Andrew Thomas Ignores Evidence That Courtney Bisbee Was Wrongly Convicted of Child Molestation As Supporters Work to Free Her
In January of 2004, Courtney Bisbee's life was hitting a hectic but welcome stride. The divorced mother of one had recently landed a nurse's job at Horizon High School in affluent northeast Phoenix, close to the border of Scottsdale, where she lived. Across the street, her 4½-year-old daughter attended preschool at Rancho Solano Private School, where Bisbee, 33, had previously been a student teacher.
The new position at Horizon allowed Bisbee, who'd gotten her bachelor's in nursing cum laude from the University of South Florida, to eat lunch every day with daughter Taylor Lee. At night, Bisbee pursued a master's degree in elementary education from the University of Phoenix. Sundays, she worshipped at Scottsdale Bible Church with her little girl.
"I was trying to find balance between being a working single mom and being able to maintain this life I was living until I graduated," recalls Bisbee during a recent phone conversation. "I didn't know if I was going to go back east after I graduated because I was doing so well here. Everything was going awesome."
Her divorce finalized in 2002, Bisbee was finally sticking a cautious toe into the dating pool. At the high school where she now worked, she found teenagers willing to babysit for her. Some of them had challenged home lives. She did her best to assist them, even taking in one wayward 16-year-old, Brittany Heeler, whose mom had kicked her out of the house. For Bisbee, it was the Christian thing to do.
She did not know it, but her days of normalcy were numbered. On February 11, 2004, Bisbee was arrested outside her home by Scottsdale police on suspicion of child molestation. It was only after she had been held for 66 days, then finally released on $100,000 bond, that she would grasp the full extent of the allegations against her.
The state alleged Bisbee had engaged in a mutual grope session with a 13-year-old named Jon Valles. Incredibly, she was supposed to have done this in a room full of teenage witnesses, some of whom had babysat her daughter.
Jon claimed to authorities that Bisbee had kissed him on two different occasions before the alleged incident on the afternoon of February 5. Jon said Bisbee molested him during a visit she made that day to the home of Michael and Diane Kemp, where Jon and his older brother Nik had been living since early January. In the bedroom of his friend Donnie Kemp, with Brittany Heeler, Nik, and others present, Jon claimed, Bisbee pulled a blanket over them as the pair sat or lay on the floor.
Beneath the blanket, where no one could see, Jon said Bisbee unbuttoned her pants and his, placed his hand down her pants onto her vagina, and stuck her hand down his pants, touching his penis over his underwear. This touching supposedly occurred anywhere between two and 15 minutes, until Jon rose to get a drink of water. Donnie and Brittany, in the room making out with each other, stated they observed Jon and Bisbee kissing beneath a blanket, though evidence later emerged to undermine Donnie's and Brittany's accounts.
That night, Jon and Bisbee spoke by phone. Mike Kemp, Donnie's father, claimed he listened in through a bedroom extension as the two discussed running away to Utah. Bisbee later disputed this, saying she was admonishing Jon for trying to kiss her, and that the Utah reference was a sarcastic one, taken out of context. Kemp told police he called Jon's mother, Janette Sloan, on a cell phone and placed the phones side by side, allowing her to listen in. The next day, Sloan filed an order of protection against Bisbee, then reported details of the alleged molestation to the Scottsdale police.
Two weeks following her arrest on February 11, Bisbee was charged with three counts of child molestation and three counts of indecency. The media lumped her in with various high-profile cases of improper student-teacher relations, though Bisbee was not a teacher, and Jon was not her student. Rather, he attended Desert Shadows Middle School, a mile or two south of Horizon.
Bisbee pleaded not guilty, aced a polygraph test, and passed a rigorous screening designed to sniff out pedophiles. Still, she was convicted after a six-day bench trial in early 2006. Despite conflicting testimony and a lack of physical evidence, Superior Court Judge Warren Granville believed Bisbee's accuser and found Bisbee guilty on two counts of child molestation, resulting in a sentence of 11 years in state prison.
Bisbee lost everything. Her home. Her career. Her good name. Her freedom. Plus, more than $400,000 in legal and consulting fees. And, most importantly, Taylor Lee, whom she has not seen or heard from since losing custody of the girl in 2005, because of the alleged molestation of Jon Valles.
Yet, after almost three years of confinement in Goodyear's Perryville prison complex for women, there's some hope for Bisbee.
In 2007, Jon's elder brother Nik recanted his testimony against Bisbee in a sworn affidavit; he accused his mother and his brother of concocting the tale to establish grounds for a lawsuit.
Since the trial, other witnesses have maintained that Jon lied about Bisbee. Numerous individuals have communicated this information to County Attorney Andrew Thomas, to no avail. The conviction took place under Thomas' watch, and legal experts assert it is Thomas' duty as a seeker of justice to investigate this new information.
As Thomas ignores the pleas of Bisbee's family and her supporters, a small army of Bisbee partisans presses on. Last week, Phoenix attorney Ulises Ferragut filed a post-conviction relief petition — essentially, a motion demanding a hearing to overturn Bisbee's conviction, and possibly have her released from prison pending a new trial. It features new evidence, arguments that Bisbee did not have effective legal counsel, and the opinions of such experts as Alan Simpson, the lawyer who famously helped death-row inmate Ray Krone overturn a false conviction for murder.
