Another stain on Andrew "Nifong" Thomas' record: The continued imprisonment of Courtney Bisbee.
Courtney Bisbee in happier times, with her daughter Taylor Lee.
The case of convicted student-boffer Jennifer Mally makes my blood boil. Not because I have any problem, per se, with the six months punishment she received after pleading guilty to three counts of getting horizontal with a 16-year-old. After all, the Paradise Valley High School instructor will also have to register as a sex offender -- the modern-day equivalent of Hester Prynne's scarlet letter. And being a felon's no picnic on its own. As for her victim's victimhood, let's be honest: a 16-year-old male is likely to recover from the horror of having consensual relations with an attractive English teacher. That's not to belittle the crime, only to argue the relative fairness of the sentence considering the circumstances.
What enrages me about Mally's sentence is comparing it to the 11 years of confinement currently being endured by former Horizon High School nurse Courtney Bisbee. Bisbee was convicted in a bench trial in 2006 by Maricopa County Superior Court Judge Warren Granville for two counts of molesting a 13-year old boy. Put aside for a moment that Bisbee is likely innocent, for reasons I'll enumerate shortly. Everyone agrees that she and the boy never had intercourse. The most that may have transpired between the two was some French kissing, and the groping of each other's genitals. Bisbee may have touched the victim's penis. He may have touched her privates. For this, Granville sentenced Bisbee to 11 years on both counts, to run concurrently.
Reading the transcript of the trial, it seems plain that Bisbee's decision to forgo a jury trial was unwise, albeit based on the advice of counsel. The prosecution's case had more holes in it than the Iraqi navy. The testimony from prosecution witnesses was conflicting. There was no physical evidence of the crime. And certain evidence that should have been obtained at the time of Bisbee's arrest was not obtained. A judge is but one man, however learned. In a jury of 12, there are a dozen possibilities of some reasonable doubt taking hold.
In any case, were Bisbee guilty, her punishment would still be unjust, if we use Mally's six months as a yardstick. (Granted there was an age difference in the kids, and a difference in the law, but Bisbee should never have been convicted to begin with.) Consider also that Bisbee lost her nursing license as well as custody of her daughter. And she, like Mally, will live her post-prison life as a registered sex offender.
The rub, of course, is Bisbee's innocence, and there is convincing evidence to back it up. There is the notarized recantation of Nik Valles, the brother of accuser Jon Valles. Nik took the stand as a witness for the prosecution during Bisbee's trial. In the affidavit of recantation, Nik alleges his mother Janette Sloan coerced him into providing false testimony, and prompted his brother to do likewise.
"My mother, Janette Sloan, wanted my brother, Jonathan Valles, to make false accusations against Courtney Bisbee for financial gain," states Nik in the affidavit, which you can read on the Web site justice4courtney.com. "I witnessed my mother, Janette Sloan, tells [sic] my brother, Jonathan Valles, to lie and stick to the story and `you'll be a rich kid.'"
Later, Nik claims, "The state portrayed me as a corroborating witness, which is totally false."
Nik insists he felt "threatened" by his mother and her boyfriend, but since he's turned 18 and currently lives with his father, Gene Valles, he can speak the truth.
"Now as an adult, away from my mother, I can no longer allow an innocent woman to remain in prison for a crime that she did not commit," Nik states in the affidavit. "I believe Courtney Bisbee should be released from prison immediately and exonerated and the real criminals who enabled this tragedy should face criminal charges."
This chilling document, which has been on file with the court for well over a year, should be enough to reopen Bisbee's case. But there's more. There's also a deposition by a friend of the accuser who claims Jon Valles told her nothing happened between he and Bisbee. In another deposition on file with the court, a woman who once lived with a prosecution witness tells of that witness' admission that no crime occurred.
Andrew Thomas cannot claim ignorance of these affidavits and depositions. In addition to being on file with the court, activists demanding Bisbee's release have faxed and mailed these documents on numerous occasions to the County Attorney's office. And according to the American Bar Association, Thomas has an obligation to act.
Indeed, as James Podgers writes in the April 2008 issue of the ABA Journal,
"Recent amendments to the ABA model Rules of Professional Conduct instruct prosecutors that their ethics obligations require them to disclose evidence suggesting that a criminal defendant may have been wrongly convicted and to take steps to remedy a conviction when the evidence is clear and convincing."
Podgers quotes George Washington University law professor Stephen A. Saltzburg, who asserts, "The rules are very simple...If prosecutors have new, credible evidence of innocence, they have to do something about it. It’s not a big burden.”
So it is clear that Thomas has a duty to act. Currently, Thomas is still under investigation by the Arizona State Bar for complaints arising from the donnybrooks he and his disgraced ex-special prosecutor Dennis Wilenchik instigated against Maricopa County Superior Court judges last year. Bisbee's continued imprisonment is another black mark against Thomas. Both of his possible Democratic rivals -- Gerald Richard and Tim Nelson -- should start comparing Thomas to Mike Nifong, the disbarred, North Carolina district attorney who bungled the infamous Duke University lacrosse case. That is, unless Thomas grows a conscience and finds a way to free Courtney Bisbee.
I won't hold air in my lungs waiting for Thomas to take responsibility for this nightmare. Prosecutors are notoriously loath to admit mistakes. But all the rest of those who put Bisbee away must seek a reexamination of the case, including Judge Granville. If there's any possibility that an innocent woman went to prison on his watch, how could he possibly sleep the sleep of the just?