Mr. H. was a college student at ASU who lived in the dorms. He had been seeing a young lady casually who lived in a different dorm. About 10:00 at night he went over to this girl’s dorm to help her with her math and drink some “Fireball” whiskey. The girl also used a marijuana wax pen. They eventually began making out, and were engaging in some heavy-petting when her ex-boyfriend texted her saying “she was hot.” At that time, the mood was ruined and Mr. H left to go back to his dorm.

Upon arriving to his dorm, he told his roommate and his roommate’s girlfriend what had happened. They told him to go back over to her dorm room and talk with her about it. At about 1:10 in the morning, he walked back over and knocked on her door. He went inside, and they began making out and engaging in sexual contact. Eventually, the girl said she was “tired,” and Mr. H. got the hint and left her dorm room. The next day, Mr. H. was contacted by an ASU police Detective in order to question him and receive a buccal swab (for DNA testing) from his mouth.

We got involved and were able to secure various text messages that were sent from the girl immediately before and after the alleged Sexual Assault. There was no mention of sexual assault in any of those texts, and the alleged Sexual Assault wasn’t reported until the next day. It was our hypothesis that her recently former boyfriend who texted her that night, had come over later and was upset that she was with Mr. H. We were able to show the Detectives all of the evidence, along with a passed polygraph test, that Mr. H. only engaged in consensual sexual activity with this young lady. Although, he originally was facing a minimum of 10 years in prison, no charges were ever brought against Mr. H.

FELONY SEXUAL ASSAULT NOT CHARGED – State v. Mr. W (DMC No. 13875) (Phoenix Police Department DR No. 2013-XXXXXXXX): Mr. W had engaged in consensual sex acts with a neighbor after an evening of partying. Both Mr. W and the neighbor whom he engaged in a sex acts with, had significant others at the time. Sometime after this consensual sex act, Mr. W received a telephone call from a Detective at the Phoenix Police Department. The Detective indicated he wanted to speak with him about an allegation of Sexual Assault per Arizona Revised Statute ARS 13-1406 being made by Mr. W’s female neighbor. Prior to the scheduled meeting, Mr. W’s contacted and retained our firm.  Once our services were retained, I met with the Pre-Charge team and we decided (1) order a copy of the transcripts from an Injunction Against Harassment hearing that had occurred prior to the contact with police, (2) obtain a copy of the police report regarding this investigation, (3) contact the Detective regarding the status of the investigation, and (4) send a Trebus letter to the Maricopa County Attorney’s office.

Immediately after being retained, we contacted the Detective who provided us with the police report number in this case. We advised that our client would not be speaking with the Detective at that time.  The Detective indicated the case would be “pending” for now.  We requested and received copies of the Order of Protection hearing approximately three weeks later. In that information it was determined there were numerous calls for service that had occurred to the alleged victim’s home. We submitted requests for these to determine if our theory that the alleged victim was scared of her boyfriend and what he would do to her (i.e., was there any history of domestic violence) which is why she would make up the false allegation of Rape.

Approximately a week after receiving the documents, we prepared a detailed Trebus/Bashir letter which was sent to the County Maricopa Attorney’s office. Just days after this Trebus/Bashir letter had been sent, Mr. W voluntarily submitted to a private polygraph examination which he passed.  After receiving the passed results from the polygraphist, we drafted a supplemental Trebus/Bashir letter and submitted it to the County Attorney’s Office. One week later, we had a discussion with the Detective about the polygraph and the passed results. The Detective requested a hard copy of the passed polygraph, which was sent to him. Just shy of one month later, we spoke with the Detective, who indicated that the case was in a “non-active status.” He indicated he would be working on getting a copy of the police report ready for. Later he confirmed that the case was not going any further.

FELONY SEXUAL ASSAULT NOT CHARGED – State v. Mr. E (DMC No. 13760) (Phoenix Police Department DR No. 2013-XXXXXXXX): Mr. E, a 17-year-old high school student, found out through the grapevine at school that his ex-girlfriend, was making allegations that he had Sexually Assaulted her per Arizona Revised Statute ARS 13-1406. After learning of this he and his family retained our services. This was prior to any police contact. Once our services were retained, I met with the Pre-Charge team and we decided to (1) determine if we could obtain text messages through T Mobile, (2) send a Trebus letter to the Maricopa County Attorney’s office, (3) order a copy of the police report if available, (4) have our client submit  to  a  polygraph  examination,  and  (5)  contact  the  Detective  and  provide  any  passed polygraph to the Detective. After submitting a Trebus letter to the Maricopa County Attorney’s office and submitting a request for the police report, we immediately reached out to the Detective from the Phoenix Police Department.