Meanwhile, Bisbee's parents, Camille and Tom Tilley, run a makeshift command center from their Goodyear home, where they moved from Atlanta to be near their daughter. Concerned citizens have formed a coalition that networks, rallies, and passes out petitions on Bisbee's behalf. Family members in far-flung states endlessly pore over legal documents, charting errors and inconsistencies. All are kept informed by an e-mail network and a Web site, justice4courtney.com.
Bisbee's advocates believe her conviction must be corrected, that it is a huge injustice for County Attorney Thomas to refuse to consider the new evidence. Specifically, the recantation of a key witness, and the charge that Bisbee's accuser was prompted to lie under oath.
These days, Nik Valles works with his father, Gene, at Cadishop, a Cadillac-repair shop the senior Valles manages near Cactus Road and Interstate 17. A tall, laid-back young man of 20, Nik appears soft-spoken and reserved at first. But, once he warms to a visitor, he expresses himself with candor. From the vantage point of several years since the alleged incident, he says Courtney Bisbee is a kind, nurturing person who is innocent of the charges against her.
"Every kid who knew her at Horizon had nothing bad to say about her," he recalls from the Cadishop breakroom. "All the guys thought she was good-looking, and all the girls thought she was really nice. The kind of person you'd want working in a school. Someone who puts themselves on the kids' level, who understands you and respects you."
As for his brother Jon's allegations against Bisbee, Nik, who was 15 at the time, believes nothing of a romantic nature happened between them.
"All the times that we had hung out with Courtney, nothing ever caught my eye," he says. "If I had seen something go on between my brother and Courtney, I would've remembered it. That's something big; that's not something you forget about."
It is not just the absence of witnessing any hanky-panky between Bisbee and Jon that convinces him Bisbee did no wrong. He says he knows his brother is lying because his mother, Janette Sloan, pressed both of them to be deceptive about the supposed incident. Her goal: filing a lawsuit against Bisbee, the Paradise Valley Unified School District, and Mike and Diane Kemp, the parents of then-14-year-old Donnie, at whose house the brothers were staying without the knowledge of their mother.
Nik has gone so far as to state this in a sworn, notarized affidavit that recants his testimony during Bisbee's trial and accuses his brother of perjury. Back in 2006, Nik testified as a witness for the prosecution. And though his testimony was a mass of inconsistencies, Deputy County Attorney Paul Kittredge featured it in his closing argument. Kittredge asserted that it corroborated Jon's story in court, when, in fact, it had done little more than place Bisbee in the Kemp bedroom on the afternoon in question.
On the stand, Nik's favorite phrase was, "I don't remember," and much of what he had to say was confusing and contradictory. He recalled Bisbee's being in the room with him, Donnie, Brittany, and Jon but did not say that anything untoward occurred.
At its worst, Nik's testimony was suggestive, implying there may have been an improper relationship between his kid brother and Bisbee. During the trial, he offered general descriptions such as "playful," "touchy-feely," and "weird" to characterize the Bisbee-Jon acquaintance.
"It wasn't like a normal friend relationship," he said of the pair's interactions. "You know, they kind of had a lot of playful times that could be mistaken for flirting."
In his summation, prosecutor Kittredge insisted that Nik "basically did corroborate" what Jon, Donnie, and Brittany had to say about the incident. Each of the kids had a slightly different story. Donnie said he saw Jon and Bisbee romping around beneath a blanket. Brittany remembered them kissing. Nik did not recall much at all, only that Bisbee had been in the room at some point.
Kittredge brazenly asserted in his closing argument that Nik had seen Jon kissing Bisbee that day, though this was not the case. Nik never stated, during his time in the witness box, that he saw the pair kissing.
To the degree Nik helped the prosecution's case back in 2006, he now states that his testimony was coerced, part of his mother's plan to cash in big-time with a civil suit.
"My mother, Janette Sloan, wanted my brother Jonathan Valles to make false accusations against Courtney Bisbee for financial gain," reads the document, which Nik signed in January 2007, a couple of months after his 18th birthday.
The affidavit continues: "I witnessed my mother, Janette Sloan, [telling] my brother Jonathan Valles to lie and to stick to the story and, 'You'll be a rich kid.'"
The document is a bombshell because the prosecution's case boiled down to a he said/she said situation. Though the teen witnesses offered some testimony backing up parts of Jon's claim that Bisbee had an unsavory relationship with the boy, only Jon could testify to the assertion that he and Bisbee had fondled each other's genitals. That's because, according to the prosecution, the molestation had taken place beneath a blue blanket as the pair embraced on the floor, with other teens making out, playing Atari, or walking in and out of the room as they pleased.
Indeed, as mentioned above, prosecutor Paul Kittredge's closing statement in Bisbee's trial noted the importance of Nik's supposedly corroborating testimony — testimony pivotal to the prosecution's case, Kittredge claimed. Judge Granville later cited Jon's credibility as the key factor in his decision to convict.
But in one document, Nik Valles knocks the legs out from under the prosecution's arguments and the judge's verdict. Why now? Why not during the trial, when such admissions in all likelihood would have resulted in Bisbee's acquittal?
