Porn Free

Why tough-talking county prosecutors freed a man facing 48 years in prison on a kiddie porn conviction

Scott Virzi's legal odyssey started in October 1992, after undercover police arrested him for buying child pornography at a Phoenix hotel.

In June 1995, a jury convicted Virzi under Arizona's unyielding Dangerous Crimes Against Children laws. Virzi--an investigator for Nevada's Gaming Control Commission when arrested--faced 48 years in prison without possibility of parole.

But he served just six months in jail before he was the beneficiary of a stunning reversal of fortune.

Last December 5, Maricopa County Superior Court Judge Mark O'Melia--without objection from county prosecutors--set aside the conviction and okayed a plea bargain that freed Virzi, 29.

The repercussions of the case still are being felt in law enforcement circles. Among the aftershocks: A respected pediatrician and child advocate is refusing to provide key expert testimony for the Maricopa County Attorney's Office in kiddie porn cases.

The woman who successfully prosecuted Virzi was admonished by her superiors, oddly enough, for playing too rough in the case. She appealed a recent evaluation, claiming supervisors unjustly downgraded her because of her alleged bullheadedness.

Arizona v. Virzi provides a study in legal improvisation, deal making, the dark side of mandatory-sentencing laws and--in the instance of the defendant's lead trial attorney--claims of incompetence.

Most of those involved--including the judge--say the decision by the County Attorney's Office to strike a deal with the convicted sex criminal, while unorthodox, was proper.

Not everyone agrees.
The turn of events outraged Dr. Kay Rauth-Farley, medical director of St. Joseph's Hospital's Child Abuse Assessment Center. She has testified as a prosecution witness at numerous trials, including Virzi's, and has impeccable credentials.

Three weeks after Virzi walked, Rauth-Farley sent a scathing letter to Maricopa County Attorney Richard Romley.

"Much to my dismay," she wrote January 5, "I have recently become aware of the fact that your office does not share my concern about persons who deal in child pornography. I am appalled at the apparent cavalier approach your office has taken toward the sexual exploitation of children. . . . It seems that your Tough on Crime Campaign has suffered a backslide in this area."

In conclusion, she told Romley, "I will no longer spend hours viewing this disgusting, degrading criminal treatment in order for your office to slap the offender on the hand and say, 'Don't do it again.'"

Those at the courthouse--judges, defense attorneys and, naturally, prosecutors--scoff at the idea that Romley's office is soft on crime against anyone, much less children. But such an allegation by someone of Rauth-Farley's stature is nightmarish for an ambitious "law and order" politician of Romley's ilk.

He's keenly aware of the beating Janet Napolitano, the U.S. attorney for Arizona, took on Capitol Hill and in the national media this past spring after she allegedly went easy on a Glendale child-porn suspect.

Ironically, the Virzi deal has won Romley's office plaudits from the most unlikely of corners.

Storied Tucson defense attorney Bob Hirsh--who praises prosecutors as often as Coke lauds Pepsi--has nothing but kudos for the County Attorney's Office in this instance. He especially lauds special-crimes chief Bill Culbertson for being receptive to his point of view. (Scott Virzi's family hired Hirsh after the June 1995 conviction.)

"The prosecution did the judicious thing," says Hirsh. "Scott had no sexual interest in children whatsoever. He didn't do anything wrong but have terrible judgment. But until cooler heads prevailed at the end, the case produced an outrageous goddamn result."

Sex-crimes bureau chief Cindi Nannetti says Hirsh raised a legitimate argument that Virzi's lead trial attorney (Arnold Weinstock) had been incompetent.

"It was the right thing to do," says Nannetti, designated as the office's sole spokesperson on the matter. "The trial judge [Mark O'Melia] was troubled by having to send Virzi away for so long, and he encouraged us to work something out."

She insists all is resolved between her office and Kay Rauth-Farley. It hasn't been: The doctor continues to stand by her comment to Romley that, because of Virzi, she will only provide her expertise in jurisdictions where prosecutors consider "child sexual exploitation . . . a more serious offense . . ."

Judge O'Melia, however, agrees with Nannetti's assessment of the case.
"Virzi was unique," says the veteran jurist. "The whole case bothered me. I didn't feel comfortable sending the guy to prison for 48 years, and I would have granted him a new trial based on ineffective assistance of counsel. I've never done that before. The prosecutors I've seen in court certainly aren't soft on kiddie porn. But I just think this one ended fairly."

However, disagreements over the disposition of Virzi continue to simmer inside the County Attorney's Office. JoAnn Garcia--who prosecuted Virzi--was removed from the case late last summer after she strongly objected to the postconviction deal.

Garcia wouldn't discuss the Virzi case with New Times, saying only that she'd been ordered not to respond to queries.

But her personnel file reveals her displeasure with the decision, and with a less-than-glowing review of her efforts in Virzi.

"What occurred, I submit, is my questioning the decision to take on the role of judge and jury versus that of prosecuting agency," Garcia wrote in a July 8 appeal of her annual evaluation. "If this office questioned the sentencing scheme, the appropriate forum to address was the Legislature. . . . I did not design or write the law, and I was merely carrying out my responsibilities as a prosecutor."

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