The Mix Rape Trial: Justice Screwed
Editor's Note: This story was changed from its original version to eliminate the name of the victim.
Well, the law has been screwed. And this war is over.
A woman, who said she was the victim of a vicious rape by a police officer, has now become a victim of a stupid and insensitive jury.
Now she no longer trusts either the police or the justice system. Neither can the rest of us.
She risked everything by going to court and telling her story. In a remarkable display of insensitivity to the facts, the jury refused to believe her.
First let's hear what she has to say about being raped by a Department of Public Safety officer who had a sick compulsion to prey upon women drivers late at night.
She speaks calmly, but with deep sadness.
"I remember everything from the time he pulled me over to the time he dropped me back off," she begins.
"I knew right away he was pulling me over for a bogus reason. I wasn't swerving or speeding. He told me hadn't clocked me but thought I was speeding.
"This same officer had stopped me four days before because I didn't have the proper registration tags on my license plate. They were still in my glove compartment. He let me go with a warning ticket.
"He lived in the same apartment complex as my boyfriend. He could actually see my car in the parking lot from his balcony. It was obvious that first time he stopped me that he'd followed me from my boyfriend's house. "This time he put the flashlight in my eyes and he gave me a field sobriety test.
"Then he ordered me to get into his car.
"I asked him where he was taking me. He told me to just get in the car.
"I thought he was either trying to scare me or taking me to jail. I did what he told me. He drove me to a construction site.
"He handcuffed me to him. I told him to take off the handcuffs. He took out the keys and jingled them in front of my face. He thought it was funny.
"He told me that even if he took the handcuffs off that I couldn't run away because he had a gun." According to the victim's testimony, Martin Mix raped her and then brought her back to her car.
Mix told her she was free to go. She had already been punished for driving under the influenceÏby Mix.
At the trial, he testified that he was on overtime during the rape but decided not to turn in a request for premium pay.
How does that strike you?
She went directly to her boyfriend's apartment, which wasn't far off the Black Canyon Freeway where she'd been stopped.
"We called the Department of Public Safety to turn in the report. It turns out the dispatcher was Mix's best friend. He tried to talk my boyfriend out of filing charges.
"So we called the Phoenix police." One thing will always stick in her mind.
When the police took her to the hospital, they put her in the back of the cruiser behind a cage. Later, when they took Mix in for questioning, he was allowed to ride in the front seat.
"I was not a person. I was not the victim or even a human being from the first because he was a cop. That was my fear from the beginning. They were all sticking together.
"In the courtroom, I was put on trial. I felt I was the one who was being prosecuted." And she's right.
Tom Thinnes, 49, is one of the most skilled criminal defense attorneys in the county. He has been a lawyer more than twenty years and he likes challenges.
In 1985, Thinnes won an acquittal for Joyce Lukezic, who had already been convicted on two counts of first-degree murder in the infamous Redmond murder case. Lukezic was a client devoid of jury appeal who'd already been convicted despite being represented by Larry Debus.
In 1986, Thinnes won an acquittal for a man charged with first-degree murder by convincing the jury the wrong man was on trial.
In 1987, he won an acquittal for a man charged with second-degree murder in a shootout in front of witnesses on the Black Canyon Freeway during the Fourth of July weekend.
Unlike most defense lawyers, Thinnes doesn't have a flamboyant lifestyle. He has seven children and stays close to home. He is known as an incredibly hard worker once he undertakes a case. "I took the case," Thinnes says, "because I thought Mix was going to be railroaded simply because he was a cop." It was far from a big-money case. Thinnes has estimated his pay at only $8 an hour.
Much has been made of the dramatic moment when Thinnes slapped Mix across the face during his closing argument.
Thinnes chuckles when the incident is mentioned.
"If he got off this thing with just a slap in the face then he was getting off pretty easy," Thinnes says.
Thinnes says he never made a plan to slap Mix. During his closing argument, Thinnes decried all the circus atmosphere surrounding the trial. And then, with the TV cameras going, Thinnes walked over to Mix and slapped him so hard that welts rose on his cheek.
Mix, says Thinnes, knew nothing of the plan.
"I haven't seen him since. Who knows, he may come in at sentencing and punch me in the jaw." Mix was incredibly lucky. For along with Thinnes came the services of Mary Durand, one of the most skilled and tenacious private investigators in the state.
Court records reveal something Durand did behind the scenes was the turning point in the case.
