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.

The next morning we reconvened and got down to the charges at hand. There was little to discuss. McPheeters was guilty of all charges, but, just to make sure, we took another half-hour or so and went through each and every magazine, then called the bailiff and filed back into the courtroom. The deed was done.

Last week, after I heard that McPheeters' conviction had been overturned, I tracked down some of the other jurors to make sure that my recollections were accurate. Regarding the prior allegations, one of them, JoAnn Barnard, said, "I thought that if it didn't pertain to what was going on right then, they should have left it out of [the trial]. The man wasn't actually physically abusing anyone at the time."

Barnard claims that she had some questions about McPheeters' guilt, but voted with the majority to avoid a hung jury.

Another of the jurors, Finley Jones, felt more sure about the unanimity of the decision.

"I recall there were some discussions about his history," Jones says, "but I'm not sure that played such an important role in everyone deciding his guilt. That wasn't what the conviction was about."
When we had pondered McPheeters' guilt in the jury room, none of us had the slightest inkling as to the severity of the punishment he would receive; we assumed it would be a lesser sentence than that for child molestation. We had to read it in the newspapers to find otherwise.

"I saw that little blurb in the paper about his sentence--my jaw went to the floor!" says juror Barnard. "He supposedly committed a crime that's worse than rape or murder? That's stupid."
Shortly after the sentencing, I received a philosophical letter from Edward Krawczak, the Sun City retiree who had been the jury foreman. Krawczak had attended the sentencing.

"On the way home, I thought about the severity of the sentence," he wrote, "when a person guilty of second-degree murder gets only ten years. I got over this when I recalled the testimony of the young woman whose life was ruined by being abused over a period of ten years. I felt thoroughly absolved when I recalled the judge's instructions: The juror's sole responsibility is to determine whether the defendant is guilty beyond all reasonable doubt. The sentence is the responsibility of the judge and as specified by law."
I, on the other hand, felt a great weight from having sent a man to jail for five and a half centuries for looking at obscene pictures. I would have no second thoughts about sending him there for child molestation. And even though I felt he was guilty of both offenses, he had only been convicted for the one.

Actions may speak louder than words, but they do not speak louder than pictures. Whether McPheeters committed an abusive act against any child was apparently a matter of one unsavory witness's word against another's. The pictures, however, were irrefutable.

Last September, the Arizona Court of Appeals set free a young man named Douglas Gates, who had been convicted of sexual exploitation of a minor for clandestinely videotaping his young Sunday-school students while they changed clothes ("An Obscene Loophole," December 1, 1994). Although Gates clearly had photographed the children for his own sexual gratification, the judge noted that the videos did not depict children in sexual contexts; they were merely changing clothes, and that did not constitute lewd and lascivious behavior as the statute required.

In his reasoning for the Gates reversal, Appeals Judge E.G. Noyes Jr. wrote that bad intent is not illegal, however reprehensible the intent might be.

"We disagree with this argument to the extent that it rewrites the statute into one that criminalizes aberrant thoughts without regard to whether the film or photograph produced by those thoughts depicts any minors in sexual conduct," he wrote.

In the McPheeters case, the prosecution brought up his past sexual misconduct to show, as stated in early briefs, his "ongoing propensity to commit sexually aberrant acts."

"Our purpose was in demonstrating his intent in possessing it," recalls prosecutor Laura Reckart. In other words, to show that he might use the materials to seduce children. In fact, he had shown young Karen the pictures in the book Show Me, a 1970s coffee-table book that was supposed to teach children about sex, but has since been judged obscene itself.

The rest of McPheeters' pornographic materials had only been discovered because McPheeters had been arrested on suspicion of child molestation. And so Reckart reasoned that the earlier behavior "completed the story." Judge Hilliard of the Superior Court apparently agreed. The higher court did not agree.

In a line of thinking similar to his Gates decision, Judge Noyes wrote of McPheeters, "Possession of sexually exploitative material is dissimilar in nature to an act of child molestation. There is a substantial difference between viewing a book or videotape on a subject and actually performing the depicted act."

Morton Rivkind, the attorney who defended McPheeters in Superior Court, thinks that Reckart overtried the case.

"If she had just gone on with the materials and the expert saying, 'These children [in the pictures] are under such and such an age,'" Rivkind points out, "if you were a juror--especially not knowing the penalty he was facing--you would say, 'I don't buy that he sold this stuff,' and that would have been it. It was a simple case, and they made it complicated."
In retrospect, Reckart concedes that she may have gone too far.
"When you look at the case itself, it looks like a slam dunk," she says. "But then, so does the case he was acquitted of prior to that."
The decision by the judge to admit those prior acts in testimony, the decision by the prosecution to hammer at them, according to the Appeals court, ". . . might have aggravated it by giving this jury a silent message to make sure that the Appellant did not 'get away with it' in this trial."

Although I think that may indeed have been the prosecution's "silent message," I'd like to think we saw through it. And I'd like to believe--despite the unfairness of the sentence--that we sent James McPheeters to jail on the basis of the law.

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