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."

Observers say Virzi is a classic example of what's wrong with mandatory-sentencing laws. If Judge O'Melia had retained discretion over Virzi's sentence, the legal gymnastics required to free Virzi would never have been necessary.

Instead, the County Attorney's Office was forced to do an end run around the very laws it so strenuously lobbies for at the Arizona Legislature.

Court records show that, before Virzi's 1995 trial, Garcia offered him plea bargains of six months and then a year in jail, plus lifetime probation. Defendants in similar situations rarely reject such offers, especially when they're staring at decades behind bars if convicted.

Agents had captured Virzi on videotape mulling over child pornography for about an hour, then buying it with cash. End of story.

But Virzi chose to risk a trial that meant 48 years in prison without parole upon conviction.

His gamble failed.
After deliberating less than two hours on June 13, 1995, a jury convicted him of all charges.

Virzi later claimed his lead attorney, Arnold Weinstock, didn't inform him about Arizona's mandatory-time provisions until midway through the trial. Weinstock insists he'd warned Virzi of the possible consequences well before trial.

In any case, court records indicate he presented virtually no case on Virzi's behalf at trial, ensuring the swift conviction. That would become the linchpin of Hirsh's effort to rescue Virzi from life behind bars.

"I certainly don't agree that I provided an inferior defense," Weinstock says in a telephone interview from his office in Las Vegas, "but if Mr. Hirsh swung a better deal for Scott by blaming everything on me, that's fine, great."

What troubles several local attorneys contacted by New Times is that normally hard-line prosecutors treated a convicted sex criminal with such kid gloves.

"I'm concerned about the discretion that a Culbertson or a Romley has in these cases," says assistant Maricopa County public defender Chris Johns. "Who gets the breaks, the deals? My suspicion is it's not a lot of poor, black or Hispanic folks. There's a good chance that a line public defender would never even get to a Culbertson to bitch and moan. And if he did, the trial prosecutor probably would make him pay down the road for going over his head. But Bob Hirsh is Bob Hirsh."

Until his arrest, Scott Virzi was known as a gung-ho young investigator for the Nevada Gaming Control Commission.

Virzi's free fall baffled his wife, family, friends and colleagues. To them, he seemed the last person who would tumble into an abyss of sexual depravity. But it appeared he had.

In recent years, undercover agents have run countless stings designed to snag purveyors and purchasers of kiddie porn. By law, however, those agents must avoid "entrapping" suspects.

In overturning a Minnesota man's kiddie porn conviction in 1992, the U.S. Supreme Court defined entrapment: "Law enforcement officials go too far when they implant in the mind of an innocent person the disposition to commit the alleged offense."

Virzi would have seemed hard-pressed to prove entrapment. Records show:
In late 1991, he responded in writing to a thinly veiled advertisement in Xcitement Magazine for child pornography. Unknown to Virzi, its author was a United States postal inspector involved in a national sting operation.

After months of correspondence, Virzi in mid-1992 wrote a letter to his new pen pal that had undercover agents scratching their heads. In it, Virzi said he was forwarding the correspondent's name to an FBI agent in Las Vegas, which he did.

Around that time, however, Virzi started trading letters with another potential source of kiddie porn. He didn't realize his new contact was a Phoenix-based postal agent, working a sting with Glendale police detectives.

On October 7, 1992, Virzi met his new contact at a Phoenix hotel. A damning undercover videotape revealed at trial how Virzi had methodically examined several photographs of prepubescent girls in pornographic poses, then expressed an interest in buying five. Virzi also carefully perused videotapes before selecting three for purchase--Incest, Volumes I to III.

The agent sold him the tapes and the photos for $50. Glendale police and postal inspectors arrested Virzi after the money changed hands.

Virzi threw his captors for a loop, informing them he was an investigator for the Nevada Gaming Control Commission. He explained he'd been involved in his own sting, of a Las Vegas businessman he suspected of being into kiddie porn. Virzi claimed he'd needed the explicit materials with which to lure the man.

But there was a serious glitch in his account. Virzi admitted his supervisors knew nothing about his kiddie porn activities involving the businessman.

The Glendale police booked Virzi into the county jail, where he spent 13 days before being released on bail to await trial.

Arizona law treats possessors of child pornography severely: If convicted, Virzi would face a longer prison term than do most convicted murderers.

His family hired Nevada attorney Arnold Weinstock to represent him.
Prosecuting the case would be JoAnn Garcia, a deputy county attorney known for her sound pretrial preparation and direct manner.

In May 1993, Garcia--with the approval of her supervisors--offered Virzi a favorable plea bargain: Serve six months in jail and be on lifetime probation in return for a guilty plea to "attempting" to possess the pornography.

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.

"Not only is Mr. Virzi quite an unlikely candidate to be aroused by child pornography," Potts wrote, "his rigidity would have to crumble almost to the point of psychosis for him to act on aberrant sexual impulses that may or may not be present."

But prosecutor JoAnn Garcia wasn't biting. She filed a sharp response to a defense request for a new trial.

"If the State proved that [Virzi] knew what was contained on the tapes even without looking at the videos," she wrote, "and he still purchased the videotapes, the State met its burden. . . . There was not, even to the slightest degree, any evidence to justify [Virzi's] actions."

Hirsh realized Garcia posed a stumbling block. He says of the prosecutor, "That woman's got serious problems doing what's right and fair. I had to appeal to common sense."

So Hirsh went over Garcia's head, making his pitch to sex-crimes chief Cindi Nannetti and her supervisor, special-crimes chief Bill Culbertson.

Culbertson is widely considered one of Rick Romley's more sycophantic aides, a micromanager who takes pains to protect his boss from negative publicity. The odds of him okaying a deal after a kiddie porn conviction seemed long.