"Because I was under the influence, threat, and coercion of my custodial parent," states Nik's recantation. "I was unable to testify truthfully and accurately at Courtney Bisbee's criminal trial. I was told not to contradict what my brother Jonathan Valles had to say."
Nik Valles claims he feared for his safety when in his mother's household. In the affidavit on file with the court, Nik describes a physical altercation between him and Paul Cathey, his mom's boyfriend. In fact, a Scottsdale police report dated May 16, 2004, details an incident in which Nik told law enforcement that Cathey pushed and choked him during an argument. Cathey later admitted to police that he had grabbed Nik and wrestled with him, though he denied the choking allegation.
Cathey now lives in Charleston, South Carolina, as do Jon and his mother, who is separated from Cathey. Cathey could not be reached for comment. Neither could Jon, who turns 18 next month. Jon still lives with his mom, attends high school in South Carolina, and just became a father of a baby girl, family members say.
For her part, Janette Sloan answered her Charleston phone and jousted verbally with New Times before hanging up abruptly. Asked what she thought of Nik's recantation, Sloan had this incoherent response:
"I bet if you talk to Nik now, he'd change. Nik was having some problems going through teenage years and rebelling. That's what that was all about. And now that the boy is 20 years old, we still talk to each other all the time. And he loves his brother. He knows the truth. He loves his mother."
Nik's not changing his story, no matter what his mother says. He contends that his mom even coached his brother and him on what to say on the way to their interview with Scottsdale Sex Crimes Unit Detective Christopher Kinder back in 2004.
"I love her; she's my mom," Nik tells New Times. "But I don't agree with any of the decisions that she makes, and I wouldn't trust her with my life. That's really all I feel toward her."
Nik Valles believes his mother saw dollar signs when she discovered that he and his brother were residing at the home of Mike and Diane Kemp. They had been living there for at least a month before she found out.
Nik and Jon's parents are divorced and, at the time, shared joint custody. But Nik says neither he nor his brother wanted to stay with their mother, who was living in a commercial building just south of downtown Phoenix owned by her boyfriend Paul Cathey. They preferred the living situation at their dad's house, but Gene Valles knew he soon had to serve time on a DUI conviction, so he made arrangements for the Kemps to keep the boys while he was in jail.
The Kemp residence was a stone's throw from Horizon High School, where Nik attended classes. Desert Shadows, where Jon went, was also close by. The plan was to trick their mother so they could continue going to their respective schools, and avoid having to live with her in the building at 201 West Gibson Lane.
"Basically, I did not want her to know I was in jail, because they didn't want to go live with her," Gene Valles says. "She lived in a warehouse downtown. I didn't want them not going to school, and I didn't want them changing schools. So it was easier just to let her believe that everything's fine, everything's normal, [and let them] stay in school."
This plan might have worked had Courtney Bisbee not made a serious error in judgment and pulled Jon out of class at Desert Shadows on February 2, 2004, to babysit her daughter Taylor Lee, who had come down with a severe fever at Rancho Solano.
Gene Valles had spoken to Bisbee by phone from jail; she was trying to help both Nik and Jon, who each had been sick and lacked insurance to see a doctor. Bisbee wanted to try getting the boys signed up for AHCCCS, Arizona's state-managed Medicaid program. According to Gene, they also discussed putting Bisbee on the emergency sign-out card for Jon.
In a panic because she had a school meeting and no one else to watch her ill child, she removed Jon from school, signing the name "Valle Tilley" and stating on the form that she was a relative. (Bisbee's full name on her Arizona-issued driver's license read Courtney Valle Tilley-Bisbee.)
"The stupidest thing Courtney did was to check Jon out of school under some assumed name," observes Valles. "But her daughter was sick, and she needed a babysitter because she had a meeting in the afternoon or after school that day. She figured she could check Jon out of school — which she kind of had my permission to do. But I didn't put her name on the checkout sheet. We had discussed it, but I [hadn't done] it."
With Taylor Lee in tow, Bisbee took Jon to her house and returned to Horizon for her meeting. But a Rube Goldberg-like series of social interactions had been set off. Desert Shadows was supposed to contact Gene Valles in emergencies. Instead, school officials contacted Sloan, who was surprised to learn that her son had been picked up by a stranger. She also found out that her children had been residing not with their father, but with another family, while her ex served a four-month DUI sentence.
Sloan was angry with the school system, the Kemps, her former husband, and with Bisbee. Suddenly, the Kemps were in a vulnerable position, all because Bisbee had removed Jon from school on February 2, 2004. Despite Sloan's distress over the situation, Nik stated in court that he and Jon remained at the Kemps' house until around the end of February or the beginning of March, when their mother took custody and removed them.
For Bisbee, everything came to a head on February 5, when Horizon placed her on administrative leave for removing Jon from Desert Shadows.
Bisbee says she went over to the Kemps to apologize to Diane for the mess she had caused. Bisbee then offered to get some cough medicine for Nik, who was home sick that day with bronchitis. She brought it with her when she came over that afternoon to pick up Brittany Heeler, the student Bisbee had given shelter to, on and off. Bisbee had already planned to meet Brittany at the Kemps at the end of the school day. The 16-year-old had agreed to watch Bisbee's daughter that evening while Bisbee attended class at the University of Phoenix.
