Last year, when I was writing about Arizona prisoner Courtney Bisbee and her fight for freedom, in the cover story "Nursing Injustice," I spoke with Judge Warren Granville by phone and wondered whether, when the case came back to him, he would be able to admit that he'd been mistaken in sending Bisbee to prison for 11 years on bogus child-molestation charges.
Before I give you Granville's reply, I'll need to run through a little history.
See, back in 2006, Bisbee and her family played roulette with her life and bet on Granville's black robe. On the advice of her attorney at the time, Joel Thompson, Bisbee waived her right to a jury trial, opting for a bench trial with Granville. Bisbee and her family now say Thompson persuaded them to do so by claiming a social relationship with Granville, a former prosecutor.
Thompson never answered the claim, hanging up on me shortly after I called him for a comment, saying only, "Some people hire a lawyer so they have an excuse, someone to blame." Granville denied that he's ever had a social relationship with Thompson, but he speculated that his father and Thompson's father may have known each other and worked together.
At the time I spoke with Granville, Bisbee's current attorney, Ulises Ferragut, was preparing a humdinger of a post-conviction-relief petition, part of the appeal process in which the convicted can claim ineffective assistance of counsel, bring forward new evidence, and raise other legal issues. Bisbee's case had been full of holes from jump. She was convicted of molesting a 13-year-old boy named Jon Valles, whom she had come to know through his brother, Nik Valles, a student at Horizon High School, where Bisbee was the school nurse.
Bisbee, a single mom, used the Valles boys and a small circle of their friends to babysit her 4-year-old daughter, Taylor Lee. The prosecution alleged Bisbee, 33, formed a romantic attachment with Jon Valles and had kissed him twice before a touching incident. Supposedly, the touching had occurred at the home of Donovan Kemp, where the Valles boys were staying. In a bedroom filled with children, Bisbee had supposedly thrown a blanket over herself and Jon, placing his hand down her pants and her hand down his.
That Bisbee, who was close to completing a master's degree in elementary education from the University of Phoenix, would have molested Jon Valles in the presence of several witnesses is particularly difficult to swallow. But as soon as the Scottsdale Police Department started investigating the matter, the case got bungled.
There's no record, for instance, of Scottsdale Detective Christopher Kinder visiting the scene of the crime. And Kinder failed to secure key physical evidence during his investigation. He did not take into evidence the blanket beneath which the groping was said to have taken place. And though Bisbee was being held without bond, he did not order a routine physical examination of her. This was important because Jon Valles had told Kinder that Bisbee's pubic region was "smooth."
Kinder also made misstatements to the first grand jury in the case, testifying that Bisbee confessed to an illicit touch, though no such confession had occurred. On the basis of that testimony, Bisbee was held non-bondable for 66 days. And in interviewing Jon's brother, Nik, Kinder accused the boy of lying when Nik didn't tell him what he wanted to hear.
Nik's always-reluctant testimony was a key part of the case against Bisbee and was cited as such in prosecutor Paul Kittredge's closing statement. Nik essentially put his brother and Bisbee in the same room at the same time, and he insinuated the two had a romantic relationship. But since Bisbee's conviction, Nik has recanted his testimony in a sworn affidavit, which accuses his brother of committing perjury and his mother, Janette Sloan, of coaching the boys in their testimony. Her motive, according to Nik, was financial gain.
"I witnessed my mother, Janette Sloan, [telling] my brother, Jonathan Valles, to lie and stick with the story and, 'You'll be a rich kid,'" Nik stated in the 2007 affidavit, which was part of the new evidence presented in Bisbee's post-conviction-relief petition.
In fact, shortly after Bisbee was convicted in 2006, Sloan sued Bisbee and the family of Donovan Kemp. Ultimately, the lawsuit was settled for the ridiculously low sum of $5,000. Go-away pocket change, essentially. Ironically, during depositions for the case, Bisbee's civil attorney, Scott Ambrose, scored a plum witness, Sarah Babcock, Jon Valles' 16-year-old ex-girlfriend. Babcock testified under oath that Jon had confessed to her that his accusations against Bisbee were false.
