Sex offenders refuse plea bargains
By Richard Dean Prudenti
The Morning News
August 29, 2009
BENTONVILLE — At any moment a victim of child sexual abuse could fall apart.
With family in the room, board games on a table and daytime television in the background, a teenager sat quietly with her cell phone, texting her friends, recalled Kim Coble, victim witness coordinator for the Benton County Prosecuting Attorney’s Office.
In an instant, the girl’s shoulders dropped. Her head slumped. Her face contorted.
“I could tell she was going to cry,” Coble said.
The girl was waiting to testify and face her abuser at a jury trial.
Coble relayed this story as she explained why she believes many recent trials in Benton County have involved sexual crimes against children when hundreds of cases involving offenses such as drug possession, theft and burglary avoid trials in favor of plea bargains.
“Either (suspects) deny to themselves that there is a problem, or they are banking on the idea that the victim won’t testify,” Coble said.
The defendant has the right to hear from the accuser. In the last year, nearly 60 percent of cases tried by juries in Benton County were sex crimes involving children. All the trials regarding child rape, sexual assault or taking videos in a sexually explicit manner have taken place since mid-March.
Coble said she acts quickly when she notices the signs a victim is “falling apart.”
“You can just see them transform. They crawl inside themselves,” Coble said.
The girl shared with Coble her heartache while seated on a bench outside the office, a few feet away from the courtroom.
The teenager told her: “I don’t want to see him. I’m scared to see him.”
Attorneys in child sex crime cases say denial, pride and hope influence a defendant’s decision to go to trial, despite the likelihood a jury will convict and impose greater punishment than the plea offer.
Defendants deny their wrongdoings because crimes against children are deemed more heinous, said Stuart Cearley, chief deputy prosecutor.
Other than murder, crimes against children are the most serious under the law, so courts settle child abuse cases as quickly as possible. That’s mandated by the Arkansas Supreme Court, Cearley said.
“These cases are always the first on the docket,” he said.
Prosecutors work closely with law enforcement agencies and child advocacy groups to gather enough evidence to prove sexual abuse crimes. In most cases they offer a compromise: a prison term less than the maximum in exchange for a defendant’s guilty plea.
“Are we getting justice? That’s the bottom line. Last year, we got the results we wanted without having a lot of trials,” said Van Stone, Benton County prosecuting attorney.
Three of the seven cases tried by Benton County juries in the 12-month period beginning August 2007 were related to child sexual abuse.
Some defendants would rather go to prison for a long time than admit they molested a child, even after a jury convicts, Stone said.
“The stigma is so sharp, as it should be,” he said.
Some defendants reject plea offers, either because they can’t believe they committed crimes or they won’t admit wrongdoing before family members and the public, despite DNA evidence, Cearley said.
“Unlike other crimes, these are not witnessed by other people,” he said. Defendants underestimate the power of evidence and often bank on what they perceive as a “he said/she said” argument.
Hope Against Hope
Denial takes more than one form.
In April, Terry Wayne Pack, 37, of Gravette was convicted of rape and sexual assault of a teenager. Pack said he was unaware what he did was legally rape.
Pack gave a 14-year-old girl alcohol and then digitally penetrated her.
“I did a bad thing,” Pack told the jury before the sentencing phase of his trial. “This has ruined my life. ... I didn’t realize it was as bad as it was.”
His attorney, Scott McElveen of the Public Defenders Office, said the only child sex abuse cases he’d advise taking to trial are those in which a true “he said/she said” argument exists.
Otherwise, they’re fighting a losing battle for acquittal or a more lenient sentence than the plea offer because the evidence is “overwhelming.” Of the 10 trials for child sexual abuse crimes in Benton County in the last two years, all ended in conviction with a partial acquittal in one case. Carl Douglas Colburn, 36, was found guilty of a second count of sexual assault and not guilty of one count of rape and a second count of sexual assault. He received a six-year prison sentence.
McElveen typically advises defendants to take plea bargains because juries likely will convict and recommend substantially higher sentences than plea offers, he said.
The state offered his client Robert William Fischer of Farmington a 30-year prison sentence in exchange for a plea of guilty to six counts of possessing and viewing videos of sexually explicit conduct involving a child, said Deputy Prosecutor Stephanie McLemore.
“We did further negotiations from there and couldn’t reach a plea agreement, so then it went to trial,” McLemore said.
Now Fischer, 38, is in prison serving a 60-year sentence. He created six cell phone video clips of a 9-year-old girl as she showered at her home in Bentonville.
Fischer was on probation as a level 3 sex offender at the time of his arrest in this case. He was considered “high risk” because of his previous conviction of felony sexual indecency with a 9-year-old girl in Washington County.
The administrator of the Sex Offender Screening and Risk Assessment Program at the Department of Correction said convicted felons loathe the thought of undergoing a treatment program.
“They may say, ‘I don’t want to do that, so I want to take my chances of being acquitted,’” said Sheri Flynn, the administrator. Flynn has been in the field for 25 years and previously investigated cases with the state Department of Human Services.
Flynn believes sex offenders know they committed crimes, but “they may think that they can get by with it and that people are just not going to believe” the victim, she said.
“Back 25 years ago, you didn’t hear a lot about sexual abuse,” Flynn added, “but through public awareness and media coverage and school education programs, more knowledge is available to children and more people are willing to believe them.”
