Jan. 12, 2007— -- JIM AVILA:So let…let's look at this case of this 15 year old boy…First of all, what happened to the case? Police go to his house. Guns drawn, uh, 6 o'clock in the morning, quiet cul-de-sac in Phoenix. Wake up Mom and Dad, with guns in their faces. A gun to the 16 year-old who's up in the second floor…bring him down, accuse him of child pornography. He's charged with nine counts. It could have been 90 years. It's a two year process. At the end of the day, he's charged with …a crime…which I doubt you've ever charged anybody with before as an initial crime…What happened in your view?
ANDREW THOMAS:Well, and…and just to clarify, in terms of the police action, uh, this office wouldn't have had control over that, and I…I frankly don't know the exact facts of…of how the search warrants were executed. But there were search warrants obtained from a court of law that were…uh, were executed. And as a result of that, evidence was found uh, linking uh, this juvenile defendant with the…with possession of child pornography on his computer. He was…
JIM AVILA:(Overlap) What was the evidence that linked him to it?
ANDREW THOMAS:Well, in…initially, the National Center for Missing and Exploited Children uh, came into contact with the Phoenix police department. They…as a result of that tip, and evidence uh, linking that computer to a yahoo web site were able to work with our office, obtain search warrants. And uh, they went in and uh, conducted that uh, uh…that investigation.
ANDREW THOMAS:They then spoke to the uh…the juvenile who made uh, certain admissions. Uh, while he denied accessing adult uh, pornography, he did admit to being a part of uh, accessing uh, adult pornography and…
(OFF-MIKE)
ANDREW THOMAS:The juvenile admitted that uh, while he…or he said…the juvenile said that uh, while he did not access child pornography, he did uh, access adult pornography as…as part of uh, a…a group…a web site that he uh, went onto on the Internet. So you have all of that evidence plus some incriminating statements. And as a result of that, the…the case was brought. But as is…
JIM AVILA:(Overlap) I just want to get…
ANDREW THOMAS:Yeah.
JIM AVILA:…specific on that.
ANDREW THOMAS:Sure.
JIM AVILA:Because you say all of that evidence. When you listen carefully to what you said, the evidence was that again, there were some pictures on his computer that were child pornography.
ANDREW THOMAS:Yes.
JIM AVILA:You didn't have any admissions by him that he had anything to do with child pornography.
ANDREW THOMAS:Correct.
JIM AVILA:Okay. There was no evidence that you found that directly linked him to it, because it was a computer in the family's home.
ANDREW THOMAS:No, he admitted uh…not to …he…he did admit to the fact that it was his computer. He admitted to the fact that he had used that computer to access uh, the web sites where he frequented adult pornography. And he, admitted that that was the computer that he used for going onto the Internet. So…and it was…it was the computer that he used and it was…
JIM AVILA:(Overlap) Who…who else used that computer in the family?
ANDREW THOMAS:Well, the…there…there may have been other people in the family who used it, but here…here's the thing. Uh, the…and I…I began…or at some point, I started to talk about the individ…the need for individualized justice.
JIM AVILA:So there was a huge amount of evidence that in fact, this kid was not involved in a sex crime. And yet, your office and you yourself continue to believe and put him through two years of hell, because you continue to believe despite lie detector tests, court psychiatrist reports, a report from the computer expert who said it could have come from anywhere…you continue to say…
ANDREW THOMAS:(Overlap) Well…
JIM AVILA:…that he did it.
ANDREW THOMAS:Well, I…again, I…I'm not sure that that's totally right. But you gotta…
JIM AVILA:(Overlap) Halfway right?
ANDREW THOMAS:…you gotta (Inaudible)…
JIM AVILA:(Overlap) (Inaudible) right here.
ANDREW THOMAS:Well, our…our experts certainly didn't think…
JIM AVILA:(Overlap) Your experts…
ANDREW THOMAS:(Inaudible) could have gotten it from anywhere.
(Overlapping Comments)
JIM AVILA:Your … your experts…
ANDREW THOMAS:I mean (Laughter) …
JIM AVILA:…your expert was not an expert who…who did any analysis whatsoever…
ANDREW THOMAS:Well…
JIM AVILA:…as to where it came from. All your expert did was say it's here.
ANDREW THOMAS:Well, right. But let's…let's back up. When you're looking at a case…again, not to…belabor the point. You've gotta look at all the evidence. Here, we had evidence that from the…the center…the National Center for Missing and Exploited Children that came to the Phoenix police department showing that this computer user in this household had access a yahoo account where there was child pornography.
JIM AVILA:Well, that's not exactly…
ANDREW THOMAS:(Overlap) We didn't obtain…
JIM AVILA:…what it said, is it?
ANDREW THOMAS:Well, no that…
(Overlapping Comments)
JIM AVILA: It said that a computer in this addr- …house at this address has some …compu - …has some child pornography on it.
