Porn Free

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

The word "attempt" was pivotal: Legally, it meant Scott Virzi could escape the long, mandatory sentences that afford Arizona prosecutors great leverage in plea negotiations.

Weinstock later said he knew Virzi was facing essentially a life sentence if convicted. But he said he felt confident of his chances at trial.

"I told Scott I felt all along it was a very defensible case," Weinstock told Bob Hirsh in a taped July 1995 interview. "For a person of Scott's position, it was a situation to where you don't want a young person to have a felony rap on his record. . . . I explained to him that it was his decision and his call totally. Scott indicated to me that he wanted to go to trial."

In part because of scheduling complications, Virzi's trial was delayed for two years after he rejected the plea bargain.

In May 1995, even as a jury was being chosen, prosecutor Garcia offered Virzi a new, slightly tougher plea bargain. This time, he'd have to serve one year in jail, then lifetime probation.

Again, Virzi and his attorneys rejected the offer.
On May 30, 1995, Virzi's kiddie porn trial began in Judge Mark O'Melia's courtroom.

It was one thing for Scott Virzi's lead attorney to think he had a fighting chance to win an acquittal.

But Arnold Weinstock apparently did little legwork to develop Virzi's two possible defenses: entrapment and the theory that Virzi had been working in an official capacity when arrested in Phoenix.

Nor did the defense find an expert to rebut the testimony of expert witness Kay Rauth-Farley. The pediatrician had spent hours examining the pornographic photos and videotapes Virzi had bought.

She was prepared to testify that the young victims were under the age of 15, important because that would meet the requirements of Arizona's laws regarding sexual exploitation of children.

JoAnn Garcia's opening statement was concise: We can prove that the defendant purchased child pornography. For so doing, he is guilty as charged.

The state's case went smoothly. Those following the case sensed Virzi's only hope would be to somehow convince the jury he wasn't a pervert.

But there would be no testimony from Virzi, from his colleagues at the Gaming Control Commission, or from expert witnesses. The defense rested after calling just one witness--Virzi's wife, Susan, who said he was a good guy.

The jury convicted Virzi of all charges, and Judge O'Melia ordered him jailed to await sentencing.

As Virzi languished, his desperate parents turned to an attorney said to have worked miracles in other seemingly hopeless cases.

Bob Hirsh has been a prosecutors' bane for more than three decades. Long ago, he cemented a reputation as a topnotch trial attorney, able to connect with jurors in the most difficult-to-win cases.

The Virzi case presented special challenges.
The trial was over, so Hirsh had no prosecution witnesses to impeach, no oratory with which to sway jurors.

His sole aim was to convince the judge and prosecutors that a grave injustice had been done by Virzi's trial attorney.

Allegations of "incompetence" usually are made by appellate attorneys after their convicted clients have been sentenced. Such claims rarely pass muster with higher courts. But Hirsh says he was convinced he had a bona fide chance.

"By dint of bad judgment and undercover police persuasion," he says, "my guy got himself wrapped up in something where he ended up buying the stuff. But Scott didn't have a chance at trial because his lawyer hadn't come close to doing what he had to do."

Hirsh's tasks were threefold: To get defense attorney Arnold Weinstock on the record about Virzi, to find experts to assess Virzi's alleged level of sexual deviancy, and to make inroads at the County Attorney's Office.

His July 26, 1995, meeting with Weinstock proved fruitful.
"I felt we had a good jury," Weinstock says.
Hirsh: "He loses on this gamble, he's got 48 years. He's a 27-year-old kid. It's a life-imprisonment case."

Weinstock: "If you're trying to build a case for ineffective assistance of counsel, I think you're dead wrong."

Hirsh: "This is a goddamn outrage what happened here. When there was a plea offer made, I'm curious why this guy wasn't sat down and told, 'Listen, you may lose this case.'"

Weinstock: "Scott was told on several occasions conceivably he could actually spend the rest of his life in jail because of this. . . . But they [prosecutors] could not prove their case."

Hirsh: "Well, clearly they prove the case. There was sexually explicit material involving children under 15 and [Virzi] was in possession of it. I'm not trying to be too forceful here, but to me, this is as tragic and outrageous a result as I've seen. Listen, Arnold, we got a guy doing 48 years. It could have been avoided."

Hirsh retained two experts generally known as pro-prosecution: Dr. Jack Potts, a forensic psychiatrist; and Robert Emerick, a counselor. The pair interviewed Virzi separately and concluded independently he wasn't at all interested in children as sex objects.

In his report, Potts said he suspected Virzi indeed had bought the kiddie porn as part of a misguided ploy to lure the Las Vegas businessman.

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