REVERSAL OF MISFORTUNE
In January 1993, James Elmer McPheeters was sentenced to six lifetimes in prison for sexual exploitation of a minor. McPheeters owned a collection of 30 dirty magazines, two videos and a deck of obscene playing cards, all depicting children in a sexual context, and each of those items earned him 17 years, for a grand total of 561 years.
Ironically, he'd already beaten a seemingly airtight charge of child molestation, even though he'd been caught with his face in the crotch of a 5-year-old boy. Instead, McPheeters was convicted of fantasizing about kiddie sex, and the punishment doled out by Superior Court Judge Ruth Hilliard was 26 times more severe than if he had been found guilty of having sex with a child himself. A conviction for sexual molestation carries a maximum sentence of 21 years.
Last week, on September 19, the McPheeters case was reversed by the Arizona Court of Appeals and sent back to the lower court for retrial. The original trial judge, the higher court ruled, had allowed an overzealous Maricopa County prosecutor to introduce as evidence earlier allegations against McPheeters of sexual abuse, including the incident with the 5-year-old boy.
Before McPheeters was sentenced, his attorney, Morton Rivkind, wrote in a brief that ". . . the court has erred in matters of law, specifically in permitting the evidence of the Defendant's acquittal of child molestation charges to be heard by the jury. This evidence was so prejudicial and so overwhelming that the defendant probably got convicted because of those charges as opposed to the evidence before the jury."
The Court of Appeals, in an as-yet-unpublished decision, agreed.
But it's not true.
I sat on the jury that convicted McPheeters.
We, the jury, were unaware of the penalties that his offenses carried. And we were astounded--even annoyed--that the prosecutor was allowed to bring up those past accusations.
But when it came to the legal questions placed before us, there was very little disagreement. The judge had asked us to decide if the materials belonged to McPheeters, and if they depicted children younger than 15 in sexual contexts.
And the answer to both questions was an easy "Yes."
I was surprised to find myself empaneled. Lawyers don't usually like to put reporters on juries, and in this case I thought I had a sure-fire disqualifier.
I had been culled from a hundred or so prospective jurors who had been asked to fill out a lengthy questionnaire about pornography. One of the questions asked if I would keep copies of Playboy magazine in a house with small children. I have children, and, over the last ten years, I've written a number of articles for Playboy, and I said so on the questionnaire, assuming that it would get me off the jury. Instead, it got me on.
Bruce Foremny, the Glendale detective who had investigated the case, told me shortly after the trial that he had asked I be included, saying, "I figured you'd understand the difference" between what was truly obscene and what was merely erotic.
"This is a case about pictures," said deputy county attorney Laura Reckart in her opening remarks. And in Arizona, a picture is worth a thousand years. The laws covering sexual exploitation of minors do not distinguish between the pornographer and the person who looks at the pornography; they reason that both have taken advantage of the child depicted.
But this was more than a case about pictures.
Reckart is a young woman with an older woman's repertoire of courtroom facial expressions--raised eyebrows, pursed lips, ironic smiles--the kinds of faces that one might acquire quickly from working in sex crimes, as if the job speeds up the aging process.
She'd already lost one trial against McPheeters, and so her story began long before anyone knew anything about pictures. She graphically and convincingly replayed for the courtroom all of McPheeters' alleged earlier sins.
McPheeters had supposedly been caught in the act.
A young mother--we'll call her Amy--walked into the kitchen of the Glendale house where she and McPheeters both rented rooms and allegedly found McPheeters performing fellatio on her 5-year-old son. McPheeters did not deny the incident. Rather, he later claimed that the child had tried to physically force him into performing the sex act.
Why the mother had not picked up the nearest blunt object and caved in McPheeters' head may be the incident's greatest mystery.
This cast of characters seemed an improbable and incredible study in dysfunction. They would show up in court in jeans and sweat shirts and other inappropriate attire, as if they had no idea of how to comport themselves. Their histories and McPheeters' were so intertwined as to be unbelievable.
Amy was separated from her husband, but she and her little boy lived in a house with her father-in-law--who we'll call Steve.
Steve and McPheeters worked together at a west-side adult movie theatre called Pornorama. They even looked alike: the same beards, the same bellies, the same unhealthy pallor and chronic wheeze. The trial's most dramatic witness was a 20-year-old woman we'll call Karen. Karen was very pregnant, an inarticulately eloquent girl with fingers full of rings and hair tinted a violet sheen of henna.
Her stepfather--call him George--also worked with McPheeters at the Pornorama, but Karen had known McPheeters for much longer.
