Yavapai County Attorney

255 East Gurley Street Prescott, AZ 86301 (928) 771-3344 (Criminal) (928) 771-3338 (Civil) Facsimile (928) 771-3110
SHEILA POLK Yavapai County Attorney

May 29, 2012

Bill Montgomery Maricopa County Attorney 301 W. Jefferson Street, Suite 800 Phoenix, Arizona 85003

Re:

Mark Wesley Mitchell Phoenix PD D.R. #2012-00376059

Dear Mr. Montgomery: Several experienced prosecutors in this office and I have reviewed the facts outlined in the above-referenced investigative reports and researched the criminal statutes applicable in and around 1983, the approximate year of the reported events. After careful review and consideration, this office declines to file any criminal charges. As explained below, the facts outlined in the investigative reports do not meet our charging standard of reasonable belief of probable conviction of the offenses charged. Furthermore, the laws applicable in and around 1983, the date of the alleged events, do not support the filing of criminal charges. Time of the Events / Age of the Parties Based on the birth dates of the parties, suspect Mark Mitchell (hereinafter Mitchell) is approximately three years and seven months older than the victim. The facts outlined in the investigative reports do not provide a clear time frame for when the alleged events took place. While the victim describes the acts with some specificity, she is not able to relate when these events took place other than a general statement that they occurred when she was approximately 10 years old and that they occurred sometime during 1983. Mitchell would have been 13 or 14 years of age at the time of the alleged offenses. In his statements, Mitchell indicates that whatever occurred might have occurred even earlier.

Bill Montgomery May 29, 2012 Page Two

No Reasonable Belief of Probable Conviction In examining the likelihood of probable conviction on the merits at trial, the States obligation is to examine the strength of the admissible evidence. In this matter, the admissible evidence would consist solely of statements by individuals. There is no physical evidence nor is there DNA. In weighing the strength of the admissible evidence the statements - it is important to examine whether the statements are consistent, whether they are corroborated by other witnesses, and whether the statements are impeachable. The victim states that she was fondled by Mitchell on at least six occasions in her home over a three to four month period when Mitchell was babysitting her and her younger brother. She states that Mitchell told her he would tell her mother if she did not let him do this, and that she took this to mean she would get her ass beat. She states that several acts occurred while they were watching T.V., another act occurred in her bedroom, and that an act of sexual conduct occurred in the shed at Mitchells home where he kept his drum set. The victim states the last incident occurred in her bedroom when Mitchell was babysitting. The victim states he brought her to her bedroom, made her lie on the floor and take her undershorts off. She states he fondled her crotch with his fingers and called her younger brother into the room and wanted him to fondle her as well. The victim states her younger brother said no. The victim states that she told her mother the next day that Mitchell could not babysit her anymore because he was touching her and had tried to make her younger brother touch her. The victim stated this has been eating at her for years. While the victim describes the acts with specificity, there is little corroboration for her statements and several of her statements are contradicted by others. Notably, statements by her mother and brother do not corroborate the victims account. The victims mother was interviewed and states that Mitchell babysat on one occasion only. The victims mother remembers a conversation with her daughter but does not remember what her daughter told her. The mother recalls that she spoke to the Mitchell family, but cannot remember what was discussed. She does remember it was discussed that Mitchell could never come to her home again. At the time of the events or at any time since, the victims mother did not call the police or report the incidents to any authorities. While the investigation in this matter did not include an interview of the parents of Mitchell, Mitchells attorney has provided this office with an affidavit from Mitchells father wherein he states that Mitchells drum set was kept in his bedroom, not the shed. Mitchells father further states he has no memory of anyone ever saying to him that his son Mark had engaged in inappropriate conduct of a sexual nature, that such a conversation never happened, and that he has no recollection of the neighbor ever having such a conversation with him. The victims younger brother was also interviewed by a detective. He recalls that Mitchell was one of several babysitters they had and that Mitchell babysat a few times, but does not remember for sure. He states he does not recall anything happening to his sister by Mitchell

Bill Montgomery May 29, 2012 Page Three

nor the incident described by the victim. He does have a vague recollection of getting ready for bed, running around with no clothes on, and trying to play the game but provides no further detail. Two recorded confrontations by the victim with Mitchell were accomplished. In each instance, the suspect was confronted with statements recounting sexual acts between the two. Mitchells statements on these recorded conversations acknowledge some involvement and are very general, i.e., they were both young, they were exploring, they were experimenting, that he had never had sex before that age and did not really know what he was doing, they were friends and played together, that he never meant to hurt her and he was sorry she felt the way she did. Subsequently and through his attorney, Mitchell has denied that he ever sexually or inappropriately touched the victim in any way. In addition to the above inconsistencies, the motive of the victim in reporting would be challenged. The victim states she was prompted to report to authorities the events occurring in 1983 during an unrelated investigation involving sexual abuse of the victims minor child. The investigation of the abuse of the minor child began in May of 2011; although she was involved with the authorities in the investigation of her minor child from almost the beginning, the victim did not make her report of the abuse from 1983 until February of 2012, almost ten months after the unrelated investigation began, prompting this investigation. While there are explanations for the delay in reporting, the victim states the abuse by Mr. Mitchell had been eating at her for years. Legal Barriers to Prosecution In addition to the factual issues outlined above, there are significant legal issues that we have considered. The charging decision in this case is not whether a 39 year-old man should be charged with sexual offenses with a 10 year-old victim. The determination is whether to charge an adult, thirty years later, for sexual acts committed when he was a 13 or 14 year-old juvenile with a ten year-old victim. In making this determination, the State must apply the criminal statutes in effect in and around 1983; those statutes raise significant legal obstacles to prosecution. Specifically, the State notes the following: In 1983, the criminal code contained the following provision relating to the mens rea of juvenile offenders: 13-501 Immaturity A person less than fourteen years old at the time of the conduct charged is not criminally responsible in the absence of clear proof that at the time of committing the conduct charged the person knew it was wrong.

