USING SLEDGEHAMMERS TO SWAT FLIES

THE COUNTY ATTORNEY'S OFFICE VIGOROUSLY PROSECUTES FELONY CHILD ABUSE CHARGES. EVEN WHEN NO CHILDREN HAVE BEEN ABUSED.

Six months ago, Cheryl Johnson's 2-year-old son fell into a shallow fish pond in her fianc‚'s backyard. Little Benjamin was retrieved within seconds--before he swallowed any water--wet, but otherwise fine.

Johnson is now charged with two felony counts of child abuse, and is scheduled for trial in late April.

Just over a year ago, Jason Pedigo chased an 11-year-old boy, one of a group of children Pedigo believed had repeatedly set off his truck alarm as a prank. Pedigo grabbed the boy by the collar, and demanded to know where his parents were. The boy fell down, wet his pants and was bruised.

Pedigo was charged with felony child abuse. Several weeks ago, a jury swiftly acquitted him after a three-day trial.

Neither Johnson, a 36-year-old office worker, nor Pedigo, a 21-year-old fork-lift driver, had any previous history of child abuse, or any other criminal behavior.

Neither ever imagined running crossways with the law for anything more serious than traffic tickets.

Yet each has been compelled to spend thousands of dollars and months of legal preparation to avoid becoming not just a convicted felon, but a convicted child abuser.

The two, and their defense attorneys, are unable to understand the zeal with which Maricopa County Attorney Rick Romley's office has pursued them.

The assistant Maricopa County attorneys prosecuting their cases declined requests to talk about them.

The charges have clearly upended the lives of Johnson, Pedigo and their families, and cost increasingly precious taxpayer dollars.

Johnson has quit her job and briefly relapsed into drinking. She lives in terror that her son--a precious gift conceived in vitro after years of expensive and unsuccessful fertility treatments--may be taken from her. (Johnson is not Cheryl's real last name. Fearful that she will be unable to find a job to support her son, she asked that her real last name not be published.)

Pedigo's fledgling marriage to his teenage sweetheart has almost buckled under the pressure of his legal troubles. With a felony charge hanging over his head, the young couple could not buy a house, and put off trying to have children because there was a chance he might go to prison.

These two cases are particularly outrageous, attorneys for Johnson and Pedigo say, given that the county's $20 million-plus budget crunch is forcing public attorneys and the courts to cut back on services and staff. Romley's office, they say, has spent more than a year in Pedigo's case, and six months in Johnson's case, to prosecute people who have done nothing beyond the realm of normal human behavior.

Even if the County Attorney's Office had all the time and money in the world, the defense attorneys argue, these felony charges should never have been brought.

"I don't think this case ever should have been filed," says Mike Kimerer, who is defending Johnson. "I guess they are trying to prove how tough they are."
@rule:
@body:Cheryl Johnson is up-front about it: She is a recovering alcoholic. From her teens into her mid-20s, she had a drinking problem. In 1986, she checked herself into a rehabilitation program for a month, and then underwent outpatient treatment for four months.

She stayed sober for about six years, attending Alcoholics Anonymous meetings and toeing a straight line.

And she desperately wanted to have a child.
For three years, she consulted specialists and underwent surgery and fertility treatments, spending more than $20,000. She was told there was only a one-in-1,000 chance that she would ever conceive a child.

Unsure she would ever have her own baby, Johnson underwent training and became a certified foster parent. Then one day, her first husband "just got in his truck and left," she says.

Out of options, she decided to attempt in vitro fertilization--a test-tube baby--and a man from her Alcoholics Anonymous group agreed to be the father.

The two married when Johnson was eight months pregnant, and in February 1991, brown-haired Benjamin was born. The father stayed just four months and then left her a voice-mail message saying he was leaving. Johnson has not heard from him in almost a year.

Benjamin, according to family and friends, became Johnson's life. "I think he's the only thing she's got she really cares about," says her mother, Shirley. "It's always been just Cheryl and Ben."

Jack Baker, who has known Johnson during most of the time since she dried out, says she has been a diligent and dedicated single mother. "I remember the effort she went through to get Ben," he says. "She's always been a very loving parent."