McPheeters, Karen claimed, had been best friends with her real father--until the day McPheeters was first accused of molesting Karen, who was then 3 or 4. Karen's mother corroborated her testimony.
McPheeters was exiled from the family. But years later, he showed up again and picked up where he left off and molested Karen on a regular basis. Karen claimed that McPheeters lost interest in her sexually when she reached puberty, but in police reports, she claimed that McPheeters would lend her out to friends who wanted to have sex with her. In 1988, when Karen was 15, she finally pressed charges against McPheeters--only to recant. In the eyes of police and prosecutors, this forever tainted their chances of getting a conviction against McPheeters. When Karen first pressed charges, again according to police reports, her mother's sister came forward and said that she, too, had been molested by McPheeters when she was a child. McPheeters also had allegedly turned his attention to Karen's younger brother and stepbrother.
The latter of the two, a pudgy little 9-year-old, testified against McPheeters in the 1993 pornography trial. He smilingly detailed how McPheeters had fondled him when he was 4; defense attorney Rivkind quickly discredited the boy by asking him how he knew he was 4 years old when the incident occurred.
"I heard my mom telling me I was 4," he cheerily responded.
He had been the most convincing witness. Steve and George claimed to have held conversations with McPheeters about sex with children. But they had still allowed him access to their families, and then acted outraged when McPheeters allegedly acted on his impulses.
McPheeters was the least credible of all. When he took the stand against his attorney's will, he repeated some damning remarks about the molestation of the 5-year-old for which he had been acquitted.
"I believe you testified, [the boy] had his leg around you and was trying to thrust his penis in your mouth," prosecutor Reckart asked of him. "Is that correct?"
McPheeters answered, "If I am not mistaken, I testified that he tried to put his leg over my shoulder to climb up on me."
Somehow, the jury had not been convinced beyond a reasonable doubt, and McPheeters beat the rap.
Shortly after McPheeters was arrested for the molestation of the boy, but long before he went to court, Steve, the boy's grandfather, and Amy, the boy's mother, decided to "clean out" McPheeters' room. Steve told the court that he wanted to give the room to his grandson, but why he imagined the boy would want to live in the lair of his predator is unfathomable. Hearing the story, it smacked of a setup, as if the searchers knew exactly what they were looking for.
In the room's closet, they found briefcases and boxes full of sex toys and videos and magazines. The movies on the videos had been copied so many times they were blurred and nearly impossible to make out, but they filled the TV screen with images of private parts being poked and prodded like so much raw meat.
The magazines were even older than the copies of Newsweek and People in the jury room. McPheeters claimed he had purchased them in the 1970s, which was before legislators had the common sense to make them illegal. They had foolish names like Chicken Supreme and Joy Boys. Some purported to be treatises on nudism--tousle-haired youngsters frolicking alongside their naked parents. Others obsessed about teenage boys with erections. Most were filled with pathetic photographs of 4- to 9-year-olds pouting alluringly and thrusting their pelvises toward the camera.
As a father, some pictures filled me with pure rage: an intensely disturbing and hauntingly unforgettable picture of a beautiful girl who couldn't have been older than 8. She smiled innocently for the photographer--while impaled on the penis of a large and hairy man.
McPheeters claimed that he had bought the magazines as investments, as if he were some kind of perverted stamp collector, and he also claimed that he had sold them to Steve sometime back.
But of all the players, only McPheeters' prints turned up on the materials, except for one, which bore Steve's thumb- and fingerprint on the spine, as if he had picked it up and held it at arm's length like the dirty laundry it was.
I later learned from police records that detectives had also found in McPheeters' room a copy of a book about beating child-molestation charges. The judge had not allowed it as evidence.
The jury consisted of 12 people who were virtual strangers. Each day as we left the jury box, we were admonished not to talk about the case when it was the only thing we held in common.
But when we retired to the jury room for deliberation, we exploded in animated discussion that lasted more than an hour and a half--no argument, really, but rather an outpouring of disbelief at the two weeks we had just gone through.
I had wondered all along whether McPheeters was being tried on the pornography charges or if he was being retried on the molestation case. Many of the other jurors felt the same, wondering why the judge had allowed as much testimony about the earlier incidents as she had, especially since McPheeters had been acquitted.
The next morning we reconvened and got down to the charges at hand. There was little to discuss. McPheeters was guilty of all charges, but, just to make sure, we took another half-hour or so and went through each and every magazine, then called the bailiff and filed back into the courtroom. The deed was done.
Last week, after I heard that McPheeters' conviction had been overturned, I tracked down some of the other jurors to make sure that my recollections were accurate. Regarding the prior allegations, one of them, JoAnn Barnard, said, "I thought that if it didn't pertain to what was going on right then, they should have left it out of [the trial]. The man wasn't actually physically abusing anyone at the time."
