Scottsdale Mama

Archive for April, 2011

Maricopa County has recently had to deal with a disgusting crime committed by a Board of Supervisor’s wife that, from what the citizens believed, was unknown to the husband. However, it was recently discovered that the husband did in fact know something was going on prior to her actually being arrested and the information going public. So the question is now, “what happens to him?”

Let me back up and give you some history. Susan Brock, the wife of Maricopa County Board of Supervisor Fulton Brock, pled guilty to 3 counts of attempted sexual conduct with a minor and was sentenced to 13 years in prison (2 years short of the maximum sentence under the plea agreement). The facts that came out was that she had had a “relationship” with a minor boy for somewhere between 4-6 years. The relationship included sexual contact on more than one occasion between the two, with her giving the boy money and presents during that same time frame. There were also facts that she helped the minor boy and his minor girlfriend have sex by allowing it to occur in her home. There are also allegations that Susan Brock’s daughter (when she was over 18) was also sexually involved with the minor AT THE SAME TIME!

After she was arrested and the facts were disclosed to the public, Fulton Brock filed for divorce and claimed to not know anything about his wife’s actions. It was recently discovered that Susan and Fulton had a meeting with leaders at their LDS church to discuss the inappropriate relationship at least 2 weeks before her arrest. In other words, her husband Fulton, who originally said he had no idea about the crime until she was arrested, knew of something at least 2 weeks prior to the arrest.

So, people are asking 1) how did he NOT know? And 2) can’t he be charged with a crime for failing to disclose the information? I don’t have an answer to the first question but can shed some light on the answer to the second.

First let me say that we don’t know exactly what Fulton knew and when. All we know so far is what the LDS church has disclosed. However, there is no doubt in my mind more facts will come out.

So far I have not heard anything that would make me believe Fulton Brock could be charged with a crime. There are no facts that he helped his wife commit the crime or helped her cover it up. You are probably wondering whether he can be charged with not telling anyone before she was arrested, the answer, from the facts so far, is NO.

Arizona Revised Statute §13-3620 Duty to report abuse, physical injury, neglect etc. sets out who has a duty in Arizona to report abuse of a minor and the husband of a defendant is NOT on that list. Specifically, 13-3620(A) states:

“A. Any person who reasonably believes that a minor is or has been the victim of physical injury, abuse, child abuse, a reportable offense or neglect that appears to have been inflicted on the minor by other than accidental means…shall immediately report or cause reports to be made of this information to a peace officer or to child protective services in the department of economic security, except if the report concerns a person who does not have care, custody or control of the minor, the report shall be made to a peace officer only.”

This section then defines what a “person” is for purposes of paragraph A:

“For the purposes of this subsection, “person” means:

1. Any physician, physician’s assistant, optometrist, dentist, osteopath, chiropractor, podiatrist, behavioral health professional, nurse, psychologist, counselor or social worker who develops the reasonable belief in the course of treating a patient.

2. Any peace officer, member of the clergy, priest or christian science practitioner.

3. The parent, stepparent or guardian of the minor.

4. School personnel or domestic violence victim advocate who develop the reasonable belief in the course of their employment.

5. Any other person who has responsibility for the care or treatment of the minor.”

As can be read above, the husband of the defendant is not a “mandatory reporter.” As such, with the facts that have been disclosed thus far, Fulton Brock was not under a legal duty to disclose the criminal actions of his wife towards the minor.

I understand this sounds absurd and just wrong, and on a moral level it is. However, under Arizona law Fulton Brock has not done anything wrong. (Typical lawyer footnote: this analysis could change if and when new facts come to light.)

The church on the other hand may have done something wrong under Arizona law. The same statute, A.R.S. §13-3620 also states: “A member of the clergy… who has received a confidential communication or a confession in that person’s role as a member of the clergy… in the course of the discipline enjoined by the church to which the member of the clergy…belongs may withhold reporting of the communication or confession if the member of the clergy…determines that it is reasonable and necessary within the concepts of the religion…”

In this case, the LDS church members that were told of Susan Brock’s actions had the discretion to withhold what was told them (with no duty to report) if there was a confidential communication or a confession. The question is, was what was told to the church confidential or a confession? Was the fact that Fulton Brock was part of the “communication” deem it not confidential? Lastly, was it “reasonable and necessary within the concepts of the religion” to abstain from reporting the abuse? These are questions that will be answered as we receive more facts. My instinct is that the communication was not “confidential” if Fulton Brock was present and thus the church had a duty to report. Also, I don’t see how failing to report could be “reasonable and necessary within the concepts of the religion.”

Unfortunately there are still a lot of questions about the entire situation that revolve around Fulton Brock, his daughter and the LDS church. This case is nowhere close to being closed.

Today the Judge heard oral argument on the Defense’s Motion for Mistrial. I should say that the Judge heard mostly the Defense as it argued for over an hour and the State argued for approximately 10 minutes. Is this telling? Maybe, maybe not.