That is how Bisbee came to be in the room with Jon, Nik, Brittany, Donnie, and the rest.
A precocious boy who became sexually active at 13, according to his father and his sworn testimony, Jon had already tried to kiss Bisbee once before. This time, as Bisbee sat in a beanbag chair talking to the teens about their day at school and her suspension, Jon gave it another go.
"Jon had leaned over and had tried to kiss me," Bisbee recalls during one of two phone interviews from Perryville. "I leaned forward, and I was like, 'What are you doing? What are you thinking?' And he started laughing at me, sort of ridiculing me a little bit, thinking it was funny. I was like, 'What are you doing?' He kind of kept smirking. Then I stood up and walked out.
"Mrs. Kemp was in the kitchen, but she was with her daughter. So I didn't say anything. I didn't think it was something I couldn't handle. It was just uncomfortable, because that was the first moment that I realized that he had really crossed the line with me."
Bisbee and Jon spoke later that evening following her University of Phoenix class, and, Bisbee claims, she admonished him for his behavior. Mike Kemp, whose son Donnie had been in the room with Jon and Bisbee, testified that he picked up a receiver in his bedroom and overheard the conversation between Bisbee and Jon. Believing the conversation to be inappropriate, Kemp claims, he called Jon's mother on his cell and placed the phones next to each other so she could listen in. Ultimately, Kemp says, he ended the call after confronting Bisbee verbally.
The next day, Sloan filed a restraining order against Bisbee and, later, a complaint with the Scottsdale PD. How Sloan obtained the details of what was later said to have transpired is a mystery, as neither Kemp nor Sloan ever stated that those details came out in the call they overheard.
During the criminal trial, Sloan testified that as she listened in, she overheard Bisbee ask Jon if he wanted to get married, suggesting they could go to Utah to do so. Kemp said in court he also heard this, as well as Bisbee's discussing with Jon what sort of boyfriend-girlfriend relationship they should have, and Jon's telling Bisbee that he wanted to "fuck" her.
Bisbee maintains that, during that call, she spoke at different times with Jon, Donnie, and Nik, who were all sharing Donnie's bedroom at the Kemps. Bisbee says she lectured Jon on why his trying to kiss her was wrong. She admits that during the phone call she made a sarcastic comment about Utah to Donnie, in discussing his then-relationship with Brittany.
Specifically, when Donnie mentioned that he and Brittany wanted to get married (a possibility the minors had discussed, according to Brittany's testimony), Bisbee told the court, "My comment was, it is not like we live in Utah."
Nik's affidavit establishes an alleged motivation for Sloan's accusations against Bisbee, but Kemp's motive remains unclear. Sloan's discovery that Jon and Nik were staying at his house without her knowledge had already raised the possibility of legal action against Kemp, according to Bisbee. Plus, Kemp had previously worked for and with Bisbee's ex-husband, Scott, who at the time was making substantial child-support payments to Courtney.
Also, there's the contention by Courtney Bisbee that Mike Kemp once asked her out, despite his being a married man. Bisbee says she turned him down, and Kemp denies that he ever did such a thing.
Scott Bisbee, who now lives in Las Vegas, would not speak with New Times. Mike Kemp, a finance manager with Legends Cadillac in Scottsdale, did talk, suggesting that Bisbee got what she deserved.
"There are a lot of gray areas there," Kemp says. "I think she put herself in the wrong place at the wrong time too many times."
Ironically, even Courtney Bisbee realizes in hindsight that she was far too naive in dealing with the group of teens she had befriended, inadvertently making herself a target for outrageous accusations.
True to Nik's affidavit, Sloan filed a lawsuit days after Bisbee was convicted in January 2006, but not against the Paradise Valley Unified School District. She targeted the Kemps and Courtney Bisbee, but she did not get the windfall that Nik said she expected.
A motion filed in U.S. District Court last March by American Family Mutual Insurance Company, Michael Kemp's insurance carrier on his homeowner's policy, reveals that Sloan and Jon "accepted the plaintiff's settlement offer of $5,000" on October 25, 2007.
It turned out that the lawsuit was more fruitful for Bisbee's case than for the mother and son.
During depositions for the court claim, a morass of damaging information seeped out concerning Sloan and Jon. Most significantly, Sarah Babcock, a 16-year-old ex-girlfriend of Jon's, testified that, on several occasions, Jon had admitted to her that his allegations against Bisbee were false. Questioned under oath by Bisbee's attorney in the civil case, Scott Ambrose, Babcock related that Jon had told her nothing occurred between him and Bisbee, that his mother had put him up to the deception.
"What exactly did Jonathan say?" inquired Ambrose.
"He said that him and the nurse did not do anything," replied Babcock. "That his mom was making . . . him say that for the money."
Ambrose followed up, "Did he tell you anything about whether or not it was a secret?"
"Yes," answered Babcock.
"What did he say about that?" Ambrose inquired.
"He told me not to tell anyone," said the girl.
Babcock's testimony was videotaped, and in it, she comes across as poised and straightforward. The teen explained that Jon confessed to her on four or five occasions in 2004 that the accusations were bogus, but she did not tell anybody because Jon made her promise to keep the confidence.