But he did.
"I thought Culbertson was very open-minded and receptive, which you don't always see in prosecutors," Hirsh says. "It wasn't a sweetheart deal with a, quote, big-shot lawyer."

(Culbertson didn't respond to requests for comment.)
Virzi caught another break in that Judge O'Melia had expressed deep concern about having to impose a 48-year prison sentence in this case.

"I told the lawyers that justice hadn't been done with this verdict," O'Melia recalls. "Not that the jury had done anything wrong--they were following the law. But even the prosecution thought at the start that a year or so in jail was enough, plus lifetime probation. The difference between that and 48 years served was an obvious cause for concern."

JoAnn Garcia asked her supervisors to be taken off the case as negotiations continued between Hirsh and office honchos.

"I explained to all that there was no basis for a motion for a new trial," Garcia wrote chief deputy county attorney Paul Ahler in her July 8 memo appealing her annual evaluation.

"What I did know some two and a half years after Virzi was initially charged with multiple counts of sexual exploitation of a minor was that the jury had spoken: Guilty as charged."

Over Garcia's protests, the two sides inked their deal in Judge O'Melia's courtroom on December 5, 1995.

Scott Virzi pleaded guilty to reduced charges of "attempting" to possess pornography. The judge placed him on lifetime probation, then allowed him to walk out of the courtroom a free man.

Virzi had served about six months in jail, precisely what Garcia had offered about two years earlier.

Bob Hirsh returned to Tucson to fight other fights. But, behind the scenes, trouble was brewing for County Attorney Rick Romley.

Expert witnesses such as pediatrician Kay Rauth-Farley often are pivotal to the successful prosecution of pedophiles and child pornographers.

One of her tasks as medical director of St. Joseph's Hospital's Child Abuse Assessment Center has been to review kiddie porn and then to estimate the victims' ages using a technique called Tanner Staging.

Sex-crimes prosecutors and detectives respect Dr. Rauth-Farley because she does her job well and with an upbeat attitude--no small feat in heart-wrenching cases of this nature.

Her January 5 letter to Rick Romley after Scott Virzi's plea bargain sent shock waves through the County Attorney's Office.

The doctor began by praising the prosecutors in the sex-crimes unit, with whom she's worked closely for years: "I feel they make every effort to ensure that child molesting and physical abuse against children are prosecuted to the fullest extent of the law, as they should be."

She then got to the point, telling Romley she would be doing no more Tanner Staging testimony for his office.

"I strongly urge you to reconsider how your office disposes of child sexual exploitation cases, as I do not believe the Legislature categorized them as Dangerous Crimes Against Children for no reason."

Rauth-Farley--who did not provide the letter to New Times and wouldn't discuss it, she says, on the orders of her employers at St. Joseph's Hospital--got a prompt response from Romley's chieftains.

"Bill [Culbertson] and I met with Kay after we got the letter," says Cindi Nannetti, "and we agreed she had some absolutely valid concerns. We went from there to try to make things better for everyone involved in these cases, such as having our 'Tanner' expert look at, say, ten pornographic photos instead of hundreds. I honestly thought Kay supported what we did after she got all the facts about the case."

Nannetti says she organized a meeting of about 40 people--law enforcement types, counselors and others--to hash things over. Rauth-Farley attended the meeting, at which several sources say she reiterated what she'd written to Romley.

In recent months, JoAnn Garcia has moved from the sex-crimes unit, where she was assistant bureau chief, into the newly created Family Violence Unit.

Ironically, one case she's taken with her is the high-profile kiddie porn prosecution of Glendale's James Moore, which indicates that her supervisors still think highly of her. Kay Rauth-Farley is not listed as a potential witness in the Moore case.

In response to Garcia's appeal, chief deputy county attorney Ahler on August 23 raised her overall evaluation for fiscal 1996 one notch, to "exceptional." But, in a memo attached to Garcia's personnel file, Ahler reiterated the office's position on Virzi.

"We have an obligation to see that justice is done in each and every case," he wrote. "Every case rests on its own set of facts. By way of comparison, one of the co-defendants in the murder of DEA agent Richard Fass recently received consecutive terms of imprisonment totaling approximately 48 years. While the charges against Virzi are quite serious, they are not as egregious as the killing of a law enforcement officer in the line of duty."

Ahler also chided Garcia for publicly bad-mouthing the decision.
"We don't expect deputies to always agree with the decisions of their supervisors," he wrote. "However, unless the decision is illegal or unethical, you have an obligation to support it. . . . Both Phoenix and Glendale Police Departments indicate that you were quite upset and vocal about the decision of your supervisors not to proceed with the 48-year sentence. This unnecessarily heightened the tension concerning the case."

Bob Hirsh says Scott Virzi is doing well in his home state of Nevada. Virzi's dreams of a life in law enforcement are gone, but he's got a decent job--no small task for a convicted felon--and a wife and family who stood by him during his ordeal.

And as for the defense attorney whose dubious legal tactics led to much of what transpired in Virzi, here's a kicker:

Before trial, prosecutors turned over copies of the evidence--the pornographic tapes and photos--to Arnold Weinstock after he said he planned to seek an expert to rebut Rauth-Farley's testimony. (He didn't find one.)

Cindi Nannetti later asked Hirsh about the contraband's whereabouts. Hirsh said Weinstock told him he'd misplaced it.

Nannetti informed Judge O'Melia, who ordered Weinstock to appear at a February 28 hearing. Weinstock avowed he had no clue of the pornography's whereabouts.

On April 3, O'Melia fined Weinstock $250 "as a result of his 'losing' the tapes." The fine was payable to a Valley domestic-abuse shelter.

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