ANDREW THOMAS:No, they…
JIM AVILA:It didn't say this computer user…
ANDREW THOMAS:No.
JIM AVILA:It didn't identify a computer user.
ANDREW THOMAS:It …it identified a computer.
JIM AVILA:Right.
ANDREW THOMAS:And the computer had accessed a yahoo account where there was child pornography. That was the…the uh, basis for the search warrants issued by a court.
JIM AVILA:Right.
ANDREW THOMASOther evidence was assembled in the course of executing the search warrants. The computer was found and seized. Child pornography was found on there. The juvenile was interviewed. He admitted at least partially, the substance of the crime, which was yes, he used the computer to go on the Internet to access pornographic sites.
It turned out…he says it was only adult sites. Quite frankly, criminal defendants are not…famous for being forthcoming with the facts. So you've got to weigh that…
JIM AVILA:(Overlap) Except for this one passed two lie detector tests.
JIM AVILA: It sounds a bit like you're trying to have it both ways. Because you're saying…you…you didn't charge him with any …you…and at the end of the day, you let him go. But you…you…the final…at the end of the day, he wasn't charged with any child pornography. None. He was … he …
ANDREW THOMAS:Right.
JIM AVILA:He…
ANDREW THOMAS:Well, but he was charged with solicitation to furnish uh…to furnish…
JIM AVILA:(Overlap) He bought a Playboy magazine …
ANDREW THOMAS:… sexual exploitation…
JIM AVILA:…and took it to school and showed it to other 16 year olds.
ANDREW THOMAS:That's what he pled to, but …but that's…that's a… a little …uh, that requires a little bit of explanation. It is very typical in plea agreements…what you have to do is, if you decided okay, we want to try to resolve this case because the criminal charges were originally brought… we want to try to resolve it and specifically, you bring the charges down.
And what you have to find is an appropriate uh, offense at that level of felony so that you can …can enter into the plea agreement. That's typically how the…the decision making process is done. So um, although I wasn't privy to that decision making process, it was a…a line prosecutor who handled tip…I've done that. And typically, what you do is you would find in this case, a classics on designated felony where there's a factual basis so that … I mean, you can't just pick any…uh, any classic felony.
It has to be something that relates to the crime as alleged so that the defendant can go forward and admit guilt in court. And…and I should note, not to put too fine a point on this, but this defendant did plead guilty in a court of law.
JIM AVILA:To?
ANDREW THOMAS:To …to… to the solicitation charge, which is a …class six (Inaudible)… undesignated felony.
JIM AVILA:Which was…
ANDREW THOMAS:And…
JIM AVILA:…showing a Playboy magazine to another 16 year old at school.
ANDREW THOMAS:Well…and …and…
JIM AVILA:(Overlap) Is that child pornography?
ANDREW THOMAS:(Inaudible)…well, no, but that…that's the whole point of this. That when you…you're trying to resolve a case, you want to reach the right outcome so that there is justice. We started up this conversation by talking about these tremendous hammers and people can be sent for too many years in prison.
Now we have, I guess, the accusation is well, maybe there wasn't enough. That's the whole point of…of prosecutorial discretion in the judicial system. It's finding a just outcome in an individual case. That was the balance we tried to strike in this case. I think that the line attorney who handled it, handled the case properly and uh, quite frankly, the defense attorney would have been ethically bound not to allow his client to uh, plead guilty to a crime he hadn't committed.
And the judge would not have been allowed by law to accept the uh, guilty plea in open court if he did not think there was a factual basis uh, to accept that plea.
JIM AVILA: Let me in fact, read you what the Judge said about that plea agreement. He said as you were negotiating the plea agreement here…the reason why this agreement took place is because you couldn't prove the things you just alleged now, or else we wouldn't be here.
ANDREW THOMAS:Well, I…I wasn't there to…to hear that.
JIM AVILA:Oh, it's right here at the transcript (sic).
ANDREW THOMAS:Well, that's fine. But here's the thing: This Judge…there is no way a court…a …a judge in a court of competent jurisdiction in this state can accept a guilty plea unless they believe the uh, defendant is guilty.
JIM AVILA:I mean, he …
(Overlapping Comments)
ANDREW THOMAS:They're just not allowed to do that. I mean, that's (Inaudible)…
JIM AVILA:He did accept the plea.
ANDREW THOMAS:Right.
JIM AVILA:Of showing a Playboy magazine to another 16 year old. What he didn't accept was exactly what you're doing now…trying to stain the boy with child pornography…
ANDREW THOMAS:No.
JIM AVILA:…charges…
ANDREW THOMAS:I disagree.
JIM AVILA:…that you could not prove. That's what he says right here.
ANDREW THOMAS:I disagree. Well, with all due respect to the judge it's his job not to accept a guilty plea if he really thinks that the person is innocent.
JIM AVILA:And you know what he did?
ANDREW THOMAS:That's his job.
JIM AVILA:You know what he did?
(No response heard.)
