A Tucson man is going to get a second — and improved — chance to escape child molestation charges because the police department threw out a an audio tape of an interview with the victim.
In a unanimous ruling Friday, the Arizona Supreme Court said jurors at the first trial of Robert Glissendorf should have been told that they could presume the fact the interview was unavailable meant there was evidence on tape that would support his claim that he was innocent. The justices said the jurors also were entitled to be told that fact could provide the necessary “reasonable doubt” to acquit him.
Court records show Glissendorf was charged with three counts of child molestation. One involved his niece who testified that when she was between 5 and 7 years old she awoke to find him molesting her. This occurred between 1997 and 1999, but she did not report it until 2001.
That year a Tucson police detective recorded his interview and prepared a written summary.
A caseworker from Child Protective Services also was present and videotaped the interview.
The state initially decided not to prosecute. And some time later — between six and 12 months — the police department, consistent with policies at that time, destroyed the tape.
The CPS recording also was destroyed.
In 2010 there were two similar molestations of another girl and her sister, both alleging Glissendorf touched them. That resulted in a decision to prosecute him in 2012 on both those counts and the earlier one.
His attorney sought to have jurors told they should consider the missing tapes in his favor. A trial judge refused, saying there was no evidence the police had acted in bad faith, and Glissendorf he was convicted of two of the three counts.
Chief Justice Scott Bales, writing for the unanimous court, said that was a legal mistake.
He said court rulings going back five decades make it clear that when potentially exonerating evidence is not preserved, the defendant is entitled to have the jury told it “may draw an adverse inference from the state's action.” Bales said Friday's ruling simply reaffirms that principle.
Friday's decision came over objections from prosecutors who argued that, absent a showing of bad faith by the government in destroying or losing evidence, a defendant should not be able to benefit at trial. But the justices rejected that contention.
“Bad faith can be difficult to prove,” Bales wrote. Anyway, he said, there's a good reason for not using that as the test.
“A consequence for even innocent loss or destruction is necessary both to deter such action and to ensure that defendants do not bear the burden of the state's actions,” he said.
Anyway, Bales said, jurors still have the option of hearing the state's explanation of why the evidence is unavailable. He said it is at the point where they are not persuaded that explanation makes sense that they can presume that the evidence would have helped the defendant.
Bales also said there is reason to believe that the tape might have helped Glissendorf.
His attorney noted several differences between what was on the police report and her trial testimony more than a decade later, including the number of times she claimed Glissendorf touched her.
“Without this tool for impeaching the state's only witness to the incident, Glissendorf was prejudiced,” Bales said. And he said that prejudice was compounded when the girl testified that the written police report — the only thing preserved — was both inaccurate and incomplete.
Bales said the failure to preserve the tape not only entitles Glissendorf to a new trial on the count involving that girl but also on the later charge. He said that is because prosecutors, in making their case, told jurors to consider how similar the acts were.
There was no immediate response from the Pima County Attorney's Office whether it would pursue a new trial.
A spokeswoman for the Pima County Attorney's Office said her agency is reviewing the case and will consult with detectives and the victims before deciding whether to retry Glissendorf.