Two days after being retained, we had our first contact with the Detective where she discussed the alleged allegations being made by the former girlfriend. It was learned at this time that this report was made a year after the alleged Sexual Assault occurred. Immediately following this conversation and obtaining information regarding the specific allegations, we scheduled Mr. E for a polygraph. The Pre-Charge team crafted the three questions to be asked during the polygraph examination including, “Have you ever had nonconsensual sex with Ms. M?”, “Did you ever force Ms. M to have sex with you?”, “Did Ms. M ever say ‘no’ during any of your sexual contact with her?”. These questions along with a letter were submitted to the polygraphist.

After receiving a passed polygraph report from the polygraphist, the Detective was informed of the results. The Detective requested the passed polygraph results and indicated, after reviewing it, she would let us know if the case was going to go any further. That same day we emailed a copy of the report to the Detective. A month after getting on board on Mr. E’s case, we received word from the Detective that the case would be “closed” as there was no evidence to support that a crime was committed.

FELONY SEXUAL ASSAULT NOT CHARGED – State v. Mr. W (DMC No. 14200) (Glendale Police Department DR No. 2014-XXXXXX): At the time of these allegations, Mr. W was a 49-year-old male who had been involved in a very tumultuous sexual affair with the complaining alleged victim for about 3 years. They has met online and developed a purely physical relationship from Mr. W’s point of view. Their somewhat tumultuous ‘adventurous” sexual relationship led them to engage in consensual sexual intercourse numerous times in various locales both in and out of doors. Eventually, the complaining victim was tired of a purely physical relationship and pressed Mr. W to become more emotionally involved. Mr. W was loath to do so, as the complaining alleged victim, in addition to her sexual proclivities, demonstrated significant emotional liability, or craziness, in lay terms.

Mr. W eventually became involved in a romantic relationship with another person and decided to terminate his relationship with the complaining victim. That termination did not go cleanly and the complaining victim continued to contact and harass Mr. W. Eventually the victim harassed Mr. W to the point of getting him to meet with her at his house. Her continual harassment had driven him to become quite upset. They both went into his house where they engaged in an argument. The argument turned from a loud, volatile confrontation into a heated passionate clench in which both the parties were kissing. That subsequently devolved into a session of very physical sex. At the end of that unusually physical sexual encounter between them, Mr. W told the complaining victim that they could not continue to do this as he was in a relationship.

They were apart for a couple of weeks, but then met up again to renew their sexual relationship on another two or three occasions. Their contact was then terminated for an extended period of time until months later the complaining alleged victim went to the police department and claimed that she had been Sexually Assaulted per Arizona Revised Statute ARS 13-1406 during the encounter at Mr. W’s house. The complaining alleged victim gave multiple interviews to the police department including one videotaped forensic interview. The complaining alleged victim then agreed to cooperate in a “confrontation call” that was unsuccessful in reaching Mr. W. Subsequently, the investigating Detective contacted Mr. W directly and informed him that he was investigating an alleged Sexual Assault occurring on the date the two had sex in Mr. W’s house. He was understandably quite overwhelmed by this allegation and asked to contact the Detective at a later time.

Mr. W then came to our office and retained our services. At the meeting with Mr. W, we immediately reached out to the investigating Detective and advised him that we represent Mr. W. We followed that up with a written notice of representation to the Detective. We also sent a letter to the Maricopa County Attorney’s Office advising them that if the grand jury was impaneled, Mr. W requested that they be informed that he was prepared to be present and testify. When the Detective got back to us he was loath to provide us with significant information on the case as it was still under investigation. We were able to confirm however that was an allegation of nonconsensual sex between the two parties. We were also able to confirm that the investigating Detective was well aware of the lengthy sexual history between the two parties.

Our Pre-Charge team decided that the best way to proceed was to have Mr. W immediately undergo a polygraph regarding the issue of any nonconsensual sexual activity. Our investigation further revealed that this allegation was made approximately a week after Mr. W became engaged to his new girlfriend. Apparently the complaining alleged victim was continuing to stalk Mr. W as she then found out who Mr. W’s fiancé was and sent a face book posting claiming that Mr. W was a “rapist.” Shortly after that allegation was made to the police and the police contacted Mr. W, Mr. W submitted to and successfully completed a polygraph indicating that he was being truthful when he said that he had never had sex with the complaining alleged victim without her consent.

