(Editor’s note: This is the full-length version of an op-ed that appeared in condensed form in our print edition.)
Don’t be fooled by those behind Proposition 421. This same issue was voted down less than a year ago. So why are we voting on it again?
On February 26, 2019 Navajo County Attorney Brad Carlyon spoke at a meeting of the Navajo County Board of Supervisors. At the meeting, Carlyon spoke of the need for increased funding for the County Attorney’s office. He claimed “we are in a crisis.” He stated that his office is understaffed and underpaid and that his attorneys have larger felony caseloads than attorneys in other Arizona counties. He stated that he is trying to reduce caseloads by offering more diversions and declining more cases. There has been a lot of talk around town about all the things the jail district would support. Interestingly, Carlyon spoke only of his office and his attorneys when pushing for the special election. For a full summary of what he said, the meeting minutes are available on the county website.
Let’s talk about the real question, why do Navajo County Attorneys have such large caseloads? Why have their caseloads increased so significantly over the past decade? Let me share a true story with you.
On November 20, 2017, my son, Joey Fish and classmates were dressing out for 3rd hour weights class at Snowflake High School. Seven or eight boys, including Joey, began to roughhouse and wrestle in the locker room. According to witnesses, during the melee, Joey grabbed a young man and wrestled him to the ground. According to Joey, as he was laying on top of the young man, he thought it would be funny to embarrass the young man by unbuttoning his pants. Witnesses also said they saw Joey grab the young man by the crotch outside of his clothes.
As is often the case, there are at least two sides to this story. I am not here to argue the facts of the case. What I have stated is according to statements given to police and witnesses on the stand during trial. No one is claiming that Joey’s actions were not stupid and inappropriate.
Much to our dismay, the case was assigned to Deputy County Attorney, Rob Edwards. We were aware of his reputation of being very zealous about prosecution. Joey was charged with four felony counts. Two class 2 counts of kidnapping with the intent to inflict a sexual offense. Two class 5 counts of sexual abuse. Joey was also long term suspended from Snowflake H.S. until Jan 2019.
Another young man involved in the wrestling was charged with Two class 2 counts of kidnapping with the intent to inflict a sexual offense. He was accused of holding the legs of the victim while Joey was on top of him.
About a month into his investigation of the incident, Mr. Edwards was interviewing one of the witnesses. The witness asked if he was being questioned about what happened in the locker room or what happened at Five Mile Draw. After questioning the young man further about Five Mile Draw, Mr. Edwards asked the Navajo County Sheriff’s Department to investigate.
On November 11, 2017, a group of around 50 teenagers were at Five Mile Draw for a bonfire. While there, Joey and a friend attempted to throw a rock into the bonfire from the cliff above. Multiple verbal warnings were given and everyone below moved out of the way. Unfortunately the rock hit a ledge on its way down and shattered and went in all directions. Two boys below were hit in the head. One of the boys received a large cut that required staples and both boys suffered concussions. Neither of the boys or their families wanted to press charges. They understood it was accidental.
On January 4, 2018, Joey and his friend were each charged with four class 3 felony counts of aggravated assault with a deadly weapon.
Going into litigation there were three outcomes we hoped to avoid. They were 1) prison 2) felony conviction and 3) sex offender registration. On February 8, 2018 Joey was offered a plea agreement. The agreement combined the locker room case and the rock case. The terms of the agreement were one class 5 sexual abuse felony for the locker room case for which Joey would serve 1.5 years in prison and one class 3 aggravated assault felony for which Joey would serve 5 years of probation beginning after his release from prison. He would also register as a sex offender for life and pay restitution. The other two young men who were charged in the cases were also offered plea agreements
Included with the plea agreement was this email from Mr. Edwards.
“My offer is not subject to any sort of negotiation. Your client can take the offer, or leave it. It is a rock-bottom offer. Any effort of yours to negotiate by email, phone, in person, or by any other means will automatically trigger the withdrawal of the offer. Any statement made in court or in chambers to the judge, myself, or anyone else to the effect that I am unwilling to negotiate, talk, visit, chat, or otherwise speak about nontrial resolutions different than what I am proposing will automatically trigger the withdrawal of the offer. Any statement made in court or in chambers to the judge, myself, or anyone else to the effect that my offer was tendered prior to the publication or disclosure of any defense psychosexual evaluation will automatically trigger the withdrawal of the offer.”
Our attorney, Bruce Griffen, attempted multiple times to set up a meeting with Mr. Carlyon to discuss Mr. Edwards unreasonable stance. He was informed that Mr. Carlyon was unwilling to schedule a meeting. Mr. Griffen then wrote a letter to Mr. Carlyon. The following is a piece from that letter.