Two years ago, Johnson began dating Bob Decot, an optician who fell in love with her and her son. On their dates, Bob would sometimes down a few beers, and Johnson began to wonder if she could start drinking again, just socially.

"We'd go out dancing. I'd have a couple beers," Decot says. "Cheryl wanted to try it, to be like normal people."
It was, in retrospect, a flawed decision, Johnson now concedes.
Johnson and her fianc‚ say that she did not drink to excess, and never drank when she was caring for her son. Baker, who spoke with Johnson several times after she resumed drinking, says she was "not a falling-down drunk. She was a functioning drinker." Baker says he is satisfied that Johnson's renewed drinking never did anything to endanger her son.

But by allowing the demon back into her life, Johnson unknowingly set the stage for the evening of July 20, 1993, when a chaotic--and heated--showdown with members of her Alcoholics Anonymous group resulted in her arrest.

@rule:
@body:It was a pressure-filled July for Johnson last year. Decot had asked her to marry him and move into his house with her son. With two failed marriages behind her already, she was scared. She had a good job in the human resources department of a local company, and was unsure whether taking a third plunge was the right thing to do.

She started drinking just a little bit more.
On July 20, Johnson says, she drank about four beers before going to pick her son up at the baby sitter's. The sitter, concerned about Johnson's condition, wanted to drive mother and son to Decot's house, and Johnson agreed.

A few houses down the street from her fianc‚'s house, Johnson and the sitter changed places, so Johnson could drive her car into the driveway. She and Decot had already had several arguments over her recent drinking, and she didn't want him to know that she had been driven home.

"I didn't want Bob to know I had been drinking," Johnson admits.
In the backyard of Decot's home are a swimming pool and a small goldfish pond. Decot did not notice Johnson driving up, because he was in the pool--underwater, in fact--cleaning it.

But she had trouble unlocking the door, which had a broken deadbolt, and when Decot finally surfaced, he heard her pounding. He let her in and encountered Johnson in a very foul mood.

"She started bitching at me," Decot says. "Immediately, from her attitude, I knew she'd been drinking."
The two began arguing. Johnson was standing in the kitchen, and Decot went to a back room of the house to get her a spare set of keys.

The bizarre sequence of events that ensued in the next few minutes escalated a domestic squabble into Johnson's felony arrest.

Four members of Johnson's AA group, concerned about the recent drinking, had tracked her to Decot's house, intending to confront her about what they perceived as an unacceptable lapse from sobriety.

"We just went over there to talk to her," says Lynda Fisher, the only one of the group who would discuss what happened that night, and then only briefly. "We care about her, but we were concerned about that little boy."
The four knocked on Decot's door just as he was headed for the back room to get the spare keys. Johnson, already upset and combative, opened the door, saw who it was and slammed it. "I didn't want to talk to them," she says.

Decot, walking down the hallway back to the kitchen, heard the ruckus. Then he heard a splash. Apparently, Decot says, he had left the sliding glass door to the backyard open when he came inside to let Johnson into the house.

Ben had walked outside and fallen into the fish pond. Decot was no more than 25 feet from the pond when he heard the splash, he says, and he ran over and pulled Ben out of the foot-deep water.

The boy could not have been in the water for more than a matter of seconds, if that, Decot says. He did not require resuscitation, but did start crying after he was pulled from the water.

The AA members, meanwhile, were still trying to get Johnson to open the door. Decot finally did, and all hell broke loose.

Johnson was yelling at everyone. Decot was crying and yelling at Johnson. The AA members made Johnson come outside the house with them, where she, admittedly, belligerently told them to go away.

Johnson says she was terrified, convinced that the AA members were going to take Ben away, and there was no way she was going to let them do that. Ultimately, they locked Johnson out of the house and would not let her go back inside to see her son. Johnson went to a neighbor's house to call the police, while one of the AA members called them from inside Decot's home.