Attorney Ambrose made sure that Babcock comprehended what her testimony could mean for Bisbee and for Jon.
"You understand the serious nature of your testimony today?" pressed Ambrose.
"Yes," answered Babcock.
"That based upon your testimony, Ms. Bisbee could be given a new trial?" the attorney continued.
Babcock answered that she understood. When Ambrose later told her that Jon could get in trouble because of what she was saying, and that she could get in trouble if she lied under oath, she indicated that she grasped the consequences involved.
It is important to note that Babcock did not know Courtney Bisbee and had no reason to fabricate anything. In fact, Babcock reveals during her deposition that Ambrose met her while he was interviewing another potential witness.
Confronted later by Ambrose with Babcock's account, Jon claimed that he had lied on several occasions, to Babcock and others, about what really happened. He had told people that the whole story of him and Bisbee was false, just to get them off his back. Thus, Jon testified, he was lying when he said he lied. The remainder of his deposition was equally eyebrow-raising.
For instance, he admitted that he was sexually active before the alleged Bisbee incident, relating to Ambrose that he had been caught by a girlfriend's mom at 3 a.m. in the girl's bedroom with the girl's top off. (The girl in question was not Babcock.) Jon stated he had touched women's genitals before the alleged contact with Bisbee, and that he had informed his buddies about his conquests. Jon confirmed to Ambrose that he'd first smoked pot in seventh grade.
Jon acknowledged that his mother spoke of suing the school district in 2004, before they had hired a lawyer. And, surprisingly, he claimed there was another incident in which he and Bisbee touched inappropriately, though he had never revealed this to any authority before the day of his deposition.
As Ambrose grilled him, Jon first claimed he had both testified in court and told the Scottsdale Police Department that Bisbee had placed his hand on her breast on the day she pulled him out of school to babysit. Jon never revealed this during Bisbee's trial, and he never told Scottsdale cops of this touching of her breast. Less than a minute later, he backtracked and asserted that the touching was a new revelation.
"And you never . . . told Detective [Christopher] Kinder that you were touching her breast the day you babysat Taylor Lee, did you?" queried Ambrose.
"No, I didn't remember," said Jon.
Ambrose again: "And you never told it at trial?"
"No," replied Jon.
"And it's not in the disclosure statement; you haven't disclosed it in this lawsuit as far as you know?" asked Ambrose.
Ambrose: "So this is just a new development that you remember now?"
"Yes," answered Jon.
Ambrose had shredded Jon's credibility, and when Janette Sloan was deposed, he did the same to her. During her deposition, she admitted to pleading guilty to several misdemeanors, including shoplifting, and to having brought prior legal claims against others. She acknowledged living in the warehouse at the time of the alleged molestation, and that her sons Nik and Jon did not want to live with her.
Grudgingly, she confirmed that Nik and her boyfriend, Paul Cathey, had engaged in a physical confrontation. She referred to Jon as "not a forthcoming kid" and could not recall when or how she had learned of the precise details of the alleged molestation, which she reported to the Scottsdale PD on February 6. She admitted telling police that she had known her sons were staying with the Kemps when, in fact, she had learned this only when Bisbee pulled Jon from school on February 2, 2004.
Sloan's checkered existence has continued in South Carolina, where she took her son Jon against the wishes of his father. In an affidavit filed with Charleston County family court in May 2007, Sloan's ex-beau, Cathey, detailed how he had paid Sloan's living expenses, even after they separated in August 2006.
In the filing, Cathey sought custody of his daughter with Sloan and painted a lurid portrait of Sloan as suicidal and in a declining mental state, with Jon once finding her passed out in bed, next to an empty bottle of sleeping pills. Cathey said he believed Sloan might flee to Arizona with their daughter. And he described Sloan's alleged harassment of a neighbor, attaching a police report for the file.
When New Times contacted the neighbor by phone, she described herself as Cathey's girlfriend and said that she had had to call the police more than once on Sloan for showing up on her property and confronting her.
Finally, a woman identifying herself only as a family member of Sloan's has written Bisbee in prison, e-mailed Bisbee's parents, and mailed copies of her correspondence to Judge Granville, County Attorney Thomas, and Governor Janet Napolitano. In the communications, she expressed her belief that Sloan is lying and that Bisbee is innocent and should be released.
"If [Janette] thought she was getting a lot of money, she would do anything," states the correspondent, after confirming her identity to New Times (she asked that her name not be used). "I am sorry to say I am related to her."
Courtney Bisbee's experience with the Arizona justice system has left her disappointed and frustrated — with the cops who investigated her case, with some of the lawyers who represented her, and with County Attorney Andrew Thomas' office.
Detective Christopher Kinder, who in 2004 was assigned to the Scottsdale Police Department's Sex Crimes Unit, caught the case on February 10, four days after Janette Sloan filed a restraining order against Bisbee and lodged an official complaint with the department.
Kinder had Sloan pull Nik and Jon out of school so he could interview them at the Scottsdale Family Advocacy Center, which is run by the Scottsdale police and claims to be a non-confrontational setting where different agencies can cooperate on such cases. According to Nik's interview with New Times, his mother coached him during the drive to his sit-down with Kinder.