“The American Bar Association, Criminal Justice Standards for the Prosecutorial Function, “....the prosecutor is an administrator of justice whose primary duty is to seek justice within the bounds of the law, not merely to convict.” Under these guidelines it is expressed that the prosecutor “serves the public interest and should act with integrity and balanced judgement to increase public safety by pursuing appropriate criminal charges of appropriate severity..."
“Most importantly is ABA standard 3 – 5.6(a). This standard directly concerns conduct of “negotiated disposition discussions”. The standard provides “the prosecutor should be open, at every stage of a criminal matter, to discussions with defense counsel concerning disposition of charges by guilty plea or other negotiated disposition". Mr. Edwards, as demonstrated, absolutely does not do that. The office, your office, suffers as a consequence. When the public finds out that the prosecutor won't even discuss the case in good faith, it injures the integrity of the system. It engenders bad will and hard feelings. Such consequences are avoidable.”
The letter also went unanswered by the County Attorney.
Because the plea agreement included all of the same outcomes that would result if Joey went to trial and lost, with the only difference being reduced terms, he decided not to accept the deal and to go to trial. We started with the rock case. It was assigned to Judge Hatch. The trial was scheduled for June 12, 2018.
As Mr. Edwards interviewed the witnesses and victims, he realized he had a very weak case. On June 5, one week before trial was to begin, Mr. Edwards went back to the Grand Jury and indicted Joey on four additional class 3 felony charges of child abuse. Child abuse requires a lower level of culpability to convict. At the time of the accident, Joey was a few weeks past his eighteenth birthday and the victims were under eighteen.
Mr. Edwards did not amend the indictment, he instead asked the court to allow all eight counts to be heard together. The judge denied the motion ruling that the defense had to have adequate time to prepare. Mr. Edwards also could have asked for a continuance to argue the charges together, but instead chose to move forward with only the original four charges.
Due to a medical emergency the case was postponed until July 16, 2018. On the first day, the state amended the indictment removing two of the four aggravated assault charges. It turns out two of the four alleged victims never received so much as a scratch and did not want to press charges.
The prosecution spent two days presenting its case. After the prosecution rested, prior to presenting any evidence, Mr. Griffen asked the judge to invoke rule 20, a directed verdict. It is a ruling entered by a judge after determining that there is no legally sufficient evidentiary basis for a reasonable jury to reach a different conclusion.
The judge agreed and Joey was acquitted because the state failed to meet its burden of proof. A directed verdict is very rare. In Mr. Griffen’s forty years of practicing law he had seen three directed verdicts.
After the trial, Mr. Griffen surveyed the jury. All ten said they would have voted not guilty.
Mr. Edwards went ahead with the second set of charges in the rock case. Because of a complaint of political bias by Mr. Edwards, Judge Hatch recused himself and the case was assigned to Judge Neilsen. Mr. Griffen argued that bringing the second case against Joey with no new facts or evidence would trigger double jeopardy. Judge Neilsen ruled that double jeopardy did not apply and the case would move forward. A month later Judge Neilsen asked the attorneys to argue the issue based on a 2019 case ruled on by the AZ Supreme Court regarding double jeopardy. After hearing the arguments, Judge Neilsen ruled that it did in fact meet the double jeopardy clause. Thankfully, Mr. Carlyon instructed Mr. Edwards not to appeal the case.
As a side note, it is my opinion that the rock case never would have been charged if the locker room case had not already been pending. It was only charged to use as leverage for the original plea deal. Joey called Mr. Edwards’s bluff and it backfired. I believe he went ahead with the second set of charges because he was embarrassed.
Mr. Edwards offered another plea deal after the rock cases were over. As part of the deal he wanted to author a letter and have Joey sign it, have it sent to all of Joey’s supporters and have it published in the White Mountain Independent. The main focus of the letter was to claim that Mr. Edwards was right all along about both cases and that Joey had lied to everyone. Professor Umbridge anyone? Unfortunately, it contained many things that just weren’t true. Joey had no problem with a true letter being published. We told Mr. Edwards that and offered an outline of the letter that Joey was willing to sign. The letter was Mr. Edwards only sticking point with the deal and he would not budge from his version.
The locker room case was also assigned to Judge Neilsen. It was scheduled to begin April 23, 2019. Due to another medical emergency and then failure to pool an adequate jury it was postponed until June 25, 2019.
The prosecution spent two and a half days presenting its case. Included among its witnesses were many of Joey’s friends, his mother, myself and two uncles. Mr. Edwards’s approach had very little to do with presenting damning evidence. He presented the body cam footage in which Joey admitted to the police that he unbuttoned the victims pants and grabbed his crotch outside of his clothes. None of the witnesses gave testimony differing from that except the victim.