The Defense filed its Motion last week and the State had until last night to file its Response, which it did. After reviewing both the pleadings and listening to the oral argument live on CNN.com/live; it was clear that the parties were simply arguing what was already in the pleadings. In other words, the oral argument did not add anything to what had already been filed. However, it did give the parties the chance to answer any questions, had the Judge had any, which he did not. Plus, it allows the parties to “make a record” in the event either wants to appeal.

(Basically the Defense has argued that the State had an email/report in its possession from an environmental expert that it failed to disclose to the Defense even after repeated requests to do so. The Defense argued this email/report clearly showed exculpatory evidence in that it explained the deaths could have been caused by the construction of the sweat lodge and the resulting air quality – all of which was out of the control of James Ray. The State argued that it did inadvertently fail to disclose the email but that the information contained therein was not exculpatory and in fact implicated James Ray further.)

I think the Judge already had his mind made up about whether there was a Brady violation when he entered the courtroom this morning, especially in light of the fact he didn’t ask any questions and there was nothing new presented during oral argument. At the end of argument he simply stated he did find there was a Brady violation and the only thing left to determine was the remedy. He then stated he would issue his ruling this afternoon. So, you can only imagine that the parties are waiting on pins and needles.

This Judge seems to really take his time making decisions and I mean that in a good way. After being in the courtroom all of last week I have seen that he patiently listens to both sides and asks very good questions. It is clear to me that he takes his job seriously and really thinks before he answers and gives a ruling. If only all judges were as thorough. Now, I will say that he has made a ruling or two that is confusing to me and the Defense, most notably in regards to prior acts, but, that doesn’t change my overall opinion of him.

With this particular Motion there are several options the Judge has (from harshest to lenient):

1. Deny the Motion for Mistrial and allow the trial to continue (undoubtedly this would cause an appeal unless James
Ray is acquitted);

2. Deny the Motion for Mistrial, find there was a Brady violation and allow Defense to recall witnesses, add to their opening argument, issue an instruction to the jury and/or postpone trial to allow Defense more time to investigate;

3. Grant the Motion and declare a mistrial without any type of prejudice thus allowing the State to bring the case again;

4. Grant the Motion and declare a mistrial with prejudice in finding it was an intentional non-disclosure by the State which would mean the charges could not be brought again.

Considering the Judge found there was a Brady violation, which means the State failed to properly and timely disclose exculpatory information, the first option is gone. There must be a punishment and a remedy. Understand that the punishment/remedy is within the Judge’s discretion. He will consider the timing, the length of the non disclosure, the repeated requests by the Defense for the information, the value of the information, the fact that trial has been going on for over 8 weeks, the relevant case law and the rules. All eyes are on him now as we anxiously await his decision…

I was reading an article in Sports Illustrated by George Dohrmann regarding the Bonds’ perjury trial and his question “Is Barry Bonds a victim?” made me stop and think.  At first I said of course not, how could someone that successful with that much money and fame possibly be a “victim?”  After all, if he did use steroids or performance enhancing drugs (“PED”) wasn’t that by his own choice? No one forced him to do it.

This line of thought then brought me to the conclusion that I made a long time ago; the American taxpayers are the real victims in this entire episode.  Being a former prosecutor, current defense attorney and legal analyst, I get the purpose of law enforcement and the role of the prosecutor.  I, unlike some, believe that there needs to be some common sense and economic sense in the arsenal of a prosecutor.  Throwing these two things to the side can cause more damage than good.  

Take this entire investigation and trial against Bonds.  The parent investigation started back before Bonds testified to the grand jury in 2003 with BALCO.  Yes, that was 8 years ago.  According to the article, one estimate has the cost to taxpayers at $6M.  Are you kidding me?  Could someone, anyone, give me a logical and common sense explanation as to why this much money has been WASTED on an investigation into actions that no one but true believers and naive fans have been hurt by.  (As a side note, any damage has been purely emotional, no one has been physically hurt and I would argue that if you have been hurt emotionally by this then you have bigger problems than whether Bonds used PEDs.)  I understand that importance needs to be put on telling the truth and respecting the grand jury, but that is not enough to justify this colossal waste of resources.

After 8 years of “investigating” we are now in the phase of criminal trials.  No, not criminal trials into the use of steroids, but criminal trials as to lying about it, allegedly.  So, the prosecutors could not prove Bonds or the others used steroids so now they are trying to prove he lied about not knowingly using PEDs to the grand jury.  Question – don’t they have to prove that he DID use PEDs in order to prove he lied about it? Answer – yes.  Question – can someone, anyone, tell me why the American taxpayer should care and why over $6M has been wasted on this?  Not to get high and mighty but do the powers that be really think that the homeless and starving children out on our streets really care about whether a professional athlete chose to destroy his body?  NO.

I always look at the bigger picture and try to rationalize things.  I just cannot do so in this case.  I don’t see the use of this waste of money as being rational, economical or smart.  I would rather the money go to help those children.

So, is Barry Bonds’ a victim? Answer – Yes, just like the rest of the American taxpayers.