By Ray Stern
By New Times
By Amy Silverman
By Stephen Lemons
By Stephen Lemons
By Monica Alonzo
By Chris Parker
By New Times
At the same time, lawyers for Maricopa County say McAllister is making the whole thing up.
Those attorneys are vigorously defending a lawsuit McAllister has filed against the county for allegedly allowing the assault to occur.
Now set to go to trial in late March, the criminal prosecution promises to be straightforward: Though scientific evidence against Gregg is scant, the Gilbert man confessed to the rape in a "confrontation call" with McAllister recorded by Mesa police a day after the alleged incident at the Desert Vista Behavioral Health Center.
The county's defense attorneys in the also-pending civil case are presenting another story altogether: They claim the rape never happened. Those lawyers, from the private Phoenix firm of Iafrate and Rai, point to the lack of physical evidence against Gregg, and that McAllister didn't report the alleged rape until the following day.
So far, the cost to county taxpayers just for the services of the Iafrate firm is nearly $108,000, according to records obtained under the state Public Records Law. That doesn't include the three expert witnesses hired by Iafrate for the case, the cost of the prosecution, the cost of keeping Justin Gregg in custody, and other expenses.
Gregg's prosecutor, Terry Jennings, would only shake his head in exasperation when asked about the propriety of lawyers employed by Maricopa County working at cross purposes in a case involving an alleged rape.
But the veteran Jennings knows firsthand that, remarkably, the county's civil attorneys have been sharing research, experts and case strategies with Justin Gregg's criminal-defense attorney. Their goal is to try to torpedo the prosecution against Gregg, which would bolster their defense of Maricopa County in the civil case. (Michele Iafrate would not comment on the McAllister/Gregg cases.)
Phil Hineman Jr., who is Gregg's criminal defense attorney, says he was elated when Maricopa County's civil defense team cozied up to him months ago.
"As an advocate for my client, I collect information wherever I can find it," Hineman says. "I think the case against Justin is extremely weak, and the stuff I've gotten from [the county's civil attorneys] certainly has helped us."
The underlying tensions that have evolved in the Gregg case raise a host of questions, according to four legal experts contacted by New Times for this story.
None of the experts had problems with Hineman accepting the aid of the county's civil defense team. And each of the experts – two former Superior Court judges and two other local attorneys – said the County Attorney's Office did the right thing in farming out the civil suit to private attorneys.
"So far, so good," says John Hannah, a Phoenix attorney who chairs a State Bar of Arizona ethics committee. "But after that comes the question of whether a county can or should take radically different positions in prosecuting a serious felony on the one hand, and defending the alleged wrongdoer on the other. They both can't be right."
The Desert Vista psychiatric hospital opened in mid-June 2001 on West Brown Road in Mesa. Publicity materials on Maricopa County's Web site say the 104-bed, two-story facility "specializes in the care of the most problematic psychiatric inpatients. Persons with major mental illness, who have a history of treatment resistance, violent behavior or complex medical/psychiatric illness, are the focus of the treatment center."
County officials also touted Desert Vista as a safer alternative to its patients and employees than the longtime psychiatric ward at the Maricopa Medical Center in central Phoenix.
But on the facility's first day of operation, a patient escaped and carjacked an employee. News of the escape outraged area residents, many of whom already had expressed their discomfort over having seriously mentally ill people – some of them violent and dangerous – living so nearby.
But the weaknesses of Desert Vista's security system were only beginning to reveal themselves. As recently as last March, for example, several employees at the facility sent a letter of concern about security there to the Maricopa County Board of Supervisors and others.
The letter said in part, "We all realize that working with psychiatric patients is a dangerous profession. [But] employees working with such patients should have as safe an environment to work in as is possible."
As depicted by the Desert Vista employees, that environment included inadequate numbers of overburdened staffers trying to cope with innately difficult patients, many of whom weren't taking their medications when admitted.
One troublesome patient was Justin Gregg, who was admitted to Desert Vista on June 23, 2001, for a court-ordered evaluation as to whether he posed a danger to himself and to others. Specifically, according to court documents, Gregg had been talking about killing his family, then himself, and was in a psychotic state brought on in part by his continued huffing of paint fumes and other household products.
Years earlier, according to his attorney Phil Hineman, doctors had diagnosed Gregg as a paranoid schizophrenic. Court records indicate he had many run-ins with the law, and was put on felony probation in 1998 on a marijuana-related conviction.
In late 2000, a Superior Court judge had committed Gregg to the care of county psychiatrists, who were ordered to treat him with antipsychotic drugs, and a combination of inpatient and outpatient treatment.