"Not so much on what I should say," remembers Nik of the conversation, "as what she wanted me to say."
The sessions were videotaped, and Kinder first interviewed Jon, who wove his tale of kissing Bisbee on different occasions, and then of the alleged molestation itself beneath the blue blanket — which Kinder never took into evidence or even confirmed existing. In fact, there is no record of Kinder even visiting the alleged crime scene.
New Times wanted to question Kinder concerning these and other details, but he declined New Times' request for an interview.
In Kinder's interview of Nik, his questions veered off course when the 15-year-old did not tell him what he wanted to hear. Nik related that he had been sick on February 5 and mostly slept while in Donnie Kemp's bedroom with everyone else. The detective appeared intent on getting Nik to corroborate what Jon had said, but Nik offered up no incriminating evidence.
Kinder suggested when Bisbee showed up and how long she stayed. He made statements such as, "I'll leave it up to you to tell me the next part," as if Nik was supposed to guess at what Kinder wanted to hear. Yet, Nik stuck to his story that Bisbee came by to bring him some Robitussin, spoke with him and the other kids, and left. The detective accused Nik of lying.
"I don't feel that you're being exactly honest with me right now. All right?" Kinder said at one point. At another, he suggested Nik was loyal to Bisbee, but that "you're not helping her by not being honest about it, okay?"
There were answers that should have alerted Kinder that he was on the wrong track.
"Is there any reason why [Jon] would lie about what's going on?" Kinder asked Nik.
The boy replied, "Maybe he feels like he'd get in trouble if he told certain things."
Later, Kinder asked, "So you think if [Jon] was gonna not be truthful with me it would be because he'd be afraid that he would get in trouble or [Bisbee] would get in trouble?"
Nik said, "That he would. He already knows she's in trouble."
In his police report, Kinder described what he called Nik's "evasiveness." He seems not to have entertained the possibility that Nik was telling the truth and that Jon was the deceptive one.
Kinder's interview techniques appear in stark contrast to Maricopa County's Multidisciplinary Protocol for the Investigation of Child Abuse, first developed in 1995 under then-County Attorney Richard Romley and subsequently updated in 2003 and 2004. The protocol gives guidelines, now mandated by the Legislature, for each type of agency responsible for such investigations.
For law enforcement, the protocol states: "Investigative interview[s] are to be approached with a neutral, fact-finding attitude for the purpose of collecting information after an allegation of abuse had emerged."
Maureen Domogala, director of the Childhelp Children's Advocacy Center in Phoenix, confirms the basic tenets of the protocol.
"The interview of a child is a fact-finding mission," Domogala says. "It's not to create evidence or suggest ideas. It's meant to have that neutral, age-appropriate conversation with a child about what may or may not have happened to them."
Kinder's interviews were the start of a series of missed opportunities and outright gaffes.
During the face-to-face with Jon, Kinder asked whether, when Jon touched Bisbee's privates, she was unshaven or smooth. Jon stated the latter, yet during Bisbee's incarceration without bond — a full two months — Kinder never ordered or asked that a physical examination be done of the school nurse. Bisbee maintains that she has never shaved her vaginal area.
Kinder had missed an opportunity to establish one of the few verifiable facts in the case. During the trial, he admitted his error. On the same subject, the new filing from attorney Ulises Ferragut includes affidavits from two women in jail with Bisbee just after her arrest. Both attested that Bisbee was unshaven, an observation they were able to make because of the jail's lack of privacy.
Kinder later entered Bisbee's residence, without obtaining a search warrant, while she was not home. Kinder testified that he had entered because Bisbee's door was open and he was "concerned about her welfare."
Later, Kinder had Bisbee arrested by officers in front of her house, where she was handcuffed in front of her distraught daughter. During his interrogation of Bisbee, she stated at first that Jon had tried to kiss her. Kinder badgered her into admitting that Jon landed a kiss.
"He had a crush on me," Bisbee said of Jon during the videotaped conversation. "He had intentions that he wanted to be more than friends. He had attempted to kiss me on two different occasions."
Kinder kept after her to admit the kiss was mutual, saying that such an admission would not harm her.
"You know the truth of the matter is, is that you did kiss Jon," Kinder insisted. "Okay? You kissed him, all right? Big deal, okay? You kissed a kid. But you can't even tell me that; you can't even tell me that truth."
Bisbee eventually conceded the point. She told New Times that at that moment in the interrogation, she was willing to allow Kinder to win what to her seemed like a game of semantics, to get him to stop berating her. After all, during one of Jon's passes at her, Jon's lips had briefly brushed against hers. Bisbee believed if she copped to the kiss, the whole matter might end.
Instead, Kinder pushed harder, demanding she confess that she molested the boy. But, on that issue, Bisbee never wavered. And has never wavered to this day. But why did she even talk to Kinder to begin with? She had the right to remain silent. The admission of a kiss was damaging, even if it was not unlawful.
"I've changed a lot," explained Bisbee from Perryville. "I always believed in the system. I was always taught to trust everyone. I always thought this was going to be kinda like, as long as I tell the truth, everything's going to be fine. I never thought they were going to take innocuous situations and [turn] them into something they weren't."
But Kinder did more than just blow things out of proportion.
