Courts

Man Accused of Attempted Rape in Kiwanis Park Released; Tempe Police 'Disappointed'

Kevin Caballero, 30, allegedly tried to rape a woman in Kiwanis Park on March 20. He's been released pending trial.
Kevin Caballero, 30, allegedly tried to rape a woman in Kiwanis Park on March 20. He's been released pending trial. City of Tempe
The allegations are startling: Late on a Sunday morning, in a Tempe park filled with people, a man attacked and apparently tried to rape a 71-year-old woman before Good Samaritans rushed to rescue her.

The 30-year-old suspect, Kevin Caballero, later confessed to police that he wanted to put his "penis" in her "vagina" and expressed frustration at being interrupted, saying that he should have committed the act "faster."

He was initially held in jail on a $500,000 bond. But two weeks ago, Phoenix New Times has learned, he was given a pre-trial services release with an ankle monitor to his sister in Tucson.

Caballero is a homeless man who has been treated for years for mental illness and is ostensibly under state care. The Maricopa County Attorney's Office demanded only that Caballero accept an ankle monitor, and didn't object to the release.

A Tempe police spokesperson said the department was aware of the release order and that it had caused some "shock" among the ranks.

"It's fair to say it's surprising to us that he was released," said Tempe Sergeant Steven Carbajal. "It was a very brazen incident, with many people around. It basically permanently changed the life of our victim. I don't know how an ankle bracelet is going to prevent another incident or another attack."

"We are disappointed with the justice system for releasing Caballero." — Tempe Police Special Victims Unit Sergeant John Gilginan.

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In an unusual move, the department released a statement from its special victims unit sergeant, John Gilginan: "We are disappointed with the justice system for releasing Caballero."

Police declined to comment on the process that led to the release. But the move comports with changes made in 2017 to the state's legal system designed to reduce unfair burdens on low-income people. The changes ordered judges to set bail at "the lowest amount necessary to protect other persons or the community from risks posed by the person or to secure the person’s appearance."

For certain violent crimes, like sexual assault, bail is not an option because the defendant faces mandatory prison time. Caballero is accused of kidnapping and attempted sexual assault, and is eligible for probation on each count.

Yet officials in Maricopa County's Pre Trial Services department found that "based on the allegations, defendant is a danger to the community."

The case details depict Caballero as a man with uncontrollable sexual urges that society needs protection from. But now that he's back on his psychiatric medications and getting treatment again, the idea is that he'll meet his court obligations and not attack anyone while wearing his ankle monitor.

Sunday Morning Terror

The attack survivor had been out for her daily walk in Kiwanis Park near Mill Avenue and All America Way at about 11:30 a.m. on Sunday, March 20, when she felt a strong shove from behind that caused her to fall to the ground.

Caballero, who she had never met before, climbed on top of her, telling her that "she wanted sex" as she swung her arms at him and screamed for help, court records show. "Liar!" she yelled. He yanked her pants down and she pulled them back up. Park visitors sprung into action at her cries.

Some called 911: "I have a woman here who's getting raped by a man at the park," one caller told police.

Murry Rogers of Phoenix and Justin Herron, a 305-pound New England Patriots offensive lineman, were the first to reach the woman. Caballero gave up as they and others approached.

Reached Monday, Rogers humbly downplayed his involvement.

"Justin was the biggest and the loudest, for sure," he said. "You definitely feel a lot tougher when you have him next to you. If anything, I was there to step in and help if needed."

As the men separated the traumatized woman from Caballero and made him sit on the ground to wait for police, the suspect kept trying to talk to her, Rogers said, telling her "she wanted it, it was her idea."

"He wasn't apologetic," Rogers said. "He was very calm. He was singularly focused on her... Justin took the victim away. I just stood behind him. I put my hand on his shoulder and said, 'you need to sit right here.'"

Rogers found news of Caballero's pre-trial release "disturbing and upsetting."

"I'm a little bit at a loss for words," he said. "It was almost like he couldn't control himself... Hopefully, there's not another victim."

'Least Onerous Conditions'

Caballero was ordered held in jail on a $500,000 bond. The attack drew national headlines in part because of Herron's involvement. In Tempe, where park security has concerned residents for the last few years, the mayor and police chief spoke about the crime, and Herron and Rogers were honored for their intervention. A grand jury soon indicted Caballero for kidnapping and attempted sexual assault. He was found indigent and eligible for a court-appointed attorney.