But during an outpatient phase in March 2001, Maricopa County sheriff's deputies arrested Gregg after a bizarre incident involving a 13-year-old girl at Phoenix International Raceway.
Avondale police reports say Gregg was arrested after he grabbed the girl by the arm and told her, "You're coming with me."
The girl quickly fled from Gregg to family members, who immediately informed authorities. Gregg later told an Avondale detective he'd been following the young girl for a few hours because she was "pretty," but insisted he'd just wanted to show her around the racetrack.
"It needs to be noted that he did appear discombobulated," the detective noted in his report, referring to Gregg's mental state.
Prosecutors charged Gregg with attempted custodial interference, a felony considered less serious than kidnapping.
For legal reasons, however, the prosecution languished, and a judge released Gregg from custody that May. (That case was dismissed, only to be refiled by prosecutors after the Mesa rape charge surfaced.)
A month later, he landed at Desert Vista, five days before Jennifer McAllister also found herself committed there for psychiatric treatment.
Apparently because of overcrowding, Gregg at first was placed in Unit 7, the geriatric ward. According to depositions filed in McAllister's civil case against Desert Vista, at least two nurses soon complained about Gregg's outlandish sexual behavior on the ward.
Registered nurse Donna Barnet testified that when she got to work one day in late June, "The whole unit was talking about this gentleman, how inappropriate he was."
She said she soon found out what they were talking about. According to Barnet, Gregg "would come out to the nurse's station in front of other patients and the staff naked and masturbating."
For a patient to have made such an impact on experienced psych ward staffers such as Barnet is noteworthy. She testified she'd seen other patients doing sexually improper things over the years, but didn't make a habit of asking supervisors to move them elsewhere.
Later that day, Barnet said, she went to check on Gregg in his room, and found him masturbating under the sheets.
"He pulled back the sheet and asked me to get in bed with him and have sex with him," Barnet told Jennifer McAllister's civil attorney, Martin Mathers, during her deposition.
"Did you feel threatened by his actions?" Mathers asked.
"Did you feel that the patients in the facility were also in danger?"
Barnet said she soon informed a Desert Vista staff psychiatrist that "[Gregg] needed to get off the unit . . . immediately."
That day, staffers moved Justin Gregg up to the second floor, to Unit 5. At the time, the unit was a coed, semicircular, seven-room pod with two beds each, and a nurse's station in the middle.
Supervisors informed the Unit 5 team of Gregg's sexually aggressive behavior, and doctors ordered them to check on his whereabouts every 15 minutes – but not one-on-one monitoring that could have been imposed.
In the deposition, Mathers asked Barnet if she felt Maricopa County was responsible for McAllister's alleged rape.
"Yes," she replied. "Because she is, was, mentally ill in the hospital. And the hospital is to be a safe place for each patient that's there, and she was not safe . . . regardless if it was rape or consensual. I don't feel that she was able to make an appropriate decision."
Another nurse, Linda Hoover-Merkley, said in a deposition last November that she'd experienced Gregg's "sexual preoccupations" on the geriatric ward.
"[He said] he wanted to have sex," Hoover-Merkley testified. "I need sex. I need someone to fuck.' That's all I really remember. . . . He was sexually preoccupied, but he hadn't really done anything."
She, too, had reported Gregg's behavior to higher-ups, but says a supervisor responded that "we just needed to watch him. We tried to keep him in his room and just keep him closely observed."
McAllister's attorney asked a supervising nurse who also observed Gregg on the geriatric ward if "there was some point when you got the opinion that Justin Gregg was a sexual predator."
"I don't believe that was the case," Theresa Wilson replied. "The sense I have is that it was more of an aggressive nature."
She added that her supervisor hadn't responded immediately to her concerns about Gregg on the geriatric unit.
"We thought something could possibly happen," Wilson said.
"Did you think it was possible he could sexually assault another patient?" Mathers asked.
"Yes," Wilson replied. "We were worried [about] him, the way he was looking at our old ladies."
In June 2001, Jennifer McAllister was a 21-year-old single mother of a daughter, Patricia, then 2. (She now also has a son, Mick, who recently turned 1.)
An articulate woman, McAllister has an associate's degree from Mesa Community College, and says she's about three semesters away from graduating from Arizona State University.
But like Gregg, McAllister, too, has endured serious mental illness for years. Doctors have diagnosed her with a bipolar disorder that causes her to suffer manic episodes – extreme highs and lows. She hasn't worked for a few years, and survives on her boyfriend's income as a supermarket employee, plus her own checks totaling about $800 monthly for social security disability and Aid to Families With Dependent Children (AFDC).
McAllister says she first tried to overdose on pills when she was 12, around the same time she began to cut herself with a razor on parts of her body.