JIM AVILA:He invited the defense attorney to appeal. And he did appeal.
ANDREW THOMAS:(Laughter)
JIM AVILA:And within days, the judge overturned it and said…
ANDREW THOMAS:(Laughter)
JIM AVILA:…that the plea agreement was not right. Because he said…he said that…I've read the pre-sentence report, and my memory of the comments that went back and forth about the underlying discussions for a factual basis of this pleading are perhaps a little big…bit different than what the states articulated.
ANDREW THOMAS:(Laughter) So the judge admitted a mistake.
JIM AVILA:What he said was, you guys have been good…have…have…have…have agreed to this plea agreement. The state won't do anything else but this. But mr. defense attorney, come back to me and I'll take out the sex crime part. And that's what he did.
ANDREW THOMAS:Uh huh.
JIM AVILA:What does that say about what you guys were trying to do?
ANDREW THOMAS:Tells me the judge admitted he made a mistake. That's all it tells me.
JIM AVILA:It doesn't tell you that you… you tried to hold onto a case you couldn't prove?…I guess here's my skepticism about that: here you are, a hard line guy. You campaign, uh, against this crime. You kept some kid you believe actually downloaded child pornography, this heinous crime. You believe you can convict it in court, and you don't do it.
ANDREW THOMASWell, we think there's a reasonable likelihood of conviction. Uh, and that's how we felt when we filed the charges. Now, you…you've got to understand, in the criminal case, there is give and take. I mean, the defense attorney is going to come to the prosecutor and say, "Well, I know you've charged him with X, Y and Z, but are you aware of this, are you aware of that?" That give and take process occurred. And he had a…uh, had an outstanding attorney who, uh, worked with our office. Uh…talked to our prosecutor, our staff about various, uh, issues.
And at the end of the day, we felt that for this particular case, that was the right outcome. Now, this uh, in…in fairness, this is very different from the guy I was talkin' about, uh, and I can give you more specifics about him as an example of somebody I'd want to throw the book at. Somebody who's basically trafficking in child pornography, those guys should go to prison for a long time. I got no sympathy for them at all.
The…this young man wa…was different. I… now, was…was it appropriate for us to bring these original charges? Yes, I think it was. Was the ultimate outcome appropriate? I think it was, based on all the factors of the …of the case. Can reasonable people disagree about that because they, you know, they take a look at it and they think it was maybe too harsh or too light? I suppose.
But that's what prosecutors are paid to do. We have …We have to try to do justice in individual cases, that's what courts are paid to do.
ANDREW THOMAS:But the ultimate outcome was what it was. And the defendant accepts that, the state accepts that, and I'm content that the appropriate sanction was imposed to hold him accountable, teach him a lesson, teach him that this isn't fun and games. If you're goin' to start playing around on pornographic sites, and you come across child pornography then, you know, you better accept the consequences of that.
And whatever happened in his case, uh, w- …presumably we'll never know because, uh, we…we haven't been able to…to fully get to the bottom of that. But, uh, an important lesson was taught here. But justice was served in that the appropriate outcome wasn't to send this guy to prison for 50 years. Was to teach him a good, hard lesson so he doesn't do it again. And that's what happened.
JIM AVILA:The defense attorney didn't agree to a plea that said this boy committed child pornography…
ANDREW THOMAS:Uh-huh.
JIM AVILA:…in any way.
ANDREW THOMAS:Right.
JIM AVILA:Okay? He didn't do anything unethical. He…he did agree to a plea of a boy who took a Playboy magazine to school.
ANDREW THOMAS:Uh-huh.
JIM AVILA:Showed it to 16-year-olds.
ANDREW THOMAS:Right.
JIM AVILA:A charge which we've not able…been able to find has ever been leveled against anybody in this county ...
ANDREW THOMAS:Uh-huh.
JIM AVILA:…before.
ANDREW THOMAS:Yeah, I don't know. It may have…it may have been a while. It's…it's certainly not one that we bring commonly. But again, to explain, uh, how you reach that plea agreement, if you've decided that somebody is going to plead to, instead of a Class Two felony, it's a Class Five felony, or a Class Six undesignated felony, then to reach the plea agreement that can then be entered into court, I mean, not to be too technical about it, but you've got to find a Class Six felony that fits the factual description of what happened so that you can go into court and you can say, "On this date, this is what I did" and the judge can say…can examine the facts and accept a guilty plea.
So, while this would have been an unorthodox thing to a person to plead to, uh, that it's because of the common desire of prosecution and defense to reach a just outcome in looking for a Class Six undesignated felony that fit this…this fact pattern. And…and that's, uh, that's how we reach this point. And, uh, but for the record, you know, these kids really shouldn't be takin' (Chuckles) Playboys to school.
Uh, not that, uh, we have some big crackdown here on that but, uh…but the…the law is on the books, and…and maybe it's on the books if only to allow us, in cases like this, to properly dispose of the case.
