ex-girlfriend reported finding videos on hacked laptop in 2010
case previously dismissed for detective’s "misleading" testimony
prosecutor admits "not best forensics practices" by Benson PD
case files restricted – without court order – for 6+ years
BENSON – Facing a potential term of imprisonment that a Cochise County Superior Court judge noted “amounts in effect to a life sentence,” former Benson firefighter Jesus Ricardo Larriva-Schmidt has waived his right to have twelve jurors hear his case next summer.
Instead, judge Wallace Hoggatt will hear the case as a bench trial and then decide if the Arizona Attorney General’s Office (AGO) proved Larriva-Schmidt guilty of 20 counts of exploitation of a minor.
Hoggatt approved Larriva-Schmidt’s motion for a bench trial during a hearing December 9. The trial will start June 12, 2017 and is expected to last five days. The question that will be before the Court is whether Larriva-Schmidt downloaded or viewed 20 child pornography videos found in 2010 on a computer he once used.
Larriva-Schmidt was indicted on August 3, 2015 by a state grand jury which ordered him held with no bond. He was arrested a week later and spent 50 weeks in the Cochise County jail while defense attorneys Richard Lougee and Ralph Ellinwood argued that he should be out of custody pending trial. On July 25, 2016 Hoggatt ordered Larriva-Schmidt, age 32, released on his own recognizance over the objection of prosecutors. One condition of his release is that he has no unsupervised contact with minor children.
The indictment also included one count of molestation of a childfor an incident that purportedly occurred sometime between March 2014 and February 2015. Court records show the boy made the allegation -and one against his own father- during a time of family turmoil involving a change in custody. The boy recanted all of his allegations in early 2016, something the defense did not learn until April. Judge Hoggatt dismissed the molestation charge on December 9 at the request of prosecutor Jared Kreamer-Hope.
The 20 exploitation charges Larriva-Schmidt is facing are Class 2 felonies which each carry a minimum prison term of 10 years. During the December 9 hearing, judge Hoggatt confirmed that Larriva-Schmidt is aware of the potential punishment and that if he is found guilty any sentence would be served day-for-day, meaning no early release or good behavior credit.
This is the second time Larriva-Schmidt has faced criminal charges in connection to the same videos his former girlfriend Lindsay McCall purportedly discovered on a laptop to which he had access. According to the AGO, McCall bought the laptop in 2009 when the couple lived together in Benson. When the couple split up a few months later, McCall moved to Tucson, leaving Larriva-Schmidt and the laptop in Benson.
In April 2010 McCall retrieved the laptop from Benson, claiming Larriva-Schmidt never paid her for it. In June or July 2010 she had someone “break the password protection” that was keeping her from accessing all of the computer files. At some point -the date is not specified in court records- McCall claimed she discovered several video files of child pornography. She contacted the Tucson Police Department about the videos in September 2010.
The case was referred to the Benson Police Department where the case was assigned to detective Brian Williams. Larriva-Schmidt was indicted a few days later. His attorney at the time, Mark Berardoni, challenged the indictment and argued that detective Williams mischaracterized evidence during his testimony to the grand jury. Judge James Conlogue conducted a hearing into the allegation in January 2012.
Conlogue found that“Officer Williams’ testimony was misleading in two important areas”including incorrectly describing where the video files were stored on the computer and inaccurately describing a statement Larriva-Schmidt made to police.
As a result, Conlogue ordered the case be suspended pending any new finding of probable cause to prosecute. The Cochise County Attorney’s Office declined at that time to present the case again to the grand jury, which led the judge to formally dismiss the charges in March 2012.
New criminal charges, employment termination and complaint
The laptop remained in police custody after Conlogue dismissed the charges. Then in December 2014 the county attorney and Benson PD asked for a review of the case by the office of the attorney general. Nothing in the public records explains what prompted the referral 2-½ years later, but the records show detective Williams was involved in making the presentation.
By the spring of 2015, rumors were swirling around the City of Benson that Larriva-Schimdt was under investigation again and he was terminated from his position with the Benson Fire Department. He filed a formal grievance with the National Labor Relations Board in May 2015 but the NLRB’s regional director informed Larriva-Schmidt that the agency could not review the complaint because municipal employers are “exempt from the Board’s jurisdiction.”
Defense attorney Lougee was quoted in an August 2015 news report questioning the timing of the indictment and Larriva-Schmidt’s labor complaint. In response, Kreamer-Hope noted “there is no relationship between Defendant’s termination and the State’s investigation” and that the issue does not “make it more or less probable that Defendant is guilty” of the charges.
Questions about detective Williams’ handling of the computer and whether his examination altered any of the files have been raised by Larriva-Schmidt. It is an issue prosecutor Kreamer-Hope acknowledged in an October 2015 court filing, in which he noted “Williams’s access is not best forensic practices” but denied the detective’s actions compromised the computer data.
Both sides have conferred with computer forensics specialists to identify who downloaded the video files to the laptop and whether anyone viewed the files. In July judge Hoggatt approved a defense request for payment to a court-appointed computer expert. Meanwhile, the AGO is working with the U.S. Immigration & Customs Enforcement’s child exploitation unit that specializes in computer and internet pornography cases. So far the experts’ findings have been contradictory.
January hearing to address unresolved pre-trial requests, set deadlines
On January 19 the attorneys will participate in a status conference with judge Hoggatt. At that time he will address outstanding motions filed in the case and set deadlines in preparation of the June bench trial.
According to Shawn B. Hamp, an Arizona defense attorney who is not involved in the Larriva-Schmidt case, a bench trial “is almost identical” to a jury trial, with “opening statements, a presentation of evidence by the prosecutor and then the defense, rebuttal testimony, and then closing arguments.” The main difference, he explains, is a judge -not twelve jurors- determines whether the prosecution has proven guilt beyond reasonable doubt.
Hamp also notes that while most criminal cases are decided by a jury trial, it may “be advisable to elect to have a bench trial” particularly in cases that “are highly technical or purely ‘legal’ in nature.”
Larriva-Schmidt is the estranged husband of Crystal Lynn (Steege) Schmidt, incoming councilmember for the City of Benson. They are in the process of having the marriage dissolved and she has custody of their son.
Contact reporter Terri Jo Neff at 520-508-3660 and email@example.com
EDITOR’S NOTE: The court case files in this matter – even the case numbers, or their existence – has been hidden from public view for 6+ years by Cochise County Clerk of Superior Court staff who are unable to cite where in the law they obtain the authority to restrict public access to adult criminal case files without specific court order.
Such procedures are the subject of an upcoming article in the Cochise County Record.