By New Times
By Connor Radnovich
By Robrt L. Pela and Amy Silverman
By Ray Stern
By Keegan Hamilton
By Matthew Hendley
By Monica Alonzo
By Monica Alonzo
McAllister tries to redirect the dialogue back to the alleged rape.
"So you know that if you had sex with me and you didn't ask me, that's rape?"
"You know what you did was wrong?"
"Yeah. I feel terrible about it."
"You should," McAllister concludes. "It's scary."
But attorneys for Maricopa County in the civil case have said in court documents that a Tucson psychiatrist they've hired (at taxpayer expense) will explain away Gregg's inculpatory phone call:
"Justin Gregg's mental illness causes him to process matters in a way different than a normal' person. At the time of the confrontational call, Justin Gregg was suffering from a mental illness and medicated for his mental illness."
Both the civil and criminal defense attorneys say Gregg's confession of raping McAllister – easily the best evidence against him in the criminal case – is fatally flawed.
If a jury disregards the confrontational call, that undoubtedly would spell the end of both the criminal and civil cases. That's because of the lack of physical evidence against Gregg, other than the indisputable fact that he was in Jennifer McAllister's room when he shouldn't have been.
But Mesa detective Don Phelps – who'd been present when McAllister spoke to Gregg on the phone – said in a deposition last May that he came to believe her story.
"Do you have any doubt or have any reason to disbelieve anything that Ms. McAllister told you about the incident?" Martin Mathers asked Phelps.
"At first," he replied, "but then as I went through my investigation, no, I feel that that's what happened . . ."
"And after you conducted this investigation, what Ms. McAllister told you about that evening turned out to be true, in your opinion, is that a fair statement?"
"In my opinion, correct."
Shortly after the phone call, police took McAllister back to Desert Vista and instructed staff to keep her away from Justin Gregg. She'd stay there for almost two more weeks, this time in the geriatric unit – where Justin Gregg briefly had resided until frightening the nurses with his sexual proclivities.
On July 2, 2001, Detective Phelps learned that Desert Vista was about to release Gregg to family members. The detective asked officers to take the young man to the Mesa police station, for questioning about McAllister's allegations.
But Gregg declined to talk after Phelps read him his rights against self-incrimination. Phelps then told Gregg he was under arrest for sexual assault. Gregg has been in jail ever since.
Maricopa County Attorney Rick Romley commonly uses the phrase "reasonable likelihood of conviction" when asked why his office decided to prosecute or not to prosecute someone.
In early July 2001, Romley's prosecution team decided they could convince jurors of Gregg's guilt beyond a reasonable doubt, the standard in criminal cases. To that end, they secured a grand jury indictment against Justin Gregg for sexual assault.
Six months later, in January 2002, Jennifer McAllister filed her civil lawsuit against Maricopa County, claiming that negligent supervision and security at Desert Vista had afforded Gregg the opportunity to assault her. She didn't ask for a specific dollar amount in the suit.
Bill FitzGerald, a spokesperson for the County Attorney's Office, says office supervisors decided to step out of the civil case after the potential conflict of interest became apparent.
While conceding that the situation is a head-scratcher, FitzGerald says, "In something like this, we had to let the county's Risk Management people – who aren't part of our office – make the decisions on how to proceed, who to hire in our place. We haven't been making any decisions on the direction of that [civil] case since we got out."
The county hired the firm of Iafrate and Rai to defend it against McAllister's civil claims.
Iafrate, who is spearheading the defense, worked for the County Attorney's Office until going into private practice a few years ago. She denied unequivocally in court documents filed last February that Desert Vista had done anything wrong in this case, or that Justin Gregg had raped Jennifer McAllister.
Meanwhile, the Gregg prosecution remained on hold as mental-health experts tried to determine if he was legally competent to stand trial. (Last December 19, a judge deemed him restored to competency after reading the reports of two court-appointed psychiatrists.)
Months ago, the Gregg family hired attorney Phil Hineman Jr. to represent Justin, who already had pleaded not guilty to the rape charge. Hineman says the civil attorneys representing Maricopa County against McAllister soon let him know they were on the same side.
"It was as simple as, Let's help each other win our cases,' though not in those exact words," Hineman recalls. "I said, Let's talk.'"
McAllister says she came unglued when she learned from her attorney, Martin Mathers, of the extraordinary alliance. She says Mathers told her he'd heard about it from prosecutor Terry Jennings, who said he'd seen Hineman and the civil attorneys huddling in court before pretrial hearings in the criminal case.
Asked by New Times if he was invited to join in that discussion, prosecutor Jennings said he hadn't been. (Mathers declined to discuss the matter for publication, saying only that he believes in his client, and her ability to tell the truth.)