation, an investigation that has gone nowhere. 

The Maricopa County Sheriff's Office failed to adequately investigate more than 400 sex-crime cases, including dozens in El Mirage, over a two-year period because of poor oversight and former Chief Deputy David Hendershott's desire to protect a key investigator from bad publicity...

Among the the allegations against Arpaio's office include: 

[R]oughly 15 death investigations, some of them homicides with workable leads, were never presented to prosecutors, and dozens of robberies and auto-theft cases never led to arrests.

[A case that was never properly investigate includes] a 15-year-old girl who said she was raped by two men outside an El Mirage shopping center and a 9-year-old who told a school counselor her grandmother's boyfriend often came into her bedroom at night, performing sex acts as she tried to sleep.

One report, on the 2005 death of Rachel Rodriguez, stood out. Arturo Hernandez Jr. emerged as a suspect in his girlfriend's murder almost immediately after her body was found. Hernandez was not arrested until long afterward, however, leaving Rodriguez's three young sons fearful.  A Phoenix detective hired by El Mirage was assigned to the case more than two years after the murder. Hernandez was finally indicted on a charge of second-degree murder last spring.

The important thing to note about this allegations is that they are not from an Open Borders advocacy group or the US Attorneys' Office or a left-leaning news organization, they are from MCSO's own internal investigation. Christina Boomer of KNXV ABC Channel 5 wrote "According to MCSO’s own internal investigation, as many as 400 sex crimes cases countywide may have been botched".  There is also a damning letter from El Mirage authorities to MCSO. 

Tammy Leitner, of KPHO Phoenix CBS 5 News had a recent story in which: 

Investigators said there is a how-to guide for pedophiles to teach them how to abuse kids, and it is putting your child in danger. Perhaps most striking, it is not illegal...

According to authoritities: 

"There are guides that are put out by sexual predators, the underground community of it if you will, but they are guides,” said John Dyck, Immigration and Customs Enforcement. “They're fairly detailed and they're fairly instructive." Read beyond the warning on the second page and you'll find step-by-step instructions on how to have sex with children. The book was authored by someone called "The Mule." And it tells predators where to prey on children -- from day care facilities to single women with children. It also teaches how to groom a child -- or gain the child's trust. The final 90 pages offer graphic details on how to molest a child.

A local doctor says the manual is dangerous and predatory: 

"The entire manual is extremely predatory in nature,” said Dr. Jennifer Geyer, a pediatrician with Phoenix Children's Hospital. “It talks about how to seek out innocent children out there -- out there on the playground and out there in the schools. It even talks about meeting single women (who) have kids and put themselves into these family situations to gain access to the children. It places the children in our society at a very high risk."

While this how to manual might not technically be illegal by itself, for all practical purposes it is illegal.  That is because there are many items that are not specifically illegal, but if you are caught with them, you will almost be certainly convicted of a crime. 

For example, it is not illegal to have a digital scale, a note book, and clear sandwich bags, but if the police find all those items on your possession, they will think that your are a drug dealer. Similarly, if any jury finds out that a defendant accused of a sex crime had this manual in his possession, that is more damning than any confession and a guilty verdict is all but assured. 

What exactly is "sexting"? Here is a good explanation from clutchmagonline: 

According to a recent survey on the parental control website parentalcontrolapps.com of all teens are sexting; 22% of girls and 18% of boys. Sexting includes sending and receiving sexual photos and text messages. It’s sex and written text colliding in a technology driven society and dubbed “sexting” that has young people moving into fast paced relationships that leave little left to the imagination.

Sexting has caught the attention of politicians: 

With sexting on the rise, parents, school officials, law enforcement agencies and legislators are scrambling to deal with the issue. Nationwide, teens have been arrested and charged with possession of child pornography for having copies of the lewd photos on their cell phones and computers.

While the State of New York is considering legislation, Arizona already has strict laws against sexting.  In particular Arizona Revised Statute, 13-3553. Sexual exploitation of a minor:

A. A person commits sexual exploitation of a minor by knowingly:

1. Recording, filming, photographing, developing or duplicating any visual depiction in which a minor is engaged in exploitive exhibition or other sexual conduct.

2. Distributing, transporting, exhibiting, receiving, selling, purchasing, electronically transmitting, possessing or exchanging any visual depiction in which a minor is engaged in exploitive exhibition or other sexual conduct.

B. If any visual depiction of sexual exploitation of a minor is admitted into evidence, the court shall seal that evidence at the conclusion of any grand jury proceeding, hearing or trial.

C. Sexual exploitation of a minor is a class 2 felony and if the minor is under fifteen years of age it is punishable pursuant to section 13-705.

ARS 13-705 has a presumptive sentence of 17 years in custody flat time. 

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In yesterday's Arizona Republic, reporter Laurie Merrill writes:

Early testimony in Susan Brock's sentence hearing set the stage for what is likely to be two vastly different portrayals of the woman who admitted to having sexual conduct with a Chandler teenage boy....In a plea deal two months ago, Susan Brock admitted to attempting to perform sex acts on the Chandler boy...She faces a presumptive sentence of 10 years on one count of attempted sexual conduct with a minor

The important thing to note about this case, other than the celebrity status of the defendant and the bizarre involvement of Ms. Brock's daughter,  Rachel Katherine Brock, in the mess, is the seriousness of sentencing in sex crimes cases.   In the eyes of the law, the most dangerous thing an adult can do to a child is not hit or point a gun at them, but touch them in a sexual manner.   This is true even if the child is a male and defendant is a women, and there is absolutely no reason to think whatsoever that the child will suffer longterm physical or mental problems as a result.  

Even more drastic, when the Court sentences someone to prison time in the Arizona Department of Corrections for a sex crime, it is flat time.  That means the defendant is not eligible for early release or for 85% time.    That comes from the notorious allegation of "Dangerous Crimes Against Children", which prosecutors allege when a felony, including sex crimes like oral sex, is committed against a child under age 15.   That same allegation also means that any defendant convicted of that allegation will not be eligible for parole, even for a first time offense. 

In the Susan Brock matter, the state, through the Pinal County attorney, and the defense are going through what is called an aggravation and a mitigation hearing.  In all felony cases, both the defense and the prosecution will have the opportunity to present evidence, just like the trial of fact phase, to convince the judge of their respective position for sentencing.  However, these types of hearing are rare and usually only happen in more serious felonies.