"He said that him and the nurse didn't do anything," Babcock said under questioning by Ambrose. "That his mom was making him . . . say that for the money."
Babcock's deposition was part of Bisbee's post-conviction-relief appeal, as were statements by a boyfriend of Bisbee's who could have confirmed that she did not shave her pubic area. Also in the petition were statements from Bisbee's fellow female inmates, who knew that Bisbee's pubic area was not shaven shortly after her arrest.
The petition assailed Bisbee's trial attorney's deficiencies, including his failure to object at key points and cross-examine the state's witnesses properly. Indeed, reading Jon Valles' deposition from the civil case, which demonstrates the way in which Ambrose skillfully impeached the boy's credibility, you can't help but wonder whether things might have turned out differently with a better attorney during her criminal trial.
I should point out that Jon's civil testimony was not part of the petition. And all of Detective Kinder's mistakes were not examined. But the petition contained powerful statements from legal experts such as Alan Simpson, the lawyer who helped free Ray Krone, who was wrongly convicted of murder, from the state pen.
What Bisbee and her lawyers were seeking was a hearing to examine all the new evidence. But Granville summarily dismissed the petition without addressing Nik's recantation or even mentioning Sarah Babcock by name. Instead, Granville's four-page minute entry on the matter reads like that of an annoyed ex-prosecutor, peeved that the matter had come before him again.
Granville correctly observes the he said/she said nature of the case, but he is not willing to allow for the possibility that Jon may have lied at trial — despite the recantation of his brother, the testimony of Sarah Babcock, or the fact that another witness, Samantha Strandhagen, was never called to the stand by Bisbee's lawyer, though her testimony could have undermined that of crucial witnesses for the state.
"None of the defendant's petition points, attachments, or exhibits include a retraction by Jonathan that the sexual touching occurred," states Granville in his dismissal. "There was no evidence that any civil lawsuit was contemplated when Jonathan admitted the touching to Mr. Kemp, to his mother, and to the police, let alone when he testified at trial."
A retraction by the prosecution's star witness seems an almost impossibly high bar for Bisbee and her lawyers to overcome. And Granville's statement that there was "no evidence" of a possible lawsuit is simply untrue. Did Granville even bother to read Nik's recantation? Ultimately, Granville may not believe it, but he cannot say that it is not evidence that a lawsuit was contemplated. It is, clearly, evidence of just that, even if Granville chooses not to believe it.
Finally, Granville's statements regarding whether or not Bisbee's pubic area was shaven border on delusional.
"Defendant's proffer regarding her pubic hair status is also not material," writes Granville. "Her status before or days after is insignificant. Moreover, even a touch over her panties would constitute sexual contact under the law."
How can Granville state that this verifiable, physical fact is "not material"? If Bisbee was not shaven, as Jon Valles said, then Jon lied. And, certainly, evidence that Jon lied would be material.
Furthermore, Granville's assertion that "even a touch over her panties" would be "sexual contact" is weird and irrelevant. Bisbee's lawyers do not assert the contrary. And Granville's statement about something that has nothing to do with the matter at hand is a curious red herring for an otherwise esteemed judge to be throwing out.
Bisbee can appeal Granville's decision, but according to her mom, Camille Tilley, it will cost her family another $17,500 in legal fees, money they don't have. Already, she and her husband, Tom, have spent more than $400,000 defending Bisbee, giving up careers to move to Arizona to be near their daughter, who is doing time at Perryville Prison in Goodyear. They're trying to raise money from donors through their Web site, justice4courtney.com. They're under a deadline of 30 days to come up with the money so the appeal can be filed.
If an appeal is filed, it may take eight months to get an answer. One of the rosiest scenarios would be for the appeals court to send the case back to Granville and order him to hold a hearing on the petition. I think you can see the problem with Granville's already making up his mind and only a recantation from Jon Valles convincing him that he's erred.