At the first grand jury to bring charges against Bisbee, the detective testified that Bisbee had confessed to an illicit touch, and on the basis of this, Bisbee was held without bail for 66 days. Bisbee's attorney at the time, Tracy Westerhausen, got the case sent back to a grand jury because of Kinder's misstatement. The second time around, Bisbee was allowed out on $100,000 bond pending trial. During a pre-trial interview with a defense attorney, Kinder blamed his misstatement during the first grand jury on a stenographer's typo.
Another problem was that Bisbee's trial attorney, Joel Thompson, did not help her case much.
Bisbee and her family say the Phillips and Associates attorney persuaded them to go with a bench trial, claiming Judge Granville was like a stepbrother to him. Granville denied to New Times that there was any special relationship between him and Thompson.
Judging from the transcript, Thompson's performance during Bisbee's trial hardly seemed vigorous. Thompson's objections were few and perfunctory. In the recent legal action petitioning the court for a new trial, attorney Ferragut claims Thompson failed to properly investigate the case, interview significant individuals before trial, and ask pertinent questions of certain witnesses. Indeed, when Jon and Nik's mother, Janette Sloan, took the stand on the day before the trial's close, Thompson had no questions for her, a significant contrast to the working-over she had received from Bisbee's civil attorney, Scott Ambrose.
Contacted at his law office for comment, Thompson refused to discuss the case. Asked why, he replied, "Because it's history." When confronted with Bisbee's family's allegation that he was an ineffective attorney, he said, "That's their right. Some people hire a lawyer so they have an excuse, someone to blame. I'm just not going to participate in that."
Bisbee's recent motion for a new trial also whacks Thompson for his failure to call Britney Heeler's friend Samantha Strandhagen to the stand. Strandhagen's testimony could have undermined that of Heeler and Donnie Kemp, who were in the room kissing yet said they saw Jon and Bisbee kissing. Strandhagen said she had been part of a three-party call with Heeler and Kemp, and heard them discussing that nothing happened between Jon and Bisbee. Strandhagen also claimed she heard a speakerphone call between Brittany and Bisbee in which Brittany told Bisbee that Donnie and Jon "knew nothing happened."
In a sworn, notarized affidavit, Strandhagen said she traveled from Hawaii to testify on Bisbee's behalf.
"I was not allowed in the courtroom," Strandhagen recounted in the affidavit. "I don't know why I was not allowed to testify, but I was told Courtney's lawyer said it was too late for me to appear. I waited the whole time in the courthouse building."
Once Bisbee's friend, confidant, and babysitter, Brittany Heeler is now 21 and lives with her parents in Las Vegas.
In an interview with New Times, Heeler sounds remorseful about Bisbee's plight. She confides that she knew Jon was lying because Donnie Kemp told her so. Heeler said on the stand she had seen Jon and Bisbee kissing, but now she sounds convinced of Bisbee's innocence. She states that prosecutor Paul Kittredge offered to write her a letter of recommendation for helping with the case.
"She was a very nice person," Heeler says of Bisbee. "I think that's why people took advantage of her. Every time I'd need help, she would help me. And I'd do her a favor and babysit Taylor Lee . . . Last time I was in the courtroom, I was crying. I couldn't even look at her in her face."
As for Judge Warren Granville, he found Bisbee guilty beyond a reasonable doubt after refusing to allow Dr. Gene Abel, a nationally known expert on pedophilia and deviant sexuality, to testify. After rigorous, scientific screening, Abel concluded that Bisbee was not a pedophile. The exclusion of Abel as a witness became the basis for the initial appeal of Bisbee's conviction. Granville had ruled Abel's testimony was irrelevant to the matter at hand — whether or not Bisbee molested Jon. The appeals court upheld his decision.
Granville declined to discuss certain matters regarding the case because the Bisbee motion for a new trial will ultimately go before him. He told New Times that there was enough evidence to convict Bisbee in 2006, but he noted that he was able to legally consider only the evidence presented during the trial.
County Attorney Andrew Thomas' office was well aware of the new evidence in the Bisbee case even before the motion for a new trial was filed recently. Sarah Babcock's exculpatory testimony in the lawsuit Janette Sloan brought has been on file in Superior Court for about two years. The affidavits from Nik Valles' recanting his testimony and from Samantha Strandhagen's alleging perjury among prosecution witnesses have been on file since 2007.
Thomas' office has been inundated with information about the new evidence, and Bisbee herself filed several motions (before her lawyer's recent action) containing much of the exculpatory material. A binder with new evidence sent to the Scottsdale police was forwarded to the County Attorney's Office.
In addition, South Carolina private investigator Elly Thackston did her own research, pro bono, into the case when a Bisbee supporter informed her about the case and Janette Sloan's South Carolina connection. Thackston sent an affidavit to the County Attorney's Office swearing as to what she had discovered, and attaching court documents concerning Janette Sloan's activities in Charleston. She followed up with a call to Thomas' office and got Rachel Mitchell, the office's sex crimes bureau chief, on the line. Mitchell, who supervises attorneys prosecuting such cases, acknowledged she had received Thackston's information.
"Something ha[s] to be done about this," Thackston says she told Mitchell. "We have a young lady sitting in prison that doesn't need to be there."
