KINGMAN – Mohave County Superior Court Judge Steven Conn offered both attorneys in the Kelly Fisher case the choice for either a bench trial or a jury trial four days prior to the start of trial. The attorneys’ choice was to go for a jury trial.
After closing arguments scheduled for this morning, the jury will decide Fisher’s fate. He is accused of sexual conduct with a minor and conspiracy to commit sexual conduct with a minor.
It’s still unknown whether the defense attorney or the county attorney favored a jury trial more, but the comments from Conn at the second day of the trial indicated he might have made decisions favorable to the prosecution if he were in the position to rule.
In the court discussion leading to the instructions to the jury Thursday afternoon, Conn said he believed that the state had provided sufficient evidence to prove the defendant’s guilt beyond reasonable doubt in the charge of sexual conduct with a minor.
“It’s obvious to me that sufficient evidence had been presented to establish that the defendant … had intercourse with the victim under certain circumstances at the time when she was still under the age of 18,” Conn said. His delivered the comment in the absence of the jury.
But even viewing the same evidence, Conn said he believed there is still a possibility that jury members would reach totally different conclusions.
“(Now I think) maybe there is a good reason why this is not a bench trial,” Conn said.
For Fisher’s second charge of conspiracy to have sexual conduct with a minor, Conn said the state had presented a logical picture through the testimony of witnesses and hard evidence, such as birth certificates, and that the only way for a girl to be pregnant in a house in Colorado City is to have sex with the head of the house. In this case, the head of the house is Fisher. The evidence showed that an extramarital relationship is not likely to happen in a family in which the head is a member of Fundamentalist Church of Latter Day Saints, Conn said.
The state, on the other hand, failed to provide
any evidence to prove the direct contact or agreement between Fisher and Warren Jeffs, the spiritual leader of FLDS, or Fisher and the victim’s biological parents to arrange such a marriage, Conn said.
This gap left the jury enough space to make their own judgments based on what they have heard, Conn said.
Thursday’s trial opened with a statement from Mohave County Attorney Matt Smith, who told the jury he would prove Fisher’s guilt through calling witnesses and presenting evidence. He said he could explain why the victim and other key witnesses could not show up for the trial by citing the cultural and religious background of polygamy.
Defense attorney Bruce Griffen of Flagstaff told the jury that this trial should be all about evidence. The state has the sole responsibility to prove with evidence when and where those crimes happened. If not enough evidence is presented, Griffen said Fisher should be considered not guilty no matter what religion he practices or where he comes from.
Griffen told the jury the only reason Fisher was on trial is that the state doesn’t like the way they live in the border town along Arizona and Utah and wants to do something to get rid of them.
“This is not Kelly Fisher on trial … this is the Colorado City situation on trial. You should understand there is something more important than the Colorado City situation … the importance is our (judicial) system functions … please understand that a not guilty verdict is not a verdict in favor of polygamy,” Griffen said.
The first witness Thursday was Richard Holms, who said he had three wives and nine children before he was kicked out of the church by Warren Jeffs in 2003.
He explained how marriages were arranged in the community, and the absolute power Jeffs had in the Hildale-Colorado City community.
Isaac Wyler was the second to testify to the jury. He is a former FLDS member and still living in Colorado City running a horse training business. His home is just a couple of houses away from Fisher’s home.
Wyler spoke of seeing Wyler and the victim, Jenny Steed, together on a number of occasions, which he said was significant in the community in terms of denoting their relationship.
The third witness was Gary Engles, a special investigator hired by Mohave County Attorney’s Office to investigate Colorado City cases.
Engles told the jury he had tried to serve subpoenas in the city multiple times, but none of them were successful. He said local police officers were also not cooperative in his investigations.
Griffen did not question Engle’s testimony very much, but paid a lot of attention to why he was there in Colorado City.
“Do you know which is the largest city in the county? And second, and third?” Griffen asked. After Engles said he believed the sequence was Lake Havasu City, Bullhead City and Kingman, Griffen picked up his point.
The county attorney’s office hires only two investigators. One of them is in charge of everywhere else, and Engles focuses on Colorado City.
With a low population and low crime rate, the only conclusion one could reach, Griffen said, is the county doesn’t like the way they live and want to do something about it.
“As I said, it’s all about the Colorado City situation,” Griffen told the jury.
After witnesses’ testimony, the state presented the birth certificate of the child of Jenny Steed, which showed that the child was born on August 13, 2001, in Utah. The certificate showed the mother as Jenny Steed, born on July 12, 1984, and the father as Kelly Fisher, born on May 13, 1967.
Smith said the state-issued birth certificate indicated that Jenny was pregnant when she was still under the age of 18.
After Thursday’s court session, Smith said he had presented all the evidence he had to the jury, and he would leave it to them to make the decision.
He refused to say what kind of closing statement he had for today, but made it clear that he would not dismiss the rest of the eight cases against members of the polygamous community even if he fails.
Smith insisted that he is trying a person who had sex with an underage girl and it has nothing to do with polygamy or Colorado City. “It’s no difference that it happened there in Colorado City or happened anywhere in Mohave County or the state of Arizona. People who have sex with underage girls just should be prosecuted,” Smith said.
Griffen said he could not speculate what the jury would think about the case.
In his closing statement, Griffen said he is going to question the state’s move to try to prove Fisher is guilty by culture rather than evidence. In his opinion, the state has failed to provide any specific evidence on anything Fisher did or did not do.
Fisher is one of the eight men from Colorado City charged with sexual conduct with a minor and conspiracy to commit sexual conduct with a minor. He is believed to be a member of the Fundamentalist Church of Latter Day Saints.