Barnard claims that she had some questions about McPheeters' guilt, but voted with the majority to avoid a hung jury.
Another of the jurors, Finley Jones, felt more sure about the unanimity of the decision.
"I recall there were some discussions about his history," Jones says, "but I'm not sure that played such an important role in everyone deciding his guilt. That wasn't what the conviction was about."
When we had pondered McPheeters' guilt in the jury room, none of us had the slightest inkling as to the severity of the punishment he would receive; we assumed it would be a lesser sentence than that for child molestation. We had to read it in the newspapers to find otherwise.
"I saw that little blurb in the paper about his sentence--my jaw went to the floor!" says juror Barnard. "He supposedly committed a crime that's worse than rape or murder? That's stupid."
Shortly after the sentencing, I received a philosophical letter from Edward Krawczak, the Sun City retiree who had been the jury foreman. Krawczak had attended the sentencing.
"On the way home, I thought about the severity of the sentence," he wrote, "when a person guilty of second-degree murder gets only ten years. I got over this when I recalled the testimony of the young woman whose life was ruined by being abused over a period of ten years. I felt thoroughly absolved when I recalled the judge's instructions: The juror's sole responsibility is to determine whether the defendant is guilty beyond all reasonable doubt. The sentence is the responsibility of the judge and as specified by law."
I, on the other hand, felt a great weight from having sent a man to jail for five and a half centuries for looking at obscene pictures. I would have no second thoughts about sending him there for child molestation. And even though I felt he was guilty of both offenses, he had only been convicted for the one.
Actions may speak louder than words, but they do not speak louder than pictures. Whether McPheeters committed an abusive act against any child was apparently a matter of one unsavory witness's word against another's. The pictures, however, were irrefutable.
Last September, the Arizona Court of Appeals set free a young man named Douglas Gates, who had been convicted of sexual exploitation of a minor for clandestinely videotaping his young Sunday-school students while they changed clothes ("An Obscene Loophole," December 1, 1994). Although Gates clearly had photographed the children for his own sexual gratification, the judge noted that the videos did not depict children in sexual contexts; they were merely changing clothes, and that did not constitute lewd and lascivious behavior as the statute required.
In his reasoning for the Gates reversal, Appeals Judge E.G. Noyes Jr. wrote that bad intent is not illegal, however reprehensible the intent might be.
"We disagree with this argument to the extent that it rewrites the statute into one that criminalizes aberrant thoughts without regard to whether the film or photograph produced by those thoughts depicts any minors in sexual conduct," he wrote.
In the McPheeters case, the prosecution brought up his past sexual misconduct to show, as stated in early briefs, his "ongoing propensity to commit sexually aberrant acts."
"Our purpose was in demonstrating his intent in possessing it," recalls prosecutor Laura Reckart. In other words, to show that he might use the materials to seduce children. In fact, he had shown young Karen the pictures in the book Show Me, a 1970s coffee-table book that was supposed to teach children about sex, but has since been judged obscene itself.
The rest of McPheeters' pornographic materials had only been discovered because McPheeters had been arrested on suspicion of child molestation. And so Reckart reasoned that the earlier behavior "completed the story." Judge Hilliard of the Superior Court apparently agreed. The higher court did not agree.
In a line of thinking similar to his Gates decision, Judge Noyes wrote of McPheeters, "Possession of sexually exploitative material is dissimilar in nature to an act of child molestation. There is a substantial difference between viewing a book or videotape on a subject and actually performing the depicted act."
Morton Rivkind, the attorney who defended McPheeters in Superior Court, thinks that Reckart overtried the case.
"If she had just gone on with the materials and the expert saying, 'These children [in the pictures] are under such and such an age,'" Rivkind points out, "if you were a juror--especially not knowing the penalty he was facing--you would say, 'I don't buy that he sold this stuff,' and that would have been it. It was a simple case, and they made it complicated."
In retrospect, Reckart concedes that she may have gone too far.
"When you look at the case itself, it looks like a slam dunk," she says. "But then, so does the case he was acquitted of prior to that."
The decision by the judge to admit those prior acts in testimony, the decision by the prosecution to hammer at them, according to the Appeals court, ". . . might have aggravated it by giving this jury a silent message to make sure that the Appellant did not 'get away with it' in this trial."
Although I think that may indeed have been the prosecution's "silent message," I'd like to think we saw through it. And I'd like to believe--despite the unfairness of the sentence--that we sent James McPheeters to jail on the basis of the law.
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