He seems to have been fortunate to get county public defender Kathryn Krejci, who has filed a flurry of motions in the case and is helping Caballero obtain the mental health care he needs in addition to a legal defense. On May 11, she filed a motion to modify Caballero's release conditions, noting that new facts had come to light. For one thing, she revealed that Caballero had mistakenly been booked on a charge of sexual assault when assigned the $500,000 bond, and he didn't have the resources to pay that much. Besides, while Caballero has several misdemeanors on his record including domestic violence and trespassing, Krejci pointed out that he's never been convicted of a felony.

When first booked, he apparently wasn't given the chance to prove that he suffers from mental illness, qualifies for state help, and has family support in Arizona, Krejci wrote in her motion. Krejci has talked with his mother and sister since the arrest and learned that his sister, who lives in Tucson with her fiance, "has indicated that Kevin can reside with her ... and she and her mother would be able to provide transportation for Kevin to attend future court hearings."

His sister, whose name is being withheld by New Times, declined comment. Krejci didn't return a message.

Krejci wrote in the motion that she also contacted Mercy Care's court coordinator, who reported that Caballero has received general mental health services through the state's Medicaid provider, Arizona Health Care Cost Containment System (AHCCCS), since 2018.

"Unfortunately, those services are closed out when someone is incarcerated, even pretrial," Krejci wrote, adding that she has therefore also communicated with Arizona Complete Health in Tucson, which will help Caballero with his care.

The law requires the court to impose "the least onerous conditions of release," she noted. "The current release plan of Kevin living in the home of his sister will assure his future appearance [and] protect the victim and community. At the time of his arrest, consistent with police observation he was mentally unstable. Since he has been in custody Kevin has resumed taking medication and undersigned counsel will continue to [help ensure] services upon Kevin's release into the community."

Jennifer Liewer, a spokesperson for County Attorney Allister Adel, confirmed that the prosecutor's office didn't object to the release. The office only insisted that Caballero be fitted with a GPS monitor, she said. The county attorney's office had no further comment.

Commissioner Roger Hartsell approved the release on May 18. But the county probation department doesn't usually monitor defendants outside of county borders, so it took another three days for arrangements to be made for a contractor to oversee the monitoring in Pima County. In a statement, the Maricopa County Superior Court said that court rules prevent any official from commenting on a pending case.

Caballero's release order states that he can't leave his sister's home except for medical or court appointments unless he gets advance approval. His next court hearing is set for June 17. A tentative trial date of August 3 is likely to be rescheduled.

'He's a Victim, Too"

The woman who was attacked has been made aware of Caballero's release, Carbajal said. She has general concerns for her safety "to a level that it's kind of altered her daily activities," he said.

One of the many troubling elements of the case is that Caballero, after his arrest, told police that he'd done the same thing to other women in Tempe. But so far, Carbajal said, there's been no evidence his claim is true.

Stories about people committing crimes while on GPS-monitored home arrest are not uncommon. In May, for instance, a New Mexico man was arrested for sexually assaulting a teen while wearing a monitor while awaiting trial in another rape case. Clearly, even with medication and an ankle monitor, no one can predict with certainty whether Caballero will try to reenact his crime and finish "faster" the next time.

click to enlarge Murry Rogers and Justin Herron received commendations for their actions. - SCREENSHOT/ABC15
Murry Rogers and Justin Herron received commendations for their actions.
Screenshot/ABC15
A forensic psychologist reached by New Times for insight on the case said he would speak only if kept anonymous, and even still, would not make assurances that it would be "safe" to be around someone like Caballero as long as he was on his meds. For an article about a situation this heinous, he claimed, there was "no way any expert can say he has the right to be released."

That being said, the doctor said that in addition to getting on his proper medications, Caballero had several other positive things going for him. A person's history is "the most important diagnostic tool" to predict violence, he said, making Caballero's lack of felonies an important factor to consider. With the kidnapping and attempted sexual assault being his first felonies, if he's convicted he'll be eligible for probation, so when it comes to his release, "Why should he be discriminated against just because he's mentally ill?"

The doctor said he believes the case represents "a failure of the mental health system," and, more specifically, of the clinic that was supposed to monitor that he's taking his psychiatric meds and not abusing other substances.

Rogers expressed some of the same concern. While it's true that Caballero's attack was brazen and that an ankle monitor wouldn't stop a similar assault, he said, "as a human" he doesn't want to see someone like Caballero simply locked up and forgotten.

"That doesn't do anything, either," he said. "He needs to be in a place where he [can] succeed, not just under the system's care."

(Correction: Although Caballero did not have to post a bond, an ankle monitor release is called a pre-trial release, not a release "on their own recognizance.")
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Ray Stern has worked as a newspaper reporter in Arizona for more than two decades. He's won numerous awards for his reporting, including the Arizona Press Club's Don Bolles Award for Investigative Journalism.
Contact: Ray Stern