It was the kind of smoking gun that a prosecutor might drool over. But it was in the hands of the defense.
Two girls said they were sexually molested by Robert Contreras on separate occasions last year – one in August and one in September. Each said she was molested on a couch in his Haysville home after watching the R-rated movie “Magic Mike.”
Contreras was arrested, jailed on $500,000 bond and faced a potential life prison sentence under Jessica’s Law as he prepared to stand trial on June 10. His lawyer, Sarah Swain of Lawrence, said if there was a smoking gun in the case, it was the movie.
“A simple Google search will show that it wasn’t released on DVD until Oct. 23, 2012,” she said.
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Even without the movie, Swain said she was able to build a solid alibi defense that she was sure would convince a jury of her client’s innocence. She said she typically keeps her defense strategy a secret before trial but took a chance by meeting with prosecutors on Thursday and laying out the evidence that she and her investigator had uncovered.
“When your client’s life is on the line, as it is in these Jessica Law cases, you have to make difficult decisions,” she said.
District Attorney Marc Bennett later issued a prepared statement about the case.
“Like all cases, the office of the district attorney has a continuing obligation to review and investigate cases even after charges are filed,” he said. “Information recently came to light in this matter that required the dismissal in this case without prejudice.”
The “without prejudice” means that the case could be retried, but Swain thinks that is unlikely. She said the case against Contreras was based entirely on the statements of two girls, ages 13 and 16.
“The Haysville Police Department completely dropped the ball,” she said. “They never went to the crime scene. They executed no search warrants. They collected no physical evidence from inside the house. They didn’t run a black light over the couch to see if there were bodily fluids there.”
She said it’s not the first time she’s seen a criminal case filed based solely on the statement of a crime victim.
“It’s far more common than you would believe,” she said.
Haysville Police Chief Jeff Whitfield defended his officers’ actions.
“We conducted this investigation as we would any other sex crime of this nature,” he said. “The case was presented to the DA, and they agreed with us that there was probable cause to file charges.”
Whitfield noted that a judge who heard evidence at Contreras’ preliminary hearing also agreed there was probable cause to bind Contreras over for trial.
Bennett, when asked if the statement of a crime victim can result in criminal charges, said in an e-mail: “Charging decisions are not made using a mathematical equation. Consistent with national prosecution standards, prosecutors are to file charges that are consistent with the interests of justice. A multitude of factors are relevant to this determination including, but not limited to, the strength of the evidence, the nature of the offense, the relative culpability of the defendant, the age and relative vulnerability of the victim or victims, the recommendations of law enforcement, aggravating and mitigating circumstances, and the probability of conviction."
Contreras, 45, has no criminal record and said he was never in a police station before he got a call from an officer on Nov. 21.
“They called and said, ‘Can you come down for questioning?’ ” he said. “I had no idea what it was. I thought maybe it was a ticket I had in the past.”
When he got to the station, he said, a detective asked if he knew the girls – they are relatives by marriage – and if he remembered what he was doing on the days the alleged crimes occurred.
“I was just in shock,” he said. “I finally said, ‘I guess I need a lawyer.’ He said, ‘All right, you’re under arrest.’ ”
Shannon Contreras, who had accompanied her husband to the station, said she remembers a woman giving her husband’s belongings to her.
“She gave me his glasses, his watch and a phone number and said, ‘This is where we’re taking him.’ ”
Contreras spent the next seven months in Pod 19 at the Sedgwick County Jail – the pod where sex offenders are held. He said he and many of the other inmates there were facing life in prison because of Jessica’s Law.
“I was looking at the same time Dennis Rader was looking at, and I didn’t go around murdering people,” he said. “To put it on par with murder is crazy, I think.”
Under Jessica’s Law, sexually abusing a child under 14 carries a sentence of life in prison without parole for at least 25 years.
As Contreras sat in jail, Swain and an investigator in her office set out to refute the girls’ statements. The first girl said she was abused on one of two weekends in August, Swain said. The Contreras family was in Tulsa on one of those weekends, Swain said, and spent a large portion of the other at the Kansas State Fair.
Swain said the other girl claimed she was molested on her birthday, and the girl said Contreras used a credit card to make several purchases that day. A check of the credit card records showed the card wasn’t used on the day in question.
Although the initial investigation focused on when the movie "Magic Mike" was released on DVD, that changed after the girls testified at the preliminary hearing that they watched the movie as it was streamed on Netflix. Netflix, it turned out, has never offered the movie to customers of its streaming service.
The Contrerases said they aren’t sure why the girls made up their stories.
“At this point it doesn’t matter why they lied about it,” Swain said. “All we know is they lied about it, and we proved they lied about it.”
Contreras, an electrician by trade, became a stay-at-home father 11/2 years ago after he and his wife adopted a special-needs child who has epilepsy and a form of cerebral palsy that requires constant supervision. He said his wife’s insurance pays most of the medical bills.
Contreras said he lost his house after his arrest and his family is living with relatives. He said he’s not sure what he will do next.
“We’ll figure it out,” he said. “I’m out of jail now. We’ll figure it out.”