KINGMAN - A Mohave Superior Court judge has ruled against a motion of alleged "prosecutorial vindictiveness" in the case of a man who is being retried for child molestation after his conviction was overturned on appeal.
Joseph D. Whaley was found guilty by a jury in 2009 of molesting a 9-year-old girl. That conviction was overturned earlier this year when the Arizona Court of Appeals ruled that Judge Rick Williams erred when he failed to give the jury the option of considering the lesser-included offense of attempted sexual conduct with a minor.
The jury acquitted Whaley of sexual conduct with a minor and two counts of kidnapping involving the girl and her mother. Those verdicts seemed to indicate that while the jury believed some sort of touching occurred, there had been no actual rape.
This time around, Prosecutor Megan McCoy said she would avoid that confusion and charge Whaley with two counts of child molestation, so that if the second jury believed the same as the first, they could acquit on the molestation charge that a rape occurred but could convict on the molestation charge that touching did occur.
McCoy said that the charging circumstance was unusual since most people, including herself at the first trial, believed that the one allegation of molestation would include the entire act from start to finish. After all, she pointed out, a prosecutor wouldn't charge someone with multiple counts of assault for each punch they threw during a fight. But under new case law decided while the Whaley case was being prosecuted, the Arizona Court of Appeals recently changed the consequences for both the state and defense when a sexual assault is charged in that fashion.
Whaley's attorney, Sandra Carr, said McCoy's move amounted to double jeopardy, which is supposed to protect a defendant against a second prosecution or multiple penalties for the same offense after conviction.
Carr said McCoy was attempting to prosecute Whaley for previously uncharged conduct in order to salvage a conviction.
"You can't go back and fix it now," Carr said.
Carr also went a step further, alleging that McCoy added the second charge out of "prosecutorial vindictiveness" because she wanted to punish Whaley for raising several objections during trial and later asserting his right to an appeal.
McCoy said the second count was added simply to clarify the charging document. If Whaley were convicted on both counts, she said she intended to seek concurrent sentences, which wouldn't violate the double jeopardy clause because it wouldn't double the punishment.
She also denied that she was seeking retribution against Whaley because he had filed for - and been granted - a new trial.
"We (the County Attorney's Office) always assume a defendant is going to assert their right to appeal," she said.
Williams said McCoy's reasoning didn't amount to vindictiveness, but agreed with Carr that the second count should be dismissed and that Whaley should be retried on the count of child molestation alone.
McCoy also petitioned for Whaley to be held without bond while he waited for his new trial. Williams did not rule on that issue at the hearing but was expected to issue an order in the next week.
Whaley was arrested in July 2008 after the mother of the 9-year-old girl told police she walked in on him abusing her daughter. Both the girl and her mother testified at the trial. A nurse trained in sexual assault testified that the girl's physical injuries were not consistent with her story.