Whether the AA members should even have been at the house that evening is questionable, says Baker, who has 25 years' experience in counseling and treating alcoholics. According to Fisher, the four were attempting an informal "intervention," to force Johnson to get help for her recent drinking.

But Baker and another longtime alcohol counselor who asked that his name not be used say the intervention was botched from the outset. Such interventions, they say, should not be done on somebody's home turf, and should not occur while the person is intoxicated. That combination is a recipe for an explosive argument, which is exactly what happened.

The AA members stumbled into a bad scene, Baker and the other counselor say, and poured fuel on the fire.

"It seems to me like they were just busybodies, and they had no business being there," Baker says. "If I was Cheryl, I would try to get them charged with attempted kidnaping, because that's in essence what they did."
The cast of characters made for quite a scene when police arrived. Johnson and three of the AA members were in the driveway arguing. Decot, Ben and one AA member were inside the house. Decot, wearing only the towel he had wrapped around himself when he climbed out of the pool just minutes earlier, was himself crying and upset.

Johnson became even more scared, she says, that someone would take her son away, and refused to cooperate with the police.

Finally, after calling Johnson's mother to come get Ben, the police arrested Johnson and took her to jail.

She was charged with child abuse--based on Ben's falling into the fish pond. Police also believed she had driven her son home from the baby sitter.

Ben did not require medical treatment; he was in good enough shape that the police did not even feel it necessary to call paramedics.

Johnson was released from jail the next day and has been free since, but she has yet to free herself from the charges brought that night.

@rule:
@body:To Johnson and Decot, the police report on her arrest bears little resemblance to what actually happened that night. It starts off by saying that "friends arrived at the location to find a 2-year-old male face down in the fish pond. Intoxicated mother not supervising the child."

The "friends," however--the four AA members there to confront Johnson--were not in the house when Ben fell in the pond, says Lynda Fisher, one of the four. They were standing outside, trying to get Johnson to open the door.

The report also says that when Ben fell into the water, Johnson was "nowhere to be seen" and had let Ben wander out of her sight--a situation that is logically impossible given the layout of Decot's house.

Johnson was in the kitchen, which has a clear line of sight to the living room where Ben had been playing, as well as to the back door and the fish pond.

The report further states that both Johnson and Decot are recovering alcoholics, which is not true. Decot, a social drinker, has never been in any sort of alcohol treatment program, and has never needed one, he says.

Later, the report contradicts itself, saying that the four AA members arrived "just moments after" Decot pulled Ben out of the water.

The report also quotes Johnson's mother as telling police that "Cheryl often drinks to the point where she will lose consciousness and leave Benjamin unsupervised and unattended." Shirley Johnson says she never made such a statement to police, because it is not true.

The police report, however, became the basis of grand jury testimony, and by then the story got even worse. According to a transcript of the proceedings, the grand jury that investigated the case was told Johnson did drive her son home from the sitter's, and Decot found Benjamin "floating face down" in the water.

Johnson was quickly indicted on two counts of felony child abuse.
At worst, Johnson says, she drank too much and got into a series of arguments with her boyfriend, AA group members and police. Ben's fall into the fish pond was a split-second mishap that could happen anytime with a small child, and both she and Decot were close enough to quickly retrieve him from the pond. Ben was not injured, and his life was never in danger.

Several weeks after the incident, a caseworker from Child Protective Services visited the house to check out Johnson and her son and found no reason to pursue any action against her.

But she still lives in fear that she will lose custody of her son as assistant Maricopa County attorney Pam Hearn presses the case.

"This woman must not have children of her own," Johnson's mother Shirley says of Hearn. "She has no feelings whatsoever, no qualms about hanging this over somebody's head that 'I'm going to take your child away from you.'"
(Hearn referred a request for comment to Bill FitzGerald, a spokesman for the County Attorney's Office, who said the office would not comment on a pending case. Ironically, Hearn once worked for Mike Kimerer, Johnson's attorney.)

Johnson became so terrified of what might happen, she says, that she found herself unable to go to work some days. She would stand in the kitchen and stare out the window, afraid to leave the house.

