Proselytizing Prosecutor Strikes Again
By most accounts, the child-molestation case against Mesa appliance-store owner Arvine Hardwick was sound.
At trial in early 1994, Hardwick's three alleged victims--sisters then ranging in age from 12 to 16--held their own as they told horrific tales of misplaced trust and seduction. A Maricopa County jury then convicted Hardwick of 16 felonies.
"I think he should get the electric chair because he hurt me and my sisters and my whole family," one of the girls wrote to Judge Maurice Portley before sentencing.
Portley did what he could to accommodate that request. He sentenced Hardwick to 224 years in prison under Arizona's strict laws governing crimes against children.
If the conviction and sentence passed muster with the Arizona Court of Appeals, Hardwick could have counted on spending the rest of his life behind bars. But they didn't.
Citing a prosecutor's "egregious error," the appellate court recently ordered a new trial for Hardwick, concluding that "based on the dimensions of the error in this case, [Hardwick] was deprived of a fair trial."
The error? Deputy county attorney Anne-Michael Bowen (her surname then was Williams) repeatedly and improperly used a treatise titled Child Molesters: A Behavioral Analysis during her rigorous cross-examination of Hardwick.
"The prosecutor purposely and repeatedly introduced the damaging contents of this unadmitted and inadmissible document," Judge Sarah Grant wrote in the appellate court's 3-0 opinion, "and then subsequently argued to the jury that [Hardwick] was a child molester based upon the characteristics set forth in the document. The error is both reversible and fundamental."
The Hardwick case wasn't the first time Bowen had been overzealous in the courtroom.
In July 1995, her supervisors reprimanded her after she filed court documents describing a Buddhist defendant accused of beating a child as a pagan who "has chosen a path of eternal damnation. ... Christianity is the only true path of an everlasting life."
Bowen also urged a judge to send that defendant to prison, where, "away from the demonic influences of his pagan family, [he] will have the real opportunity to come to find salvation through Jesus Christ."
Though convictions (courtroom, not religious) never are a certainty, the odds were solidly against Hardwick after his August 1993 grand jury indictment.
The case started when the eldest of the three alleged victims told her mother that Hardwick had molested her. The mother then questioned her two younger daughters, who confirmed that Hardwick had molested them. (Police reports indicate the incidents included sexual intercourse with one of the girls, starting when she was 8 or 9.)
The mother contacted Mesa police, who investigated and then asked the oldest girl to speak with Hardwick by telephone. The police secretly taped that conversation, during which the girl told Hardwick that her mother planned to take her to a gynecologist. She told Hardwick she was worried that he had taken her virginity by penetrating her with his fingers.
"See, I never did that," Hardwick told the girl. "I never went in far enough. ... No, siree, you have nothing to worry about as far as that's concerned."
At his trial, Hardwick testified he'd accidentally "goosed" the girl, and that was what he'd referred to on tape.
Observers of the trial say that and other unbelievable explanations put Hardwick in a precarious position--before Bowen conducted her controversial cross-examination.
During that cross, Bowen established that Hardwick was older than 25 when he married; had dated little before marriage; had a keen interest in children; had several childhood friends who were neglected by their families; was the "nice guy" in his neighborhood with whom children discussed problems; and hadn't been engaging in sex with his wife or other adults.
"Based on those traits," Bowen asked Hardwick, "isn't it also true that you are a classic child molester?"
Hardwick said he had no idea. The prosecutor handed him the pamphlet on pedophiles and asked him to turn to a certain page.
Hardwick's attorney, assistant public defender Frank Conti Jr., objected, saying Bowen was posing questions based on hearsay and improper expert opinion.
Judge Portley overruled the objection, noting, "She is directing his attention [to a page] at this point in time."
Bowen continued to confront Hardwick with the pamphlet, without further objection from Conti.
Bowen's line of questioning, the appellate court concluded, never should have happened.
"There is no reference to or discussion of [the pamphlet] prior to the cross-examination," Judge Grant wrote. "The state did not offer any expert testimony, nor did it offer any foundation that [it] is a reliable source of information on the subject. ... The prosecutor forced [Hardwick] to testify in a manner that was particularly self-incriminating. ... [Bowen] could not have made these arguments, but for its calculated effort to establish the relevant characteristics on cross-examination."
Court transcripts indicate that Bowen considered the pamphlet key to her case. In her closing argument, for example, she reminded the jury of the "admissions" of Hardwick and other defense witnesses about classic pedophiliac behavior.
"They want to say the character traits are not that of a molester," Bowen said, "but on the other hand, they admitted that each and every trait did fit into that category. ... The whole litany of what is a pedophile, each and every quality, belongs to the defendant."
In response and, in hindsight, desperation, defense attorney Conti shook the pamphlet before the jury and took out a cigarette lighter.
"Every good witch hunt needs a torch," he said.
"Put your lighter away, Mr. Conti," Judge Portley warned. "Don't destroy my exhibits."
"I was not going to use it," Conti replied, then continued with his metaphor.
"If it was up to the prosecution, we would just pass one of these [pamphlets] out to each of you, set them ablaze, tie a millstone around [Hardwick's] neck and throw him in the Salt River..."
The jury didn't buy Conti's last-minute dramatics, and convicted Arvine Hardwick.
Now, almost two years after he was sentenced, Hardwick has been given a second chance. Bill FitzGerald, a spokesman for the Maricopa County Attorney's Office, says the office intends to retry Hardwick. Court records indicate that no trial date has been set.
But Hardwick won't have to contend with Anne-Michael Bowen in the retrial. FitzGerald says she has been reassigned to Juvenile Court in Mesa.
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