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Mitchell Decline Letter

Mitchell Decline Letter

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Published by matthendley

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Published by: matthendley on May 30, 2012
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07/10/2013

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 May 29, 2012Bill MontgomeryMaricopa County Attorney301 W. Jefferson Street, Suite 800Phoenix, Arizona 85003Re:
 Mark Wesley Mitchell
 Phoenix PD D.R. #2012-00376059Dear Mr. Montgomery:Several experienced prosecutors in this office and I have reviewed the facts outlined inthe above-referenced investigative reports and researched the criminal statutes applicable in andaround 1983, the approximate year of the reported events. After careful review andconsideration, this office declines to file any criminal charges. As explained below, the factsoutlined in the investigative reports do not meet our charging standard of reasonable belief of probable conviction of the offenses charged. Furthermore, the laws applicable in and around1983, the date of the alleged events, do not support the filing of criminal charges.
Time of the Events / Age of the Parties
Based on the birth dates of the parties, suspect Mark Mitchell (hereinafter “Mitchell”) isapproximately three years and seven months older than the victim. The facts outlined in theinvestigative reports do not provide a clear time frame for when the alleged events took place.While the victim describes the acts with some specificity, she is not able to relate when theseevents took place other than a general statement that they occurred when she was approximately10 years old and that they occurred sometime during 1983. Mitchell would have been 13 or 14years of age at the time of the alleged offenses. In his statements, Mitchell indicates thatwhatever occurred might have occurred even earlier.
 
Yavapai County Attorney
255 East Gurley StreetPrescott, AZ 86301(928) 771-3344 (Criminal)(928) 771-3338 (Civil)Facsimile (928) 771-3110
 
SHEILA POLK
Yavapai County Attorney
 
 Bill Montgomery May 29, 2012Page Two
 
No Reasonable Belief of Probable Conviction
In examining the likelihood of probable conviction on the merits at trial, the State’sobligation is to examine the strength of the admissible evidence. In this matter, the admissibleevidence would consist solely of statements by individuals. There is no physical evidence nor isthere DNA. In weighing the strength of the admissible evidence – the statements - it is importantto examine whether the statements are consistent, whether they are corroborated by otherwitnesses, and whether the statements are impeachable.The victim states that she was fondled by Mitchell on at least six occasions in her homeover a three to four month period when Mitchell was babysitting her and her younger brother.She states that Mitchell told her he would tell her mother if she did not let him do this, and thatshe took this to mean she would “get her ass beat.” She states that several acts occurred whilethey were watching T.V., another act occurred in her bedroom, and that an act of sexual conductoccurred in the shed at Mitchell’s home where he kept his drum set. The victim states the lastincident occurred in her bedroom when Mitchell was babysitting. The victim states he broughther to her bedroom, made her lie on the floor and take her undershorts off. She states he fondledher crotch with his fingers and called her younger brother into the room and wanted him tofondle her as well. The victim states her younger brother said no. The victim states that she toldher mother the next day that Mitchell could not babysit her anymore because he was touching herand had tried to make her younger brother touch her. The victim stated this has been eating at herfor years.While the victim describes the acts with specificity, there is little corroboration for herstatements and several of her statements are contradicted by others. Notably, statements by hermother and brother do not corroborate the victim’s account.The victim’s mother was interviewed and states that Mitchell babysat on one occasiononly. The victim’s mother remembers a conversation with her daughter but does not rememberwhat her daughter told her. The mother recalls that she spoke to the Mitchell family, but cannotremember what was discussed. She does remember it was discussed that Mitchell could nevercome to her home again. At the time of the events or at any time since, the victim’s mother didnot call the police or report the incidents to any authorities. While the investigation in this matterdid not include an interview of the parents of Mitchell, Mitchell’s attorney has provided thisoffice with an affidavit from Mitchell’s father wherein he states that Mitchell’s drum set waskept in his bedroom, not the shed. Mitchell’s father further states he has no memory of anyoneever saying to him that his son Mark had engaged in inappropriate conduct of a sexual nature,that such a conversation never happened, and that he has no recollection of the neighbor everhaving such a conversation with him.The victim’s younger brother was also interviewed by a detective. He recalls thatMitchell was one of several babysitters they had and that Mitchell babysat a few times, but doesnot remember for sure. He states he does not recall anything happening to his sister by Mitchell
 
 Bill Montgomery May 29, 2012Page Three
 nor the incident described by the victim. He does have a vague recollection of getting ready forbed, running around with no clothes on, and “trying to play the game” but provides no furtherdetail.Two recorded confrontations by the victim with Mitchell were accomplished. In eachinstance, the suspect was confronted with statements recounting sexual acts between the two.Mitchell’s statements on these recorded conversations acknowledge some involvement and arevery general, i.e., they were both young, they were exploring, they were experimenting, that hehad never had sex before that age and did not really know what he was doing, they were friendsand played together, that he never meant to hurt her and he was sorry she felt the way she did.Subsequently and through his attorney, Mitchell has denied that he ever sexually orinappropriately touched the victim in any way.In addition to the above inconsistencies, the motive of the victim in reporting would bechallenged. The victim states she was prompted to report to authorities the events occurring in1983 during an unrelated investigation involving sexual abuse of the victim’s minor child. Theinvestigation of the abuse of the minor child began in May of 2011; although she was involvedwith the authorities in the investigation of her minor child from almost the beginning, the victimdid not make her report of the abuse from 1983 until February of 2012, almost ten months afterthe unrelated investigation began, prompting this investigation. While there are explanations forthe delay in reporting, the victim states the abuse by Mr. Mitchell had been eating at her foryears.
Legal Barriers to Prosecution
In addition to the factual issues outlined above, there are significant legal issues that wehave considered. The charging decision in this case is not whether a 39 year-old man should becharged with sexual offenses with a 10 year-old victim. The determination is whether to chargean adult, thirty years later, for sexual acts committed when he was a 13 or 14 year-old juvenilewith a ten year-old victim. In making this determination, the State must apply the criminalstatutes in effect in and around 1983; those statutes raise significant legal obstacles toprosecution. Specifically, the State notes the following:In 1983, the criminal code contained the following provision relating to the
mens rea
of  juvenile offenders:13-501 ImmaturityA person less than fourteen years old at the time of the conduct charged is notcriminally responsible in the absence of clear proof that at the time of committingthe conduct charged the person knew it was wrong.

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