Since her fianc‚ is a supposed witness against her, Johnson was technically barred from talking to him--even though they live together. A judge had to give her permission to speak with Decot.

Johnson was also technically not allowed to speak to her mother, another potential witness in the case. The judge, however, has also given the mother and daughter permission to speak, as long as they do not discuss the case itself.

Several weekends ago, Johnson snapped. She gave Ben to her mother, checked into a hotel and got drunk. It was, she acknowledges, a very stupid thing to do. When she drove to buy more booze, she was stopped and charged with drunken driving.

The next day, she called Decot, went home and then quit her job so she could enter an outpatient rehabilitation program. She has been in the program ever since.

At that time, Hearn was offering Johnson a plea bargain. If she would plead guilty to a Class 6 felony charge, she would receive probation and counseling. There was also the possibility that the charge would be reduced on her record to a misdemeanor, if she successfully completed her probation terms.

Although her attorney and most everyone else had urged her to fight the charge, Johnson was poised to take the plea. She'd have a record, she figured, but would be able to keep Ben.

Last Thursday, however, Johnson drew her line in the sand. Thursday morning she was scheduled to enter her guilty plea in court, but she changed her mind and is now preparing to go on trial.

Sober again, and in regular treatment, she decided she could not face her son years from now and tell him she had confessed to abusing him, when she had not.

"My heart is telling me not to give in to these people," she says.
There is always a one-in-a-million chance that a jury will convict her, Johnson says, but Hearn is going to have an uphill battle to build a credible case.

The only witnesses to what happened inside the house, when Ben fell into the water, were Johnson, Decot and 2-year-old Ben. Though he was angry at his girlfriend for drinking that evening, Decot unequivocally contends that she was not negligent in caring for Ben.

Despite the weakness of the county's case, Shirley Johnson says the ordeal has beaten down her daughter, and nearly driven her to the brink.

"It's terrorized her," Shirley says. "She fights the alcohol thing every day, and she was doing all right. But then to have this thrown on her head. I don't know how much she can take."
@rule:
@body:Jason Pedigo and his wife, Shawnie, were forced to learn how much their young marriage could take after he was charged with felony child abuse, and only now--weeks after his acquittal--can they even begin to feel the weight lift from their lives.

Pedigo and his wife were engaged in March of last year, when he was living at the Rancho Santa Fe apartments in Glendale.

The 20-year-old Pedigo had a good job with the Smith's food and drug chain. He'd started in the warehouse and worked his way up to fork-lift operator. He and Shawnie were planning their wedding.

His pride and joy was a 1991 Ford Ranger pickup, in which Pedigo had installed a $3,000, kick-ass stereo system. After installing the electronics, he had an alarm system put in to protect his investment.

Trouble with the alarm started early in 1993, according to Pedigo, Shawnie and Pedigo's former roommate. It kept going off, but only when Pedigo's truck was parked outside his apartment, and only in the evening hours.

The alarm never went off anyplace else, or at any other time of day. Pedigo concluded that someone--probably a kid being a kid--was triggering it for kicks.

On the night of March 19, it was approaching 10:30. Pedigo and Shawnie were in the apartment. Through an open window, they say, they heard voices that sounded like children. Then a thump. Then the truck alarm was blaring.

Pedigo bolted from the apartment, jumped in the truck and started driving after four children he saw running from the complex parking lot.

He stopped and chased the kids on foot. The one he caught was 11-year-old Mitchell Cole, who lived nearby.

The versions of Pedigo, the boy and the other children vary dramatically from that point on, but a jury--after listening to all of them--would ultimately take just a few minutes to decide Pedigo was telling the truth.

When he caught up with Cole, Pedigo says, he grabbed him by the shirt collar. A heavyset kid who weighs almost the same amount as Pedigo, Cole fell down, wet his pants and became upset.

"I grabbed him by the back of the shirt and kind of yanked him," Pedigo says. "The kid outweighs me, so my hand kind of twisted as he fell."
When Cole was on the ground, Pedigo says, he let go of him and then gave him a good talking to.

