REVERSAL OF MISFORTUNE

JAMES MCPHEETERS BEAT A MOLESTATION RAP, BUT WAS SENTENCED TO 561 YEARS FOR POSSESSING CHILD PORNOGRAPHY. AN APPELLATE COURT SAYS HE DESERVES A NEW TRIAL.

In January 1993, James Elmer McPheeters was sentenced to six lifetimes in prison for sexual exploitation of a minor. McPheeters owned a collection of 30 dirty magazines, two videos and a deck of obscene playing cards, all depicting children in a sexual context, and each of those items earned him 17 years, for a grand total of 561 years.

Ironically, he'd already beaten a seemingly airtight charge of child molestation, even though he'd been caught with his face in the crotch of a 5-year-old boy. Instead, McPheeters was convicted of fantasizing about kiddie sex, and the punishment doled out by Superior Court Judge Ruth Hilliard was 26 times more severe than if he had been found guilty of having sex with a child himself. A conviction for sexual molestation carries a maximum sentence of 21 years.

Last week, on September 19, the McPheeters case was reversed by the Arizona Court of Appeals and sent back to the lower court for retrial. The original trial judge, the higher court ruled, had allowed an overzealous Maricopa County prosecutor to introduce as evidence earlier allegations against McPheeters of sexual abuse, including the incident with the 5-year-old boy.

Before McPheeters was sentenced, his attorney, Morton Rivkind, wrote in a brief that ". . . the court has erred in matters of law, specifically in permitting the evidence of the Defendant's acquittal of child molestation charges to be heard by the jury. This evidence was so prejudicial and so overwhelming that the defendant probably got convicted because of those charges as opposed to the evidence before the jury."

The Court of Appeals, in an as-yet-unpublished decision, agreed.
But it's not true.
I sat on the jury that convicted McPheeters.

We, the jury, were unaware of the penalties that his offenses carried. And we were astounded--even annoyed--that the prosecutor was allowed to bring up those past accusations.

But when it came to the legal questions placed before us, there was very little disagreement. The judge had asked us to decide if the materials belonged to McPheeters, and if they depicted children younger than 15 in sexual contexts.

And the answer to both questions was an easy "Yes."

I was surprised to find myself empaneled. Lawyers don't usually like to put reporters on juries, and in this case I thought I had a sure-fire disqualifier.

I had been culled from a hundred or so prospective jurors who had been asked to fill out a lengthy questionnaire about pornography. One of the questions asked if I would keep copies of Playboy magazine in a house with small children. I have children, and, over the last ten years, I've written a number of articles for Playboy, and I said so on the questionnaire, assuming that it would get me off the jury. Instead, it got me on.

Bruce Foremny, the Glendale detective who had investigated the case, told me shortly after the trial that he had asked I be included, saying, "I figured you'd understand the difference" between what was truly obscene and what was merely erotic.

"This is a case about pictures," said deputy county attorney Laura Reckart in her opening remarks. And in Arizona, a picture is worth a thousand years. The laws covering sexual exploitation of minors do not distinguish between the pornographer and the person who looks at the pornography; they reason that both have taken advantage of the child depicted.

But this was more than a case about pictures.
Reckart is a young woman with an older woman's repertoire of courtroom facial expressions--raised eyebrows, pursed lips, ironic smiles--the kinds of faces that one might acquire quickly from working in sex crimes, as if the job speeds up the aging process.

She'd already lost one trial against McPheeters, and so her story began long before anyone knew anything about pictures. She graphically and convincingly replayed for the courtroom all of McPheeters' alleged earlier sins.

McPheeters had supposedly been caught in the act.
A young mother--we'll call her Amy--walked into the kitchen of the Glendale house where she and McPheeters both rented rooms and allegedly found McPheeters performing fellatio on her 5-year-old son. McPheeters did not deny the incident. Rather, he later claimed that the child had tried to physically force him into performing the sex act.

Why the mother had not picked up the nearest blunt object and caved in McPheeters' head may be the incident's greatest mystery.

This cast of characters seemed an improbable and incredible study in dysfunction. They would show up in court in jeans and sweat shirts and other inappropriate attire, as if they had no idea of how to comport themselves. Their histories and McPheeters' were so intertwined as to be unbelievable.

Amy was separated from her husband, but she and her little boy lived in a house with her father-in-law--who we'll call Steve.

Steve and McPheeters worked together at a west-side adult movie theatre called Pornorama. They even looked alike: the same beards, the same bellies, the same unhealthy pallor and chronic wheeze. The trial's most dramatic witness was a 20-year-old woman we'll call Karen. Karen was very pregnant, an inarticulately eloquent girl with fingers full of rings and hair tinted a violet sheen of henna.

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