Many of the criminals Flynn works with are comfortable with who they are, but know what to say so others think they aren’t, she said.
“There are a lot of reasons for them to deny it because if they go around admitting it, then people will take steps to deny them access to children,” Flynn said.
McElveen has asked clients why they prefer going to trial despite compelling evidence.
“They can’t give you a good answer. ... On some deep level they think they will be able to wow a jury,” he said.
Some defendants imagine jurors will put themselves in their shoes and grant mercy, McElveen said.
“It’s hard for an individual to think that what he did was such a ‘bad thing’ when the law says it’s a very bad thing,” McElveen said.
Every sex offender convicted by a Benton County jury in the last 12 months has appealed and requests for interviews were refused.
Of the three sex offenders convicted in 2007, George Lynn Perez declined an interview but Dwayne Doyle Frye and Jose Elias Arevalo answered questions while maintaining their innocence.
Perez’s case was unique because he pleaded guilty but did not accept the prosecutor’s recommended life imprisonment, the maximum punishment under the law. Perez was sentanced by a jury.
“So either you accept a life sentence or go to trial,” said Bruce Bennett, a private attorney who represented Perez in the August 2007 trial.
Perez received two life sentences instead for kidnapping and raping a 10-year-old girl, plus various other sentences for other crimes. Earlier that year, Perez saw a girl who was walking to catch a bus near Rogers’ Eastside Elementary School. He abducted the girl and molested her behind the building,
according to the probable cause affidavit.
Bennett believes that some clients simply don’t believe they committed a crime.
“If in his mind — or in reality — he simply didn’t do it, it doesn’t matter to him what they offer” in a plea bargain, Bennett said.
Frye’s and Arevalo’s convictions were upheld by the appellate court.
Frye digitally and orally raped a 9-year-old girl as she slept on his couch, according to the girl’s October 2007 testimony. The Maysville man, now 43, says he’s not guilty.
“They lied on me,” Frye said, speaking of the child and her mother who made the accusation. Frye answered questions by phone from the Varner Unit of the Department of Correction.
“I wouldn’t get up on the stand and say I did something I did not do,” he said.
That decision cost him life in prison.
He rejected the prosecutors’ original offer of 20 years in prison when state law allowed a range of 10 to 40 years, or life, in prison for rape of children. State law changed midway during the case and required a 25-year minimum for rape cases involving children younger than 14. Frye rejected that minimum sentence as well. Then prosecutors pursued a life sentence, said Tony Pirani, public defender.
Frye doesn’t regret going to trial.
“If I had to do it over again, I would take it right back to a jury,” he said. “I did seven years in prison for something I did do, and now I have to do time for something I didn’t do.”
Frye’s criminal history includes felony battery and aggravated assault from a 1999 incident when he ran over and permanently disabled a police officer in Johnson County.
Arevalo said his attorney, Janette McKinney, advised him to take a plea bargain of 25 years in prison plus a 10-year suspended sentence. If he didn’t, he said he was told he would likely receive more time in jail, up to 40 years or a life sentence for raping a 13-year-old girl who became pregnant.
He was convicted of rape in July 2008 and received 13 years in prison.
“I believe he got a fair trial and got a good outcome. He might not agree with me on that,” McKinney said.
“No amount of time is acceptable,” said the Spanish-speaking Arevalo, now 38. “It’s all the same. ... I feel I don’t deserve what I got.”
Another inmate, Mario Arevalos, 43, served as Arevalo’s interpreter.
Some prisoners are in denial of their wrongdoing, Arevalo said. Some take full responsibility, and some are not guilty. Arevalo reiterated he’s not guilty.
He declined to address the fact he testified during the trial he had “consensual” sex with the girl. He talked of a “mistake” or “lie” he made in court.
Arevalo plans to continue the appeal process to a higher court, but nothing yet has been filed, he said.
“I want the truth to come out, and I want to be vindicated,” he said.
Benton County Convicts
In the last two years, 10 people have been convicted for sexual crimes against children.
January 2009 to present
• Wendell Lee Strickland, 45, 18 years for rape
• Robert William Fischer, 38, 60 years for possessing sexually explicit material involving a child
• Danny Ray Henington, 36, 36 years for rape
• Terry Wayne Pack, 37, 20 years for rape and five years for sexual assault
• Carl Douglas Colburn, 36, six years for sexual assault (acquitted on charges of rape and a second count of sexual assault)
• James Arley Holliday, 67, 40 years for rape and 20 years for sexual assault
• Monty Lee Stidam, 19, 40 years for rape and 20 years for sexual assault
• Jose Elias Arevalo, 38, 13 years for rape
August 2007 to end of year
• Doyle Dwayne Frye, 43, life sentence for one count of rape
• George Lynn Perez, 32, two life sentences for rape and kidnapping; 10 years each for sexual abuse and residential burglary, 6 years each for sexual indecency with a child and financial identity fraud, and 1 year for misdemeanor indecent exposure
Source: Benton County Circuit Clerk
The state assigns registered sex offenders a risk level based on results of a required assessment by the Sex Offender Screening and Risk Assessment Program coordinated by the Arkansas Department of Correction.
• Level 1: low risk
• Level 2: moderate risk
• Level 3: high risk
• Level 4: sexually violent predator
Arkansas law mandates information on registered sex offenders who pose the highest level of risk to the public (levels 3-4), must be available on the Arkansas state Web site.