HOLBROOK—A Deputy Navajo County Attorney overreached during a child molestation jury trial and the Arizona Court of Appeals found the error so egregious that they reversed the conviction and the 15 year sentence of one James Mitchell Loos whom a jury had found guilty of the continuous molestation of a child in 2017.
The higher court sent the case back to the Navajo County Superior Court for “further proceedings.” That means his conviction was thrown out and for the prosecutors, it’s back to square one against the presumptively innocent Loos. Neither the court’s opinion nor the electronic county court docket identifies the prosecutor.
Loos was around 17 years old when he found himself living with many family members including a 7-year-old boy whom Loos was accused of having oral sex with and attempted anal sex. He pleaded not guilty and the case came on for jury trial, and on Dec. 4, 2017, the jury returned its guilty verdict. Loos was sentenced to 15 years in prison. He appealed the verdict to the court of appeals. On Tuesday, the court reversed and remanded the case back to the superior court, finding that the prosecutor’s actions were “improper,” and that resulted in denying Loos a fair trial.
At issue was a prosecutor’s line of questioning and his remarks during closing argument. As a general proposition, a person’s past criminal history is usually not admissible in a trial because the jury is tasked with finding the true facts of the one criminal case they are hearing and should not be influenced by whether an accused has been a good guy or not in the past. There are exceptions of course, like if a defendant decides to testify, he or she can be asked about any felony convictions they have which are less than 10 years old. Also, if a particular past crime, felony or misdemeanor, involved “a dishonest act or false statement,” the rules of court allow that to be brought out.
Because there is no such thing as trial by ambush anymore, Perry Mason style, a party who intends to use a prior conviction involving dishonesty must alert the court and the other side way beforehand of the intention to do that, so the judge can decide to allow it or not, way before a jury is called. That way, the parties don’t have to stop what they are doing in the middle of the trial so they can argue the issue with the jury languishing outside during the lawyers’ argument.
In this case, Loos had a number of misdemeanor convictions, like shoplifting, minor with alcohol, and for false reporting to law enforcement. The shoplifting and alcohol misdemeanors are entirely irrelevant to the case Loos was fighting, but the false reporting conviction is fair game, the judge ruled. When Loos took the stand, under questioning by his attorney, Loos admitted to having a misdemeanor conviction for false reporting, all in line with the court’s prior ruling on the issue. In fact, the trial transcript details the exchange as:
DEFENSE COUNSEL: Have you ever been in trouble with the law before this?
LOOS: Yes. A Misdemeanor ... for falsified information to a law enforcement.
During cross examination, the prosecutor stepped in it. Apparently believing that the witness had “opened the door,” as they say, to further inquiry, accused the defendant of perjury and had him list (without objection by Loos’ lawyer) all his prior misdemeanor convictions — exactly what the court ruled were inadmissible. The prosecutor’s point was: You said you had “A” misdemeanor conviction but you actually have more — you lied! Loos counsel did not object, so the judge didn’t have the chance do anything about it.
To make matters worse, when the evidentiary portion of the trial was over, the prosecutor argued to the jury, twice, that Loos was a perjurer and as stated, the jury returned a guilty verdict.
The court of appeals noted that, “It stretches reason to call this a ‘lie.’” Loos did not lie when he said he had “A” misdemeanor conviction, because he does, and he certainly did not affirmatively say he had no other trouble with the law. They also observed that based on the transcript, the three appellate court judges, whom are probably former prosecutors and/or defense attorneys, know of no perjury case, or of any prosecutor who would even bring a charge of perjury based on that record.
In the end, the court eloquently observed that “The prosecutor’s interest in a criminal prosecution ‘is not that it shall win a case, but that justice shall be done,’” citing a supreme court case. In this case, there was no physical evidence, and was to be decided on the credibility of two conflicting witnesses, the victim and Loos. The accusation of perjury coming from a prosecutor of all persons, whom the jury might view as someone who knows perjury when he sees it, “created a reasonable likelihood of unfairly prejudicing the jurors against Loos.”
There is no new court date set for Loos as of press time.