FLORENCE — A sexual assault trial was ended and the case dismissed in October by a Pinal County Superior Court judge after alleged misconduct by a deputy Pinal County attorney.
The case involved Arthur Tarango, 55, from Miami, Arizona, who was charged with two counts of sexual assault and one count each of attempted sexual assault and threatening. The trial in the case started on Oct. 12.
According to court transcripts, Superior Court Judge Patrick Gard dismissed the case with prejudice the next day after two cases of alleged misconduct by Deputy County Attorney Travis Jenson. Dismissing the case with prejudice means that the case cannot be brought back for a retrial.
In an email, Pinal County Attorney Public Information Officer Trevor Smith said the office was “unable to comment at this time as we are reviewing the matter and exploring our options. Our focus, as always, is to seek justice for the victims and communities we serve in every case, and we are diligently working to do so in this matter.”
The first incident was reported on Oct. 9 by attorneys from the Pinal Public Defender’s Office in a motion detailing how they had discovered several disciplinary actions in the backgrounds of three police officers who were involved in investigating the case that should have been found out and reported by the prosecutors.
According to court records, Deputy Public Defenders Anthony Kenney and David Marviglia reported that they had filed a public records request with several local law enforcement agencies requesting disciplinary records for the officers. The records that were returned from some of the law enforcement agencies showed that the three officers had been written up or investigated for improperly disposing of recordings with witnesses, not following orders from a superior, investigations into one officer leaving a weapon in the jail and mis-stating facts in a case. The defense pointed out to the court that all of this information should have been revealed to them by the prosecutor’s office before the trial.
Gard ordered on Oct. 9 that the prosecutors could not call the officers to testify during the trial.
The second incident occurred on Oct. 12, when the defense reported to the court that Deputy County Attorneys Jenson and Patrick Johnson, along with investigator Herb Padilla, had interviewed the victim in the case without her attorney present in preparation for the trial.
The witness had been assigned an attorney by Gard on Oct. 9, according to court transcripts.
The issue was brought to the attention of Gard by Kenney and Marviglia after they received an email from Jenson and Johnson stating that they had met with the witness to prepare for the trial.
Jenson admitted to the court that he, Johnson and Padilla had interviewed the witness on Oct. 12 but he thought that the witness wouldn’t be represented by her attorney until the start of the second day of the trial on Oct. 13. Jenson stated that the interview was an inadvertent mistake on his part and that the interview shouldn’t affect the trial.
“I didn’t intentionally communicate with her knowing that she had counsel appointed,” Jenson said in the transcript. “It wasn’t a thought that, oh, she has counsel, I am going to go behind counsel’s back and communicate with her. It was something done inadvertently. Again, my thought and recollection was that it was going to be representation at trial for her testimony.”
Gard stated that he had intended that the witness’s attorney start representing her as soon as he was assigned to her on Oct. 9.
The witness’ attorney, Steven Zachary, confirmed for Gard that he was not informed of the interview before it happened and had not reached out to speak with the witness on that Friday to tell her that he was representing her. So she was unaware that she was being represented by an attorney until the morning of Oct. 13.
Gard gave Zachary an opportunity to speak with his client. When Zachary returned, he told the court that he didn’t think his representation of the witness was compromised by the prosecutor’s interview.
However, if he had had a chance to speak to the witness before her interview with prosecutors, he could have asked her and advised her on whether she wanted to speak to prosecutors or if she wanted to have the defense present for the interview as well and what might happen if she testified in a certain way, Zachary said.
Gard asked if Jenson or Johnson had informed the witness that she was being represented by an attorney before the interview.
According to court transcripts, Johnson said neither he nor Jenson informed the witness before the interview that she was being represented by an attorney. Johnson also stated he was unaware that an attorney had been appointed to represent the witness because he had to leave part way through the pretrial hearing on Oct. 9 and was not there when the decision to assign an attorney to the witness was made.
Jenson also claimed that he later forgot that an attorney had been assigned to the witness.
Gard asked Kenney what sanctions he was expecting the court to make against the prosecutors.
Kenney suggested that the court either prevent the witness from testifying or dismiss the case entirely.
Johnson argued that if an ethical violation had been made by the prosecutors, that it was the victim’s rights that would be infringed, not the defendant’s. He pointed out that Jenson had notified Kenney of the interview because of learning something that might be useful to the defense.
“He (the defendant) should not get the benefit because the victim’s rights were potentially violated in this case,” Johnson said in the transcript.
“Not potentially. They were violated. She is not raising it, but they were violated. You violated an ethical rule,” Gard said. He pointed out he had reminded the attorneys twice that Zachary needed to be in the courtroom on Oct. 12 to represent his client. “She is a represented party. Your ethical obligation is not to have contact with a known person who is known to be represented by an attorney.”
Johnson argued that there were other sanctions that the court could take rather than dismissing the case and potentially punishing the victim in the process.
Gard said he would not preclude the witness from testifying, but would prevent prosecutors from introducing any information from the interview and would consider a motion to dismiss later in the day on Oct. 13 and would consider referring the matter to the State Bar of Arizona.
“A second time in this case that I found prosecutorial misconduct. I am appalled. Appalled, Mr. Jenson, that you are talking to a represented counsel,” Gard said.
The court took up the issue again after lunch on Oct. 13, with Jenson arguing against the defense’s motion to dismiss the trial with prejudice.
Gard said that individually the misconduct with the research surrounding the officers’ records and the interview with the witness would probably not rise to the level of prosecutorial misconduct, the fact that he saw a pattern of behavior by Jenson and a “lack of candor” by Jenson was enough for him to find that “the defendant’s right to a fair trial is prejudiced. And I am going to dismiss the case, unfortunately, with prejudice.”
Gard issued a written ruling on the dismissal on Oct. 19 and filed a report with the State Bar against Jenson.
The County Attorney’s Office has filed an appeal of the dismissal to the Arizona Court of Appeals.