By Ray Stern
By Ray Stern
By New Times
By Amy Silverman
By Stephen Lemons
By Stephen Lemons
By Monica Alonzo
By Chris Parker
EVEN IF THE Paradise Valley police had done their job, a jury may never have convicted pro football player Marcus Cotton of raping an ASU co-ed.
As in almost all acquaintance" or date" rape cases, this one may have come down to a courtroom match between two people: The woman would have testified she hadn't consented to sex, the man would have vowed she had.
But no criminal jury will ever consider the case, in large measure because Paradise Valley's finest mangled its investigation. The department-already wracked by internal dissension and accusations of unprofessional conduct-ignored common-sense fundamentals of rape investigation, making a successful prosecution almost impossible.
Adequate police work could have helped to corroborate the young woman's allegations or to discredit them. Instead, there has been no resolution to what happened during a party at Marcus Cotton's sprawling home in the wee hours of July 6, 1991.
At the center of this story are three people: Cotton, a 240-pound linebacker with a prior history of violence toward women; a 21-year-old woman we'll call Shannon Smith," who alleges Cotton raped her at his home; and Paradise Valley police sergeant Brian McFarland, whose checkered career is the focus of civil litigation and strife inside the department.
Cotton did not respond to numerous requests by New Times for an interview. His friend, housemate and business associate Terry Hicks says Cotton denies any wrongdoing.
McFarland took over the rape investigation from a female officer soon after Shannon walked into the Paradise Valley Police Department in the early afternoon of last July 6.
From that point, the rape investigation went south.
An examination of the case reveals the Paradise Valley Police Department:
Never interviewed Marcus Cotton, even after learning of his conviction for assaulting a Cleveland-area woman. Cotton originally faced charges of rape and sexual battery in an Ohio case.
Interviewed just one of about 25 people Shannon said had attended Marcus Cotton's all-night party. The one was a girlfriend who accompanied Shannon to the Paradise Valley police station.
Didn't secure a warrant to search Cotton's house, a normal procedure.
Didn't submit the case for official evaluation by the Maricopa County Attorney's Office, though McFarland indicated on a report that he had.
Didn't advise Shannon of proper procedures for rape victims, which include medical examination and saving clothes worn at the time of the rape.
Never wrote formal departmental reports of the incident-routine in cases of this nature. Instead, the police filed Information Given" reports, a tidier and less formal way of disposing of a case.
Didn't inform Shannon about rape-crisis agencies that counsel victims. Those agencies routinely assist victims in cases similar to Shannon's.
Refused at first to release its reports of the alleged rape to the media. New Times obtained the reports from Town Attorney Charles Ollinger after he, too, initially declined to release them.
At the time, Ollinger cited a need to protect our town from potential embarrassment to a resident-a public figure-caused by releasing such sensitive and uncorroborated information."
He added, We're kind of gun-shy right now."
THE LEAST SINISTER explanation for what happened to the Marcus Cotton case could be sheer laziness. Sergeant Brian McFarland made his first error during his interview of Shannon on the afternoon of July 6. Shannon says McFarland told her she had to decide immediately whether she wanted police to fully investigate the case. McFarland's written report confirms her account.
The sergeant scared me into thinking my name would be plastered all over the papers," Shannon says. I didn't want to be involved in a big scandal. I was all shook up and tired and confused. I started to think I had made a mistake by coming forward."
Her confusion was normal, according to sex-crimes detectives contacted by New Times. National studies show a vast majority of rape victims are leery about coming forward, especially in cases where the victim knows the rapist. And, remarkably, four in five rapes are committed by men who know their victims.
Shannon says she later learned from Phoenix police detectives that she didn't have to decide immediately: Sexual assault cases often take weeks to jell.
One reason is that rape is a far easier crime to claim than to prove, especially in acquaintance-rape cases-Mike Tyson's recent conviction notwithstanding. And Shannon Smith has admitted she had consensual sex in the past with Marcus Cotton, which would have made a conviction less likely.
It may take a lot of time to sort things out," says Parma Heights, Ohio, detective Henry Franz, who investigated Marcus Cotton on rape charges there, but you have to try to make sense of what happened. You don't try to talk a possible rape victim out of anything, even if there's a one-on-one situation. That's your job."
Another piece of the Paradise Valley puzzle may be Brian McFarland's failings as a cop. A stunning affidavit filed March 17 in Maricopa County Superior Court quotes Paradise Valley police officer John Corcoran as saying McFarland habitually and routinely exhibits unprofessional and dishonest conduct while discharging his duties as a Paradise Valley police officer...He has falsified evidence in the past and continues to do so." The affidavit was filed in a civil suit brought by Phoenix private investigator Paul Huebl against McFarland and others; in it, Corcoran is not referring to the Cotton case.
McFarland declined comment to New Times. Our policy is not to have officers discuss individual cases," says Sergeant Ron Warner.
The most troubling theory about the Paradise Valley investigation attributes police failings to racism. Shannon Smith's older brother, Phil, says he was unprepared at first to look at it that way, even though his sister and Marcus Cotton are black and Paradise Valley is overwhelmingly white. (According to the U.S. Census Bureau, the population of the wealthy suburb is about 12,000. Fifteen Paradise Valley residents are black. Warner says the Cotton case is the first in memory in which one black accused another of a crime.)
Phil's talks with Brian McFarland after his sister, Shannon, allegedly was raped, however, convinced him that Paradise Valley's failure to investigate was racially motivated.
Paradise Valley police sergeant Ron Warner bristles at the accusation. This has absolutely no connection to race at all," he says. We look at things on a case-by-case basis, without regard to race."