By the time she was 17, McAllister already had been hospitalized more than once for her mental problems. And like Justin Gregg, she has a felony marijuana-related conviction on her record.
In March 2001, records show, McAllister admitted herself to a Mesa hospital for a short stay because she was contemplating suicide. The following month, records show, she overdosed on pills, and was on life support for a few days before being released to her mother and stepfather.
But there was nothing voluntary about Jennifer McAllister's admission to Desert Vista on June 28, 2001. Court documents show that her mother, Janie Williams, and her case manager at ValueOptions – a firm that supervises treatment of Maricopa County's mentally ill – persuaded a judge to order McAllister's emergency commitment after she disappeared for a few days with her young daughter.
"I was so mad at my mom for doing that," says McAllister, who now lives in Tempe with her children and her boyfriend. "Having my daughter taken away from me and then being committed was hard to take. Yeah, I was having problems, but I wasn't going to hurt myself at that point. And I'd never hurt Trisha and never would."
Authorities took McAllister by ambulance to Desert Vista on the evening of June 28. There, the staff gave her a pair of blue hospital scrubs to wear, and put her in a room with another woman. McAllister says she hadn't been wearing undergarments at the time she'd been hospitalized, and the hospital didn't provide any.
She says she stayed in bed most of the next day, June 29. Later that day, McAllister says, she went to the cafeteria for dinner, then went to the smoking area with her roommate. (Curiously, no one in the criminal or civil case seems to have interviewed the roommate, whose name remains unknown – even McAllister says she knew her only as Rochelle.)
McAllister said in a deposition last August 21 that she'd met Justin Gregg in the smoking area, when her roommate borrowed a few cigarettes from him.
They chatted for a few minutes, McAllister testified, after which Gregg allegedly told her something akin to, "You're going to be fun.'"
Civil defense attorney Michele Iafrate asked McAllister if she'd asked Gregg what he'd meant by that.
"No, I really didn't have a chance to," she replied. ". . . I sort of blew it off to, He's crazy. I'm in a mental hospital.'"
Later that evening, the movie Erin Brockovichwas playing in a day room at Desert Vista. McAllister says she attended the movie for a short time, then decided to return to her room because she wasn't feeling well. She says she got under the covers in her bed, still wearing her scrubs without underwear, and fell asleep on her stomach.
The next thing she recalled was chilling: "There was something heavy pinning me to the bed and I couldn't get up. . . . I was aware that I was wet in between my legs and I was being touched in between my legs. . . . Something was going inside me and around the outside, too."
McAllister, who weighed about 110 pounds at the time, says she somehow "came off the bed and I was on the floor, and I remember pulling up my pants, and I didn't have any panties to pull up, and I was on the far end of the room and he was on the bed, and I . . . ran out of the room."
McAllister's room was only a few feet from the nurse's station in the unit, but she says she didn't see the on-duty nurse there. That nurse, Terri Sessums, said later that she'd hadn't observed either McAllister or Gregg enter the woman's room.
McAllister says she couldn't immediately find any other staff, so she ran into another room on the unit (an empty one where she'd showered the previous evening because the shower in her room was broken).
She soon returned to her own doorway, and says she saw Justin Gregg "still in my bed . . . sitting in my bed."
Again, McAllister says, she looked around the unit for a Desert Vista employee, and finally found a psych tech named Kathryn Winscher.
"I asked her if she could get him out of my bed," McAllister says.
Winscher corroborates that statement, although she disputes much of what McAllister has to say about the alleged incident.
McAllister concedes she didn't tell Winscher that the 160-pound Gregg had just sexually assaulted her. "I was scared, and I wasn't sure what was going on, who to trust, what to think," she tells New Times. "I have no idea how I got him off of me. My face was in the pillow. I think the fight mechanism kicked in. When I tried to go back into my room, he was still sitting on my bed. I said, Oh my God, he's not done with me.'"
McAllister says she went into her bathroom after Winscher shooed Gregg back to his room, then washed herself off in the sink with soap.
Then, she says, she lay in bed awake for the rest of the night.
In the deposition, Michele Iafrate asked McAllister if she'd told her roommate what had happened after the other woman returned from the movie.
"No, because I didn't know her," McAllister replied. "I was embarrassed and ashamed and humiliated and I didn't really want anyone to know."
Nor did she tell anyone else that night at Desert Vista. "I didn't think I had to say specifically someone raped me. I thought it was obvious by my condition and where he was that I had been molested. I thought that Kathy, the attendant, knew what had happened."
Kathy Winscher said in a deposition last April that she didn't believe Gregg raped McAllister.