She had pleaded guilty in a previous drunk-driving case. As a result, she was transferred to the Substance Abuse Screening Service. She was ordered to attend weekly Alcoholics Anonymous meetings and also to see a psychologist.
The doctor's records were to be confidential and only to be released to an authorized member of the Substance Abuse Screening Service staff.
Durand learned of the records. She marched up to the doctor's office and requested the records, for which a fee of $115 was due.
Durand produced a check to pay for the records. The clerk in the doctor's office assumed Durand must be authorized to pick up the records or she wouldn't be there.
Durand was bluffing. She had no right to the records.
In her file was the doctor's evaluation. She'd been in therapy with him during 1987 for seven months. Dr. Salomon diagnosed her as an alcoholic who viewed herself as being sexually exploited by men. There were all sorts of other statements that could be used to embarrass her. They were more than enough to put her on the defensive. In short, the purloined report provided the clear road to victory in the courtroom.
There was something else. Once again, the County Attorney's Office overcharged the defendant.
Not content to charge Mix with rape, deputy county prosecutor Paul Ahler added a bribery charge as well.
These multiple charges are generally made to impress the jury. The theory is that if there are so many charges then certainly the defendant must be guilty.
But Ahler made the enormous mistake of underestimating Thinnes' tactical skills.
Thinnes entered a plea of guilty to the bribery. It wasn't until this actually happened in court that it dawned on Ahler that he'd been outsmarted.
The truth is that there are believed to be six or seven other women who were victimized by Mix on the highway. One of them, a seventeen-year-old, had been attacked on the very night before the incident. She was waiting to testify, and now she wouldn't be able to take the stand.
Mix's admission in the bribery charge took all the other possible women witnesses out of the case.
From this point on, it would be only her word against that of Mix. Do you still think the jury was right in saying there was a reasonable doubt that Mix had a policy of raping women motorists on the freeway?
Then read this transcript of a telephone call, made by DPS officer Scott McElhaney to his wife at 2:19 a.m. the morning of the rape.
McElhaney was Mix's best friend on the department. Coincidentally, he was working as a dispatcher that night. His first instinct was to protect Mix.
The call was recorded by the Department of Public Safety, which tapes all calls on the dispatcher's desk.
McElhaney: You won't believe what's happened.
Wife: To who?
McElhaney: Marty. He did it again.
Wife: Did what?
McElhaney: Oh, I don't know if this line's tape recorded or not.
Wife: What line isn't?
McElhaney: Yeah, I know. . . . From Marty's past experiences, he is now in deep, deep shit.
McElhaney: Someone squealed.
Wife: What did he do?
McElhaney: Remember . . . another girl . . . remember?
Wife: While on duty?
McElhaney: Yes. He did it again . . . but this time the girl called the Phoenix PD.
Wife: And said what.
McElhaney: She said what happened.
Wife: Why did she squeal?
McElhaney: I even tried to ring his house to warn him.
Wife: He said he was done with it, too. Are you sure this isn't the one from a while back.
McElhaney: Nope. Brand new. . . . Hey, he's gonna spend time in the goddamn state prison for this. I'm serious.
Does that leave any room for doubt in your mind?
Here's the transcript of a second call McElhaney made that night. This one was to Mix, whom McElhaney reached in his home at 4:45 a.m., according to Department of Public Safety records.
McElhaney: Hey . . . Marty?
Mix: Yeah. Who's this?
McElhaney: Scott. . . . Nobody called you, did they?
McElhaney: Okay. . . . I'm warning you . . . that girl . . . Mix: Uh-oh.
McElhaney: Her boyfriend called.
Mix: What girl?
McElhaney: The girl from last night.
McElhaney: She called Phoenix PD.
Mix: Uh-oh! McElhaney: The boyfriend lives right in your complex.
McElhaney: So I figured I'd warn you. . . . The boyfriend wants to charge rape.
Do these telephone conversations, made within hours of the assault on the woman, leave any doubt in your mind as to whether she was telling the truth?
Do they not make it clear that Mix made a habit of stopping women motorists and harassing them? "He handcuffed me to him. . . . He took out the keys and jingled them in front of my face."
The truth is that there are believed to be six or seven other women who were victimized by Mix on the highway.
Get the This Week's Top Stories Newsletter
Every week we collect the latest news, music and arts stories — along with film and food reviews and the best things to do this week — so that you'll never miss Phoenix New Times' biggest stories.