Mitchell gave Thackston no indication that the office would investigate. The PI says she felt Mitchell was giving her "the runaround."
New Times has made a formal public-records request through Thomas' public information officer, Mike Scerbo, to view all Bisbee documents in the county attorney's possession. So far, Scerbo has not complied with this request as required under the Arizona Public Records Law. Nor has the office responded to a request for comment on the case.
Earlier this year, the American Bar Association passed amendments to its model rules of professional conduct, making plain the duties of a prosecutor when faced with new evidence suggesting a wrongful conviction. The ABA says prosecutors have an obligation to disclose new information to the court and to the defense and, if the facts warrant it, open a new investigation.
According to Ed Novak, president of the State Bar of Arizona, the new rules have not yet been adopted in this state and may not be for at least another year. Until that happens, prosecutors cannot be sanctioned by the Bar for neglecting to act in such cases.
But this does not let Thomas off the hook, according to legal experts.
"The prosecutor's job is to do justice, not uphold convictions," explains Stephen Saltzburg, a professor at George Washington University Law School who helped author the ABA's new rules. "And justice means making sure people aren't wrongfully convicted, and if they have been, doing something about it."
Saltzburg noted that most prosecutors already agree with this description of their duties. In fact, the few prosecutors who objected to the passage of the ABA rules did so because they believed a prosecutor's justice-seeking role is already clear.
Former County Attorney Rick Romley could not comment on the specifics of the Bisbee matter, but he heard in the description of it an echo of the Ray Krone debacle.
Krone was twice falsely convicted of a brutal homicide and spent a decade in prison, part of it on Arizona's death row, fighting the charges. In 2002, DNA evidence exonerated Krone, and he was set free ("About Face," Robert Nelson, April 21, 2005). Romley publicly apologized to Krone in a news conference.
"The defense lawyer brought to my attention new evidence," Romley recalls. "We went through it, and actually I had him released from prison and dismissed the charges."
One of the lawyers who helped free Krone was Phoenix attorney Alan Simpson, who has contributed an analysis of Bisbee's case to Ferragut's motion for a new trial. In it, Simpson alleges instances of ineffective counsel on Joel Thompson's part, including the failure to interview certain witnesses, Thompson's lack of objections, and his alleged assertion of a special relationship with Judge Granville.
The new motion contends that the County Attorney's Office withheld evidence from the defense before trial, specifically statements made by Jon Valles' dad, Gene, informing both Detective Kinder and prosecutors that Jon had a reputation for lying, had "problems at school and with the police," and that brothers Jon and Nik were coerced by their mother to make false allegations against Bisbee.
Such pre-trial suppression of evidence, says attorney Ferragut, is a serious violation of Bisbee's constitutional rights and rules governing evidence.
The first things that come to mind in the Courtney Bisbee case are the high-profile prosecutions of teachers who have had affairs with students — such as Mary Kay Letourneau in Washington state (Letourneau had sex with a 13-year-old student when she was 34), Debra Lafave in Florida (Lafave had sex with a 14-year-old while she was 23), or Jennifer Mally, a teacher at Paradise Valley High School (she had sex with a 16-year-old when she was 26).
But there are huge differences. All these women ended up pleading guilty, but Bisbee has always maintained her innocence. Bisbee was a nurse, not a teacher, and Jon Valles did not go to her school. Most importantly, all parties agree that Jon and Bisbee never had sexual intercourse.
Nevertheless, her sentence for the one alleged physical contact has been far harsher than the sentences for all three of these women combined. Letourneau initially received a three-month sentence in 1997, served it, and when she engaged in sex with the boy again, was hit with a sentence of 71/2 years, of which she served about six. In 2005, Lafave got three years of house arrest and seven years of probation.
As for Mally, she served six months in Perryville, where Bisbee is to serve 11 years. Because of the older age of Mally's accuser, her crime carried a less-severe sentence.
(Ironically, e-mails from one of Bisbee's string of lawyers suggest that the County Attorney's Office made a "probation eligible" plea offer to Bisbee at one point, which might have allowed her to avoid prison altogether. Prosecutor Kittredge later removed this possibility, claiming to a Bisbee attorney that the plea offer really had never been on the table. Bisbee's current sentence represents the mandatory minimum for child molestation, plus one year tacked on by Granville.)
In some ways, Bisbee's is more akin to cases involving false accusations of child molestation and convictions obtained with unreliable testimony.
Such travesties bring home the importance of the prosecutor's role in the criminal justice system.
"The prosecutor does have an ethical duty to seek justice," former County Attorney Romley insists. "As hard and as difficult as that may be, we're not here to just get notches on the belt."
Yet Thomas, who brags about seeking the harshest possible penalties for those charged with crimes, is particularly proud of the cases in his win column, and does not relinquish them easily.
Meanwhile, Bisbee spends her days behind the walls of Perryville, poring over law books and praying for a reunion with her lost daughter.
A mere 5-foot-2, Bisbee says she does not fear for her safety, though she has witnessed all kinds of violence in prison.
"I don't believe I'm in danger," she tells New Times. "Because, believe it or not, the inmates believe that I'm innocent, that I've gotten a raw deal. They have more heart and more character than County Attorney Andrew Thomas ever will."
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