"I believe I'm always obliged to come up with the right answer," Granville told me last year, when I asked him if it would be possible for him to admit he'd made a mistake in convicting Bisbee in 2006. "And if I don't think I can [come up with the right answer], recuse myself."
Based on the tenor of his dismissal of the Bisbee petition, and some of the ludicrous statements he makes therein, Granville should recuse himself if the case is sent back to him. Otherwise, for Granville, the Bisbee case promises to be an anvil weighing down his judicial career.
WHIPPING POST
On his recent, whirlwind visit to Phoenix, the Reverend Al Sharpton did what no one else has done in Arizona's civil rights struggle for the undocumented: bring together African Americans and Latinos on the issues of racial profiling, immigration reform, and the 287(g) program.
After meeting with those who've suffered profiling at the hands of Sheriff Joe Arpaio's deputies, Sharpton addressed a crowd of several hundred at Pilgrim Rest Baptist Church, near downtown Phoenix. The audience included an equal number of African-American and Hispanic religious and community leaders. The perceived schism between brown and black was very much on Sharpton's mind.
"Let me deal with the 800-pound gorilla in the room," Sharpton said in his address. "This whole . . . tension between the African-American and Latino communities, we must heal. And we must understand that we are not each other's problem. We are each other's solution.
"You cannot let them play the crab-in-the-barrel game on you," Sharpton said, "where you feel you've got to grab down the Latino to get up, or grab down the black to get up. The way for the crabs in the barrel to get up is to move the lid off the barrel, so there's enough room for all of us to get up."
(You can listen to Sharpton's entire speech at Pilgrim Rest here.)
True to the venue, Sharpton's address took on the tone of a revival meeting. He denounced the misuse of the 287(g) program, the indiscriminate use of race by police, the unequal application of laws, and the spread of fear in the Latino community. He mentioned death threats he had received because of his decision to come to Arizona.
"Let me make this clear," he told the crowd. "We are not here about Sheriff Joe, as much as we are here about Citizen Jose. I would not fly all the way across country to engage in the personality of Sheriff Joe."
Sharpton also promised a series of "freedom rides" for Maricopa County, calling on the memory of the Freedom Riders of the 1960s, who rode on interstate buses to test a U.S. Supreme Court order desegregating terminals for bus routes.
"What we need to do is start us some freedom rides in this county," Sharpton suggested. "Where we all start . . . filming [video] to turn over to the federal government. Sheriff's deputies are not sure who they're gonna stop. They might stop a car with me in it."
In fact, that's something such local groups as Puente and CopWatch do now. But to have outside organizations, like Sharpton's National Action Network, involved is an interesting prospect.
The speech ended with a standing ovation, and then Sharpton was off. First to a mini- press conference, where a reporter asked the reverend what he would say to those who observe that both Sharpton and the sheriff share a common love of publicity.
"I would say they are probably right," he said. "But we get publicity for different reasons. I try to put publicity on the issues of civil rights. And if my coming can help [ACORN CEO] Bertha Lewis and [Maricopa County Supervisor] Mary Rose Wilcox and others put light on the abuses of [the 287(g) program], then please call me a publicity hound."
Then Sharpton jumped in a black SUV and made his way to Wilcox's El Portal restaurant, where he did a live, three-hour radio show, seated beneath a portrait of César Chávez. An audience of about 100 packed El Portal to watch as Sharpton interviewed Wilcox, ACORN's Lewis, and Julio Mora, the 19-year-old American citizen who was unlawfully detained and zip-tied along with his legal-resident dad during the MCSO's raid on HMI Landscaping in February. (You may recall that Mora was a star witness during the House Judiciary Committee hearings on 287(g) in April.)
Wilcox told Sharpton about Arpaio's Guadalupe sweep last year, and Sharpton was surprised to hear how Arpaio had essentially shut down this square-mile town of Yaqui Indians and Mexican-Americans, almost all of whom are citizens. Guadalupe activist Andrew Sanchez was present, and he told Sharpton about the fear and intimidation the entire town felt as Arpaio's deputies ravaged it last April.