Mr. Edwards would ask every witness questions about what they saw happen or what Joey had told them. They would give their response. He would challenge their response, play a recording of the response they gave during deposition, and then ask the question again. His approach seemed to be to try and make each witness look untruthful or unreliable. They all confirmed what Joey had already admitted. Mr. Edwards even presented two DNA scientists and a police officer to confirm that none of Joey’s DNA was distinguishable on any of the victim’s clothing.
The prosecution rested. The defense presented one character witness and rested. The jury found Joey not guilty on all four charges but found him guilty on two counts of the lesser and included charge of unlawful imprisonment which can be either a class 6 felony or a class 1 misdemeanor. The judge scheduled sentencing for Aug 6, 2019.
At sentencing, Judge Neilsen ruled that the charges would each be a class 1 misdemeanor. Joey was given two years probation with thirty days deferred jail time. He was given 100 hours of community service and ordered to pay restitution of $500 + 83%. Mr. Edwards argued that the judge was required to make Joey register as a sex offender. Mr. Griffen argued that it was not required and the judge agreed. Mr. Edwards read the statute and Judge Neilsen said he would research it and come back with a decision. Later that day he called both attorneys back on record and stated he had found case law that required Joey to register as a sex offender for 10 years.
Out of three cases, two were brought to trial. One was acquitted without a defense. The other saw only one defense witness. All twelve felony indictments were dismissed or acquitted.
I have not spoken to the victim or his family. I feel that I can safely assume they are not satisfied with the outcome. I have heard comments from members of the community on both sides that are not happy with the outcome. Joey was willing to take a deal that was more severe than what was determined by the judge and the jury. He even submitted a plea offer to the county attorney’s office to that effect. The county attorney’s office had no interest in negotiating a deal.
As mentioned above, both of the other two boys charged in the cases were offered plea deals. Looking back at the evidence the county produced, both undoubtedly would have beat the charges if they’d gone to court. Neither deal included prison or sex offender registration. One of the deals included a class 6 felony. That was for the rock case and definitely would have been acquitted. What did the county spend on those two convictions? Almost nothing.
Did you know that the expenditures for any criminal case are public record? I have not taken the time to request that information for the three cases filed against Joey. Frankly I don’t really care. That being said, I have some pretty close friends that work in the county courthouse. They tell me that it was probably a combined total of around $500,000. DNA scientists, multiple subpoenas, drone pictures, three jury summons, court clerks and recorders, transcriptionists, secretaries….. Let’s assume they are way off and it was only $250,000 or even $200,000. For what? Two misdemeanor convictions? How many attorney salaries could have been paid with that money?
We got lucky. Joey was released on his own recognizance after one night in jail. He completed his high school diploma through an online program and was able to work full time to earn money to pay for his attorney. Many times in cases like this the accused is held in jail until trial.
Let’s assume Mr. Edwards had in fact offered a reasonable plea offer early on that Joey accepted that included jail time, no prison, maybe some fines, community service, probation and a possible class 6 felony. Would the victim and his family have been satisfied? I don’t know. Are severe penalties the healing balm to the offended? Let me suggest a better solution that serves everyone involved.
Take a few minutes to research Restorative Justice. It is a criminal justice system gaining steam in many states. Not only does it save the system considerable money, it strengthens communities. From the website http://restorativejustice.org, “Restorative justice repairs the harm caused by crime. When victims, offenders and community members meet to decide how to do that, the results can be transformational.
It emphasizes accountability, making amends, and — if they are interested — facilitated meetings between victims, offenders, and other persons.”
When Joey was being interviewed by the police he told them he wanted to apologize to the victim. They told him it wasn’t a good idea. In the sentencing hearing, he was told he is to have zero contact with the victim and his family.
What if, from the very beginning, Joey had been required by the court to do community service that in some way benefitted the victim and his family? What if he had been required to get up in a school assembly, admit what he had done and sincerely apologize to the victim? What if he was then required to ask the surrounding school districts to allow him to do the same thing at their schools? What if he had been given probation and a fine that went directly to the victim. What if he was made to reform, not just be made to pay.
Our prison system doesn’t reform young men, it teaches them how to be criminals. Our justice system doesn’t heal or restore victims, it leaves them often times more hurt and vulnerable than when they started. Pouring more money into a broken system is not the answer.
Let’s save money and fix the failing system. Let’s develop programs that are better for the victims and the offenders.
I’m asking you not to reward bad money management and bad behavior. I’m asking you to vote No on Prop 421.