Tell me," responds Phil, a Los Angeles-based financial planner, if she had been a little Paradise Valley princess with blond hair, blue eyes, the police wouldn't have been down Marcus Cotton's throat? I wasn't brought up to look for racism where there isn't any. But his attitude about my sister was, `She's a slut, pal.' She was just another black girl and they couldn't give a damn."
SHANNON SMITH LOOKS straight at her visitor and gets to the point. Just because you go to a party late at night with some girlfriends doesn't mean you want it. I didn't want to have sex with himÏno wayÏand I didn't lead him on, not one bit."
She has consentedÏalbeit anonymously-to tell the full story of the incident described in police reports by two agencies. At first, she practically whispers the most embarrassing parts in a monotone common to victims of violent crime.
After a time, however, she warms to her visitor and reveals an exuberant, feisty nature she says has been mostly buried since the events of last July 6. The rape-counseling sessions she's been attending for months have helped, as have her close-knit family and circle of friends.
Shannon's lawyer, Bill Moore, is preparing to sue Marcus Cotton, but Shannon insists she's not after Cotton's money. She contacted Moore just last month, after private investigator Paul Huebl-whose unrelated civil lawsuit against Brian McFarland and Paradise Valley is pendingÏheard of her story and called her.
An attractive, light-skinned black woman with a shy smile and quick wit, Shannon says she hopes to find a job in public relations after graduating from ASU next year. The youngest child of a middle-class Tempe couple with whom she still lives, Shannon describes herself as a happy person who has been trying to get my spirit back to what it was before Marcus."
She recalls meeting Cotton in mid-1990 at the Jockey Club in central Phoenix. At first, he tried to conceal his status as a pro athlete, telling her he was a sheriff from Atlanta in town visiting relatives.
She says it was weeks before she learned Cotton, not his uncle, owned the Mercedes he drove. She also learned Cotton played pro football. I know about athletes and how they act, how they use women," Shannon says. But when I met him, he seemed intelligent and he was just fun."
As the weeks went along, however, there were some disquieting signs. He'd call me from his car phone in my driveway at one in the morning," she recalls. My dad didn't like that. And when we went to a club together, he didn't like me to speak with other guys. He was extremely jealous."
One of Marcus Cotton's best friends, however, puts a radically different spin on the relationship. Terry Hicks is the principal owner of a Tempe nightspot that Cotton helped finance. She never really dated Marcus," says Hicks, who has known Shannon and her family for years. If she wanted to come over and have sex with Marcus, that was fine. She's always dated athletes, so she has a track record. To a certain extent, she's considered a slut because she sleeps around a lot."
Shannon responds bitterly when told of Hicks' remarks: It hurts and it's a lie, but I know where Terry is coming from because he's so close to Marcus. I have dated athletes and I have had relationships with athletes. But I'm a normal college girl, and Terry cannot say I was promiscuous. And the point is, I was raped."
Shannon says the last time she had consensual sex with Marcus Cotton was in July 1990, a year before he allegedly raped her. Soon after that, Cotton reported to training camp with the Atlanta Falcons. When he left, it was like, `I'll see you around' for both of us," Shannon says. I really liked him a lot when we were dating, but my heart wasn't set on him or anything close to that."
The two spoke on the telephone a few times" during the 1990 football season, Shannon says, but the romance had cooled. Still, in early 1991, she and her girlfriends attended a few parties at Cotton's home in Paradise Valley.
You have to understand, Marcus and Terry [Hicks] are key people in the black social scene," she says. He's one of the main brothers. Everybody thinks he's so cool, 'cuz he's this big athlete."
But Cotton's professional career hasn't gone as well as pundits once predicted. A star linebacker at the University of Southern California, Cotton signed with the Atlanta Falcons in 1989 for a lucrative bonus. But he didn't last long with Atlanta, and the Cleveland Browns picked him up on waivers during the 1990 season. Last year, he played for the Seattle Seahawks. He's not considered a threat to make All-Pro.
Still, the 25-year-old Marcus Cotton is a very popular guy in the Phoenix area. New Times spoke with several people who know Cotton, and the worst thing anyone had to say about him is, He can get crazy when he drinks too much." That pal adds, Marcus loves the ladies, but he's respectful of them. I don't think he'd ever do something like [Shannon] is accusing him of."
Few in Arizona, however, know that Cotton has a documented history of violence toward at least one woman. Last year, he nearly landed in an Ohio prison after an incident in the Cleveland suburb of Parma Heights, Ohio.
Police reports indicate a 20-year-old white woman complained Cotton had met her at a bar and had taken her to an apartment he shared with another Browns player. There, the woman alleged, Cotton raped her.
I tried pushing him away while he was on top of me," the woman told police. I kept telling him to stop. The harder I pushed, the more weight I had on me. I was afraid of being hurt or injured."
How the Parma Heights detectives responded differed dramatically from how Paradise Valley police handled its rape investigation six months later. In Ohio, medical people performed rape tests; detectives tape-recorded interviews with the victim and other potential witnesses; and they interviewed Cotton at length at police headquarters.
Cotton insisted there had been no sexual intercourse with the young woman, but that she had brought him to orgasm with her hands. We never had sex," he told Detective Henry Franz.
But during a lie-detector test several days later, Cotton admitted to having penetrated the woman. She placed her hands on his chest and stated, `Don't. Just stop,'" the polygraph operator wrote of Cotton's confession. Immediately after her statement, Mr. Cotton's penis penetrated her opening."
A grand jury indicted Cotton on charges of rape and sexual battery. He posted a bond of $5,000 and pleaded not guilty. In June 1991, Cotton pleaded guilty to misdemeanor assault and a judge put him on probation.
IN PARADISE VALLEY, COTTON IS KING NFL L... v4-15-92