We then drafted a detailed letter and provided it to the Detective and to the Maricopa County Attorney’s Office. The letter included specific information about the tumultuous and somewhat unconventional sexual relationship between the 2 parties. We specifically pointed out that Mr. W had always advised the complaining alleged victim that the relationship was only sexual in nature and would not turn into something more serious. We also advised them of the fact that after the alleged sexual assault, complaining victim had consensual sex with Mr. W on multiple occasions. We pointed out the coincidental timing in the alleged victim’s sexual assault allegations with regards to Mr. W’s engagement. We also pointed out the threatening and harassing contact from the reported victim to Mr. W’s fiancé. Lastly, we provided them the polygraph showing Mr. W being completely truthful when he stated that he never engaged in non-consensual sex with complaining alleged victim.

All of this information was included in the Detective’s final report on this matter. The Detective stated “at this point of the investigation there is nothing to support an arrest or submittal of charges.” The Detective also stated “this matter is being closed pending permission from [Mr. W’s] attorney to speak with him. At this point of the investigation there is no probable cause for arrest in this matter.”

FELONY BURGLARY and FELONY SEXUAL ASSAULT NOT CHARGED – State v. Mr. W  (DMC No. 14931) (Peoria Police Department DR No. 2015-XXXXXXXX): At the time of this allegation, Mr. W was a 49-year-old male.  Mr. W was a local businessman who maintained a residential boat on the Lake Pleasant Marina. He occupied the boat with his girlfriend. One evening at the Marina, Mr. W and his girlfriend were having dinner at a restaurant with another couple they had known for a period of time. There was a substantial amount of drinking going on. The parties left at different times starting with the female friend leaving and going to her own boat earlier in the evening. The female friend alleged that she was sleeping in her boat when she was awoken by a male lying behind her in her bed kissing her and digitally penetrating her. She apparently engaged in the sexual activity for a short period of time, believing the person to be her boyfriend, until she reached back to touch the person’s head. When she touched the person’s head, she immediately realized  it  was  not  her  boyfriend  and  then  realized  it  was  Mr.  W.  The victim claims she confronted Mr.  W  and  he  indicated  he  was  drunk  and  thought  he  was  with  his girlfriend. He immediately left the boat.

The victim called her boyfriend and the two of them exchanged calls and text messages with our client and his girlfriend. Some of the text messages from Mr. W were alleged to have included “send me to jail”, “beat me to the ground”, “please don’t do this to me”, and “I will do anything to make this right”. The complaining victim’s boyfriend confronted Mr. W and claimed he apologized for going onto the boat. Mr. W also have alleged to have told his girlfriend that he “fucked up”, but did not state specifically what had occurred.

Mr. W retained us and we immediately discussed with him police procedures and policies with this type of investigation. Mr. W was advised of “confrontation calls” and how those can appear to come from the listed victim or other parties. Subsequently, confrontation calls were attempted by both the listed victim and her boyfriend. Mr. W was prepared and made no inculpatory statements. We then immediately reached out to the Detective in this matter and advised her of our representation. We provided her with a written personal invocation of Mr. W’s constitutional rights. We also immediately sent a letter to the Maricopa County Attorney’s Office advising them that Mr. W wished to testify to the grand jury should they wish to hear from him.

We then researched the facts and the law extensively on Mr. W’s case to address a specific legal issue, i.e., the elements of Burglary per Arizona Revised Statute ARS 13-1507, Sexual Assault per Arizona Revised Statute ARS 13-1406, particularly the requirement that any sexual activity be “without consent.” Based on our research it did not appear that any potential sexual contact between Mr. W and the complaining victim would meet the requirements of “without consent.” Since the alleged Sexual Assault was also the underlying basis for the Burglary it appeared that there would be no basis for either charge. Technically however, these legal issues were fallback positions that would have to be raised if Mr. W was charged.

After a relatively short period of time of four months, the case was closed as “inactive” based on, among other things, “Mr. W retained an attorney and did not make any admissions or give a statement to officers about the allegations. [Mr. W] did not make any admissions during two confrontation calls with [victim] and [boyfriend].” The Detective further stated “at this time, the facts of this case do not meet the elements required for the successful prosecution of the alleged crime. This case is inactive.”