Jul 16, 2014 1:01 AM by Kristi Tedesco & Edgar Ybarra
TUCSON - Kristi's Kids has uncovered a troubling case involving a little boy and his former neighbor. Allegations of child molestation and a state law, some say, set a dangerous person free.
Using the so-called "Rule 11" process, the adult neighbor was found incompetent to stand trial even though, by all accounts, he confessed to molesting the little boy. The case was dismissed and there was no punishment. No protections were put in place for other kids, so Kristi's Kids asked the question: Did prosecutors do everything they could?
The adult neighbor is accused of abusing the little boy over the course of two years. Kristi's Kids is calling the alleged victim "Steve." We'll refer to "Steve's" mother as "Paula."
According to "Paula," the adult neighbor befriended "Steve" many years ago. The two would shoot hoops together, ride bikes and go to UA basketball games.
"Paula" said, "My son trusted this person."
When "Steve" was 10-years-old, "Paula" says the neighbor, "... had sex with him. He penetrated his... **** and he made him give him **** ***."
Kristi's Kids uncovered documents that laid out the alleged crime. "Steve" told police it happened in the neighbor's backyard shed on multiple occasions. It went on until "Steve" was 12. When "Steve" told a relative, police got involved.
According to the Tucson Police document, the neighbor confessed to all of it. He told police, he "...thinks it's wrong what he did to (Steve)..." but "... does not understand why it's wrong..." He also said, he "...knows it's against the law..." but "...he did it because he was curious."
The grown adult was booked into jail that night and indicted on two counts of child molestation and five counts of sexual conduct with a minor.
The matter went to court and the Pima County public defender asked for a "competency evaluation." According to that request, the accused has been diagnosed with "mental retardation." That means the court found the defendant is "...unable to understand the nature of the proceedings..." and "...assist in his defense..." He's "...therefore incompetent."
That's when the charges were dismissed without prejudice. The neighbor walked and didn't have to register as a sex offender. He also didn't have to go to a mental health facility. He was never prosecuted. They had reached an apparent "dead end."
That's when "Paula" called Kristi's Kids saying, "It makes me feel that I did not protect my child."
Alan Goodwin was the Pima County prosecutor assigned to the case. He tells Kristi's Kids, the law clearly states that a person found incompetent to stand trial cannot be prosecuted. He says, lawmakers have the power to change that and, he says, "Our office has let it be known that we're concerned."
That said, Kristi's Kids learned, through our independent legal experts, that there is an option for these cases, a separate law, where the accused can still be tried, to see if they're a "sexually violent person."
ARS 36-3705 says a person can be detained, in a licensed facility, if they're found "incompetent to stand trial" and have "a mental disorder, making them likely to engage in acts of sexual violence."
We tried asking Goodwin about this but got his colleague, Deputy County Attorney Kathleen Mayer to explain instead.
Mayer tells Kristi's Kids, ARS 36-3705 couldn't be pursued because prosecutors "don't have any information (to) prove beyond a reasonable doubt that (the neighbor) would commit future acts of sexual violence."
Mayer also says, that law can only be pursued if the person is still in custody. At the time, the neighbor was not. Pima County prosecutors have tried, and failed, to get the law broadened.
According to the Pima County Attorney's office, there have been twelve of these cases in the last five years. The cases included murder and sexual assault.
To contact your state legislators about this, click here.
To learn more about "Rule 11," click here.
To learn more about ARS 36-3705, click here.