The XX Factor

Arizona Prosecutor Promises Not to Persecute Innocent Parents Like His Predecessor Did

Changing a diaper is a risky proposition in Arizona.

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Last week, the Arizona Supreme Court handed down an alarming 3-2 decision interpreting a state statute to criminalize the intentional touching of a child’s genitals—even for non-sexual purposes, like bathing infants or changing their diaper. Slate, along with myriad other outlets, covered the ruling by pointing out what the chief justice explained in dissent: “Parents and other caregivers” in the state are now considered to be “child molesters or sex abusers under Arizona law.”

The decision provoked a public outcry, largely because it gave prosecutors immense discretion to dangle charges of child abuse before any parent and presented grave constitutional concerns. But on Tuesday, Maricopa County Attorney Bill Montgomery decided to clear the record. Or, rather, he decided to have his communications director, Amanda Jacinto, email the journalists who wrote about the case, insisting that their coverage was inaccurate and needed to be altered. “The story was misleading in its presentation to readers,” Jacinto informed to Slate’s corrections department. “I am writing to ask … that a correction be made to the story.”

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Jacinto’s email included a press release assuring Arizonians that prosecutors would never charge parents or caregivers for tending to their child’s hygienic needs. “[L]anguage used in the Dissenting Opinion,” the press release declares, “has led to public misunderstanding on how these cases are charged. The Court’s decision has been misread to conclude that because sexual motivation is not an element of the offense, parents can be criminally charged while properly caring for their child.” Well, yes, they indisputably could. But Montgomery’s office promises that they won’t.

“Only when the touching is of a sexual nature do prosecutors even consider filing charges,” the press release asserts. Then it adds a direct quote from prosecutor Montgomery himself: “It is incredibly insulting to believe any prosecutor reviewing a case for charging would not be able to tell the difference between an adult taking proper care of a child and the molestation of a child victim.”

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This press releasing is especially fascinating in the light of the fact that one of Montgomery’s own predecessors arrested, charged, and successfully convicted an almost certainly innocent woman of child molestation, as this stunning story from the Phoenix New Times documents. In 2004, prosecutors charged 33-year-old mother and school nurse Courtney Bisbee with molesting Jonathan Valles, a 13-year-old child—in a room full of witnesses, including her daughter’s babysitter. The facts of the case were dubious from the start; the prosecution was built on conflicting testimony and a complete lack of actual evidence. Yet prosecutors zealously pursued the case, asserting implausibly that Bisbee had engaged in a mutual grope session with Valles.

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No trustworthy witnesses could credibly corroborate this theory of the case. The lone investigator on the case violated established protocol when interviewing child witnesses and allegedly lied in court. Still, then-County Attorney Andrew Thomas secured an 11-year-prison sentence for Bisbee, who racked up $400,000 in legal fees and lost custody of her daughter. (Bisbee’s attorney, though very expensive, was also utterly incompetent.)

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A year later, Valles’ older brother Nik—the trial’s star witness—came forward to recant his testimony. In a sworn affidavit, the brother explained that his mother had concocted a scheme to frame Bisbee for molestation, then sue her for damages. Other witnesses ultimately corroborated Nik’s affidavit, including Jonathan’s ex-girlfriend, who stated in a deposition that Jonathan had confessed that he and Bisbee “did not do anything” and that “his mom was making … him say that for the money.” And Bisbee’s post-conviction attorney discovered that prosecutors had withheld exculpatory evidence from the defense, a violation of Bisbee’s constitutional rights.

But Thomas—who was still serving as county attorney when this evidence emerged, and who bragged of his ability to secure extraordinarily harsh sentences—did nothing. He refused to even consider the new evidence. In 2010, Thomas, a close ally of nativist Sheriff Joe Arpaio, resigned to run unsuccessfully for attorney general. Two years later he was disbarred for colluding with Arpaio in an attempt to imprison, on false charges, a county judge they disliked. “This is the story of the public trust dishonored, desecrated and defiled,” a disciplinary panel of the Arizona Supreme Court proclaimed, writing that Thomas had “profound arrogance” that pushed him toward “ethical ruin.” Thomas, the panel concluded, had “outrageously exploited power, flagrantly fostered fear, and disgracefully misused the law.” Two prosecutors who aided his failed coup were also disbarred.

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After a former county attorney briefly stepped in as Thomas’ interim replacement, Montgomery was elected to the position that he still holds today. He has used the office to wage state-level culture wars, fighting a medical marijuana law passed by voters and defending abortion restrictions already ruled unconstitutional. Meanwhile, Bisbee remains in prison, where she was assaulted, resulting in permanent scarring and nerve damage. Montgomery continues to fight vigorously against her exoneration efforts, using his prosecutorial power to prevent Bisbee from receiving a new evidentiary hearing.

If Montgomery wants to prove that his office isn’t interested in putting innocent parents behind bars, ceasing his persecution of Bisbee would be a good place to start. 

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