"Do you have an opinion as to whether or not Justin Gregg raped Jennifer McAllister on June 29, 2001?" attorney Martin Mathers asked.
"I don't believe he did," Winscher answered. "Because I don't believe there was enough time."
Late on the morning after the alleged assault, McAllister says, she left a message on her mother's phone machine, blurting that she'd been raped. "I didn't want to call her, and I wasn't planning on saying anything to her because I was still embarrassed and I was humiliated. I called my mom because I wanted underwear."
Within a few hours, records show, one of McAllister's family members reported the alleged rape to the Mesa Police Department. Officer Greg Beck drove over to Desert Vista late on the afternoon of June 30, 2001, where McAllister's parents already had gone.
The officer met alone with McAllister in a conference room there, where she recounted the alleged events much the same as she's repeating today.
Kathy Winscher told Officer Beck that her assignment the day before had been to monitor Unit 5's day room – where the movie was playing – and the hallway. She said there simply hadn't been enough time for a rape to have occurred. Winscher said Gregg had walked past her down the hall, but that he was out of her view only "for a brief moment." (In later depositions, she said Gregg had been out of her line of vision for no more than a minute or so.)
Winscher said she'd gone to find him, and instead bumped into McAllister, who'd asked her to get him out of her room. "Winscher said Jennifer was fully clothed and did not appear or sound distressed," according to the police report.
(Later, she told lawyers in a deposition, "I should think there would be some distress if it was a rape.")
According to Beck's report, Winscher then found Gregg, dressed in his scrubs, sitting on McAllister's bed. She apparently never asked him what he was doing there, and simply ordered him back to his own room.
Oddly, the Mesa police never searched Jennifer McAllister's room – the alleged crime scene. Instead, officers relied on a Desert Vista nurse to bundle up and bag McAllister's bed sheets, which would reveal little of evidentiary value.
The officers decided to transport McAllister to the police station – actually the adjacent Center Against Family Violence – to undergo a rape test and further interviews, and to make a "confrontational call" to Justin Gregg.
That kind of call is a venerable law enforcement technique in which an alleged victim tries to get a suspect to confess, while police listen in and record the conversation.
Jennifer McAllister phoned Justin Gregg at Desert Vista early that evening, June 30, 2001. She starts by thanking Gregg for giving her the cigarette the previous day. She says she's out of the hospital, then gets to the point.
"Why did you come into my room last night?" McAllister asks.
"'Cause I wanted to get to know you better, I don't know," Gregg responds. "Something romantic to do, I guess."
"Why did you have sex with me?"
"You just came in my room and just sat there for a while?"
"You didn't take my clothes off?"
"No, I wanted to."
"How come you were laying on top of me?"
"Because I wanted to make love to you."
"How come you didn't?"
"Because you were asleep."
"I felt you inside me," McAllister says.
"Did it feel good?" Gregg replies.
"What was it like for you?"
"It was great."
"What was it? Was it your penis or was it something else?"
Gregg tells McAllister he'd ejaculated inside her – something that isn't substantiated by the rape test. Gregg never has provided his DNA for examination by authorities, and McAllister's rape test revealed no evidence that would confirm there even was penetration that night.
McAllister then asks Gregg why he didn't ask her permission to have sex with her.
"'Cause you looked so peaceful," he says. "I didn't know if you wanted to or didn't want to."
A few seconds later, she asks, "Did you try to wake me up?"
"Yeah," Gregg replies. "You got scared."
He then tells McAllister, "I know you better than you think," then alludes to an alleged earlier conversation during which she told him about passing out in a bathroom after overdosing on pills. (She denies that conversation.)
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.)
"I think it's really wrong for Maricopa County to supposedly be on my side and against me all at the same time," McAllister says. "They say that I'm crazy, but I think the truth is that the situation I'm in really iscrazy."
Jennifer McAllister says she's trying to keep herself afloat mentally as the pressures of her legal battles grow. She says she's torn about whether to accept Maricopa County's recently tendered "final" settlement offer to her.
Neither she nor her attorney will specify the amount, but McAllister says it's less than the $100,000-plus that the county has paid the Iafrate firm so far to defend it against her.
Still, McAllister says she knows that whatever sum she might collect would help her with a fresh start in life, possibly in a small town in Oklahoma, where she's from.
"I know people always say they didn't sue for the money and all that, but I didn't sue for the money," she says. "I sued because I was pissed at them for letting this guy rape me. I want this to get out there so it might not happen to another girl. I know I'll be the one on trial if either case goes to trial."
McAllister pauses for a moment, then continues. "There really hasn't been anything good that's come out of my coming forward so far. I don't know what to do."