Judge: Rape suspect’s rights violated - East Valley Tribune: East Valley Local News

Judge: Rape suspect’s rights violated

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Posted: Saturday, January 30, 2010 2:52 pm | Updated: 3:39 am, Sat Oct 8, 2011.

The case involving a Phoenix man accused of streaming live the rape of a passed-out woman on the Internet will be delayed as the state corrects mistakes it made in grand jury proceedings.

Judge Robert Gottsfield’s Jan. 22 ruling was the second time a judge found the state violated the due process rights of Johnathan Hock, 21, in grand jury proceedings.

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Hock was charged with two counts of sexual assault, voyeurism and surreptitious recording, but Gottsfield’s ruling effectively dismisses the charges and forces the state to obtain a new indictment.

“Sometimes mistakes are made,” said Barnett Lotstein, a spokesman for the Maricopa County Attorney’s Office.

He said it is uncommon for judges to send criminal cases back to the grand jury for violations of due process, but when it does happen, the state simply corrects the mistakes in a new grand jury hearing and obtains a new indictment.

The grand jury is a panel of citizens that works in secret hearing testimony to decide whether to indict people for crimes.

According to state motions, Hock raped the woman Feb. 26 during a live feed on Stickam.com, a social networking site where users broadcast themselves. Hock was a regular user of the site and well-known in the social network.

Witnesses called police to report the alleged 30-minute rape and the owner of a Web site that features gossip and news on Internet celebrities, Stickydrama.com, recorded five minutes of the incident.

Stickydrama owner, Chris Stone, sent the video to Phoenix police and investigators have been mining computers and servers to find the session in its entirety.

The state, defense and Gottsfield all agreed the video contained no evidence of sexual assault, which under Arizona law is penetration.

Phoenix police detective Karen Albright testified before the grand jury that there was “sexual activity” on the video and then she accurately described what could be seen.

Hock’s attorney Bruce Blumberg argued in written motions that “sexual activity” is not a legal term and its common understanding “equates to sexual intercourse in one form or another” and her use of the term poisoned the minds of grand jurors.

Gottsfield agreed.

“By way of explanation the statement by the detective that there was sexual activity on the five-minute video was erroneous and rang the bell that could not be un-rung, even though the detective almost immediately described what was on it,” Gottsfield wrote.

Judge Susan Brnovich sent the case back to the grand jury in October when she found that the state violated Hock’s rights when the prosecutor let the panel know he had invoked his right to silence when he turned himself in to police in June.

The state got a second indictment a week later, the one Gottsfield dismissed Jan. 22.

Should the state get another indictment, Hock is scheduled for trial in August.

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