Murky Waters

The drowning death of a child is always a tragedy. But when does it become a crime? County prosecutors are wading into a dangerous debate.

What, Ryan asks, is different between that case and Vanessa Rico's?

"Let's change a few facts," he says. "Instead of drowning in a tub or frying in a back seat, someone leaves the back door open, gets distracted by a phone call, and a kid falls into a pool and drowns. It's still inattentiveness. That's the Pandora's box they've opened. You're going after people who wish they were dead instead of their child."

Ryan recalls that, in another case, he addressed the board as it contemplated prosecution of a Gilbert couple who also made the fatal mistake of leaving their baby in a scorching car.

Some local citizens compared the unintentional bathtub drownings to South Carolina mom Susan Smith's premeditated drowning murders of her two young sons.
Some local citizens compared the unintentional bathtub drownings to South Carolina mom Susan Smith's premeditated drowning murders of her two young sons.
Former Family Violence Unit prosecutor Tim Ryan: "You're going after people who wish they were dead instead of their child."
Kevin Scanlon
Former Family Violence Unit prosecutor Tim Ryan: "You're going after people who wish they were dead instead of their child."

"This couple had a bunch of kids, and I spoke about what's it like to be part of a large family," says Ryan, one of 11 siblings. When Ryan was about 4, he told the board, his father -- an eye doctor -- took him and eight of his siblings to northern Arizona to go sledding. On the way, they stopped at a Payson trading post, where Tim somehow got separated from his father. Trouble was, Dr. Ryan didn't know Tim was gone for almost two hours.

"A lady at the store took me to the nearby DPS [Department of Public Safety] station, and I stayed there and had fun until my dad finally figured it out, and came back down and got me. Was he, quote, inattentive? Sure. Could have done a better head count. But if something had happened to me, should he have been prosecuted? No way."

The board declined to prosecute the East Valley couple.


In late June, Superior Court Judge Barry Schneider met with the opposing attorneys in the Vanessa Rico case. Such meetings are standard before a scheduled trial, as a judge tries to get a feel for the way the case might go, including any possibility of a plea bargain.

Schneider asked deputy county attorney Maria Armijo why she was prosecuting Rico on the negligent homicide charge, according to an affidavit filed by Armijo.

"He sees this [Rico] case only as a tragedy and not as a criminal act, and that there is nothing that could really come out of charges . . . [and that] Ms. Rico would think about her daughter every day and live forever with it," the affidavit says. "[Schneider] said that if he were the elected official, he would not charge this case. [He said] if we should charge this, we should charge all of the pool drownings."

Armijo called for Schneider's removal from the case because of alleged "bias and prejudice" against the state. The judge soon recused himself.

Schneider wouldn't discuss the Rico case with New Times, but said Armijo's affidavit generally was accurate. The judge's closed-door comments were not unique in the debate over the propriety of charging parents in their children's preventable, but still accidental, deaths.

Until recently, the attitude of prosecutors around the nation tended to mirror Schneider's. Ten years ago, the Maricopa County Attorney's Office was much more lenient toward parents who had made a terrible mistake. One particularly troubling case involved a 5-month-old child who'd been left in a parked car when the temperature outside was 108 degrees. Somehow, that child survived.

"This is a very difficult area for everyone," office spokesperson Bill FitzGerald told New Times in explaining then why the Valley mother was not being charged, "including the police, firefighters, the prosecutors. Where do you draw the line, and say the parents have been through enough?"

The enough-is-enough concept when it comes to accidental child drownings still holds sway in some jurisdictions, including Los Angeles County. Sandi Gibbons, a public information officer for the District Attorney's Office, says that in her 12 years on staff she can't recall any prosecutions similar to the Rico or Perry cases.

"We'll go hard as can be on intentional child abuse or assault or whatever," Gibbons says. "But not for a kid drowning when you were stupid enough to leave the room or the pool area for a few minutes."

Elsewhere, however, the attitude is changing. In Park City, Utah, a man was sentenced to one month in jail earlier this summer after being convicted of negligent homicide in the death of his 28-month-old son. The man left the child in his pickup truck, then went to scout hunting locations for about an hour. The boy opened the door, wandered into the wild, and froze to death.

And last month, Pima County prosecutors filed their first negligent homicide charges in a child drowning incident with distinct similarities to the Maricopa County cases. Pima County Attorney chief criminal deputy Rick Unklesbay says that, on August 2, single mother Monique Castillo left her 2-year-old son and 13-month-old daughter alone in the bathtub. She then chatted outside with a neighbor for about 10 minutes. During that time, the little girl drowned.

Castillo has pleaded not guilty.

"These are very tough cases," Unklesbay says. "You're dealing with families who already have suffered a loss, and so this does compound the tragedy. You're not dealing with criminals, per se, here. You can't say it was an intentional act, so you have to look at it as being so negligent. I think the public understands the need for us to look hard at these cases, as long as it has to do with someone else."

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