"I told him, 'You're going to get shot for this someday,'" Pedigo says. "I told him to watch himself, control himself and stop messing with people's things. The kid was young, and my thought was to take him to his parents."
Cole, and the three other children with him that night, told very different stories. They said they did not deliberately set off the truck alarm, although one of them may have brushed the truck accidentally.

They claimed that Pedigo almost ran them over when he chased them in his truck, then caught Cole, threw him to the ground, choked him and threatened to shoot him.

Kenneth Cole, the boy's father, says the children were "absolutely terrorized" by Pedigo and feared for their lives.

Three of the children ran to a nearby house and called the police. When Pedigo learned that, he decided to stick around and complain to the cops about what he thought the kids had done to his truck.

Shortly after police arrived, so did Cole's parents, who were furious, according to police reports.

Kenneth Cole, the father, is a psychologist who does contract work for the Maricopa County Probation Department. He insisted that Pedigo be arrested, and he was, for aggravated assault.

Initially, the charges against Pedigo were dropped in a Justice of the Peace court. But Cole continued to insist that Pedigo be prosecuted, claims Mort Rivkind, Pedigo's defense attorney.

Cole says he did not attempt to exert any undue influence on Pedigo's case, but did want to see Pedigo prosecuted.

The case went before a grand jury, which indicted Pedigo for child abuse. That struck Rivkind and Thomas Phalen, a second attorney representing Pedigo, as just plain bizarre.

Rivkind says he could find no other case where an adult was charged with child abuse when he or she "did not have care, custody or control" of the child involved.

Rivkind and Phalen spent a year firing off motions and appeals, trying to get the case against Pedigo dismissed, or at least reduced to a misdemeanor.

Pedigo concedes that, by grabbing a juvenile, he was guilty of a minor assault charge and would have pleaded guilty to one. But not a felony.

Even Kenneth Cole, the boy's father, says he believes Pedigo was overcharged. Though he adamantly believes Pedigo should have paid some price for his actions, Cole says he did not understand why the case was charged as felony child abuse.

As the case dragged on, Pedigo and Shawnie got married. They had to cut short their honeymoon to Disneyland because he was due back in town for a court hearing.

Prosecutor Dave Palmer offered Pedigo the same type of plea bargain Cheryl Johnson received in her case--a Class 6 felony that could be reduced to a misdemeanor later. Pedigo turned it down.

(Palmer did not respond to a request for comment on the case.)

"There were times I wanted to take the plea bargain just to get out of it," Pedigo says. But then, he says, he would have happened on a whole new round of trouble if the boy's parents filed a civil suit against him.

Awaiting trial, Pedigo and his wife tried to get on with their lives. But they found out that accused felons can't get mortgages, and, unable to buy a home, spent much of their early married life sleeping on a futon at his parents' house.

They argued about the case, as she worried and he tried to keep it out of mind.
"I guess it was the terror of not knowing if Jason was going to be there after all of this," says Shawnie Pedigo, a "nail technician." "I would say it probably about broke our marriage up three or four times."
As an accused felon, Pedigo could not leave the state without permission--which he obtained for his honeymoon. He could not go dove hunting, because he was not allowed to have a gun.

All of the money they had saved for a house went to the attorneys, they say. Even then, they had to borrow thousands from his parents and still couldn't pay Rivkind for all the work he did. Phalen did not charge for his time on the case, because he considered it so outrageous.

Last month, Pedigo, his wife and their families sat through his three-day trial. The jury was given the choice of convicting him of child abuse, aggravated assault or nothing.

They opted for nothing.
Acquitting on the child abuse charge took only minutes, one member of the jury said. The aggravated assault charge was discussed for about an hour before the jurors acquitted on it, too.

"We more or less couldn't understand how it did come to be a felony charge," the juror in Pedigo's case said. "We didn't see that Jason Pedigo intended to hurt the boy. He only intended to stop the boy and take him to his parents.

"I probably would have reacted very similar to what he did, which is what most normal people would have done."
Pedigo walked out of the courthouse with a feeling of relief, a sense that he has his life back--a feeling that Cheryl Johnson is still dreaming of.

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