I took the opportunity to chat up Sharpton during the show's commercial breaks. I mentioned Arpaio's abuses of power, how he was investigating state Attorney General Terry Goddard as an intimidation tactic.
When I arrived at El Portal, there were a handful of nativist protesters on the other side of the street — mostly the usual suspects, such as Barb Heller, the United for a Sovereign America member who has boasted of her contacts with the MCSO, and whom I mentioned in my cover story "Ja, Joe!" (May 14).
With the nativists was at least one neo-Nazi, Harry Hughes, whom I also discussed in the story. The nativists didn't seem to mind his being on their side, and one of them even walked up and hugged him as I took pictures. So much for the nativists' attempting to act aloof toward white supremacists.
As soon as Sharpton's show was over, he went to the Wells Fargo Building, where Arpaio keeps two floors of pricey executive suites. The nativists and assorted armed white supremacists had already moved on to Wells Fargo. Activists on the other side of the immigration debate also soon assembled.
For a while, both the pro- and anti-immigrant sides were mixing and mingling peacefully. But eventually there were minor verbal confrontations, and the Phoenix police formed a cordon of 30 officers to keep the sides separated. Sharpton entered the building about 1:30 p.m. and exited at 2:10. He went straight to the elevator for the garage, surrounded by aides and bodyguards, without a word to the press or the demonstrators.
Arpaio and Sharpton were to be part of CNN's Lou Dobbs Show in a segment aired live from a Phoenix studio, and I made it home in time to see their verbal cage fight. Sharpton easily out-debated Arpaio, who seemed tired and cranky.
Sharpton was so reasonable by comparison to Arpaio, whose favorite word for the evening was "garbage," that even nativist Dobbs seemed to lean toward Sharpton. The reverend spoke of the "hundreds of people coming forth" with stories of racial profiling and civil rights abuses. He said he asked the sheriff for arrest data that could prove or disprove allegations of racial profiling. But the MCSO doesn't keep such data, Arpaio told him. (Interestingly, Arizona's Department of Public Safety has kept such information on the stops it makes, thanks to a successful ACLU lawsuit.)
Arpaio scoffed that Sharpton was just listening to "a small group of people," the "one or two [who] testified in Congress." The sheriff insisted that the Justice Department probe of his activities was based on "politics" and mentioned that the MCSO had asked the DOJ to investigate itself.
Sharpton called Arpaio's demand for an investigation of the investigation "a new curve" and spoke generally about Arpaio's raid of "an indigenous community of Indians," meaning Guadalupe.
"These people are either having a mass hallucination in this county," said Sharpton. "Or we have a problem that we need to get beyond the name-calling [about] and try to protect people's civil rights."
"We haven't invaded any Indian reservations," harrumphed Arpaio.
"I said a community," parried Sharpton.
"No, that's garbage, and you know it, Al," growled the sheriff. "We discussed that. We go into white neighborhoods. I have been accused of everything. It is all garbage. And I'm going to tell you something: It's all going to come out in the wash. Believe me. Stay tuned."
Apparently, Arpaio's unaware that half of the population of Guadalupe is Yaqui Indian. Indeed, the original 40 acres of Guadalupe were given to the Yaqui Indians by President Woodrow Wilson. Too bad nobody stated the obvious to Joe; maybe he'd have laid off the invasion last year looking for illegal aliens.
The Dobbs show wrapped up a day that certainly didn't make Arpaio look good nationally; Sharpton made Arpaio appear pathetic to anybody with half a brain. I know Sharpton has his detractors (most of them angry whites who see him as an "outside agitator," as Southerners called civil rights advocates back in the day), but if the reverend were around 24-7 for a couple of months, I think even a majority of locals would understand that Arpaio's racially profiling and must, at least, be deprived of his 287(g) privileges.