Bill Montgomery May 29, 2012 Page Four

Based on the victims statements, the conduct occurred in or around 1983 when Mitchell was 13 or 14 years of age. In addition to proving beyond a reasonable doubt at trial that Mitchell committed the acts, the State would also have to prove that Mitchell knew at the time of committing the conduct . . . it was wrong. See State v. Taylor, 109 Ariz. 481, 484, 512 P.2d 590, 593 (1973) (In the prosecution of a juvenile, the burden is on the state to show that he is capable of appreciating the nature of his act [ ]. It is therefore plain that the statute has a reasonable basis in that it is designed for the protection of the youthful immature.).1 Meeting this burden of proof, thirty years after the fact, is simply not possible. Prior to 1996, the juvenile court had exclusive original jurisdiction over juvenile offenders with the discretion to transfer a juvenile to superior court for prosecution as an adult only after a transfer hearing and decision. In 1983, the transfer of a juvenile to superior court was governed by Rules 12 through 14 of the Juvenile Court Rules. No age limitations were specifically set forth in the rules, but in every case a transfer hearing was mandatory wherein the juvenile court had to first find probable cause that the juvenile committed the charged offense. If probable cause was found, the court was also required to find reasonable grounds to believe that: (1) The child is not amenable to treatment or rehabilitation as a delinquent child through available facilities; and (2) The child is not committable to an institution for mentally deficient, mentally defective or mentally ill persons; and (3) The safety or interest of the public requires that the child be transferred for criminal prosecution. Rule 14(b), Ariz. R. Juv. Ct; State v. Yard, 109 Ariz. 198, 200-01, 507 P.2d 123, 125-26 (1973). The State concludes that in 1983, under the facts set forth in the investigative reports in this matter, it is unlikely that the 13 or 14 year-old offender would have been considered for transfer to adult court or that any juvenile court would have been able to make the necessary findings to support a transfer. Consequently, had the accused been adjudicated delinquent, he would have been eligible for probation and remained under the jurisdiction of the juvenile court only until his eighteenth birthday. Because thirty years have passed since the date of the alleged

The Taylor court was considering A.R.S. 13-135, which provided: All persons are capable of committing crimes except: (1.) Children under the age of fourteen, in the absence of clear proof that at the time of committing the act charged against them they knew it was wrong. Taylor, 109 Ariz. 481, 483, 512 P.2d 590 (1973). The statute was amended and renumbered to 13-501 as part of the 1978 criminal code revision. See Gammons v. Belat, 144 Ariz. 148, 149, 696 Ariz. P.2d 700, 701 (1985).

Bill Montgomery May 29, 2012 Page Five

conduct, the accused no longer has this disposition available to him. Any charges filed today would be filed in superior court and, if convicted, the accused would face greater punitive consequences for the conduct, including a sentence of imprisonment to the department of corrections. The United States and Arizona Constitution prohibit ex post facto laws. See U.S. CONST. art. I, 9; ARIZ. CONST. art I, 10. A state may enact no law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime, when committed. State v. Noble, 171 Ariz. 171, 173, 829 P.2d 1217, 1219 (1992) (quoting Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798). Saucedo v. Superior Court, 190 Ariz. 226, 228, 946 P.2d 908, 910 (App. 1997). Saucedo held that the retroactive application of Article IV, Part 2, Section 22(1) of the Arizona Constitution (the 1996 constitutional amendment providing for the automatic prosecution of certain juvenile offenders as adults) to a juvenile charged with sexual offenses committed prior to the passage of the amendment violated the ex post facto clauses of both the Arizona and United States Constitutions because it deprived the offender of eligibility for a lesser sentence. If charges had been brought against Mitchell while a juvenile, there is a very strong likelihood he would not have been transferred to superior court under the then-existing rules. Given the availability of a lesser sentence if tried as a juvenile, it would violate the constitutional prohibitions against ex post facto laws to attempt to prosecute him today in superior court. While there may be situations wherein an adult should and can - be prosecuted for criminal conduct committed thirty years ago while under the age of eighteen, this is not such a case. I conclude that given the absence of a reasonable belief of probable conviction for the offenses, the age of the accused at the time of the alleged offenses, the high probability that the accused would not have been prosecuted as an adult when the alleged offenses occurred, and the punitive consequences of a criminal conviction in superior court in probable violation of the ex post facto laws, the interests of justice would not be well-served by pursuing criminal charges in this case. Very truly yours,

Sheila Sullivan Polk Yavapai County Attorney C: Amy Dillon, Phoenix Police Department Reporting Detective Lee Stein, Attorney for Mark Mitchell