Trial Woes Plague Child Abuse Case
By James Gilbert
Yuma Sun [Arizona]
January 28, 2006
Critical testimony and newly discovered facts in the case of Donald David Frei, a Yuma man sentenced to prison for child abuse, could overturn his conviction, said his attorney.
The 26-page petition for post conviction relief, a document asking Yuma County Superior Court to dismiss the case against Frei, alleges inappropriate relationships among some of the key figures involved in the case, among them accusations that a detective investigating the case and the mother of the victim were romantically involved.
The document, filed by Frei's attorney, Dale Wren, also asserts that the trial prosecutor served on the pastoral council of a Yuma Catholic church that, just the year before, had to pay a large monetary settlement to Frei to resolve a sexual abuse claim.
Additionally, the petition calls into question some of the circumstances in the case, such as the co-director of the hospital lab that performed drug tests on the victim was not called to testify and no evidence was presented about the victim's prior medical condition of suffering from low blood sugar levels.
Frei, 44, of Yuma, was sentenced to 4. years in prison in October 2003 by Yuma County Superior Court Judge Andrew Gould after an eight-person jury found Frei guilty of child abuse. Yuma County prosecutors and the Yuma County Sheriff's Office accused Frei of telling his then 7-year-old daughter to swallow a Clonazapam pill, a prescription sleeping medication.
The accusations raised by Wren in the post conviction relief notice are only allegations, and still must be proved in an evidentiary hearing held in open court before a judge.
Wren filed the petition after the Arizona Appeals Court had already overturned Frei's conviction in February 2005 and sent the case back to Superior Court for retrial.
Before that could happen, the Arizona Attorney General's Office filed a petition for review with the state's Supreme Court to reverse the appellate court's decision.
But earlier this month the Arizona Supreme Court decided not to hear that petition, and as a result, Frei's conviction remains overturned, though he remains in jail pending the county attorney's decision to hold another trial.
County Attorney Jon Smith said his office is "in the process of reviewing the status of the case" to determine whether to recharge Frei, so he said he could not comment on Wren's petition.
Wren, who recently took over Frei's case, also declined to comment on the relief notice he filed on Dec. 13.
The Sun made a request with the Arizona Department of Corrections to interview Frei, who is still incarcerated at the Winslow state penitentiary, by telephone about the status of his case, but he too declined.
Wren argues in the petition the court did not allow the defense, during Frei's June 2003 trial, to introduce evidence that investigator Sheriff's Detective Ryland Kroutch and the mother of Frei's daughter, were involved in a relationship while that detective was involved in the investigation into the alleged offenses against Frei.
"The state sought to preclude all evidence that a case agent and supervising detective was engaged in a nonplutonic and ongoing relationship with the alleged victim and her mother," according to the post conviction relief notice.
Kroutch and the mother of the victim — and her daughter — also lived together while Frei was on trial and, since Frei's conviction, the couple have married, the document stated. Frei was never married to the mother of his daughter, but did have visitation rights.
Kroutch and the mother of the victim were contacted by The Sun, but both declined to comment.
According to the petition, Frei's previous attorney was not allowed introduce any statements regarding county prosecutor Conrad Mallek's membership on the St. Francis Pastoral Council and Frei's settlement in the sexual abuse civil case.
Frei, who had been an altar boy in the mid-1970s at that same church, was awarded a $1.7 million settlement for having endured sexual abuse by a priest assigned to that church, according to The Sun archives. Frei was awarded the settlement one year before he was put on trial, according to archives.
Mallek was not allowed by Smith to respond to Wren's petition.
Another point Wren raises in the petition is that the physician in charge of the laboratory at Yuma Regional Medical Center — which performed drug tests on the daughter — was never called to the stand to testify during Frei's original trial by Frei's previous defense.
Had Dr. Robert Mallon, who also wrote the lab report concerning the results of the drug tests, testified, he would have stated that test results showed that no prescription drugs were found in the daughter's system, according to Wren's petition.
"I would just like to reinforce my opinion regarding the negative drug screen," Mallon stated during a deposition conducted by Wren, which was included in the post conviction relief notice. "If benzodiazepine is administered it takes approximately 30 to 40 hours for the body to clear roughly half of the metabolites from the drug."
Wren wrote in the petition that Mallon's testimony is necessary to refute the testimony of prosecution witness Dr. Joan Kelchner, who is not a toxicologist. She had testified that she believed the drug could have been in the victim's system, but not in a high enough concentration to be detected.
"The witness lacked the foundation to render this opinion," Wren writes in the petition. "The defense was unable to secure independent experts or the doctor from the laboratory to refute the statements."
Had Mallon testified, according to Wren's petition, he would have stated under oath that the results of the urinalysis tests were absolute — with a reasonable degree of medical certainty — that the drug for which the test was performed for was not present.
"Dr. Mallon will testify that (victim) exhibited symptoms of low blood sugar and after being given an IV responded as any person with low blood sugar would," Wren writes in the petition.
The symptoms of low blood sugar — drowsiness — are similar to the effects of taking a sleeping pill such as the one Frei was alleged to have given his daughter, the petition states.
Mallon declined to comment to The Sun.
Furthermore, Wren alleges the state surprised Frei's prior defense attorney on the eve of the trial with Kelchner's testimony — which it had a year to disclose — thus making it difficult for the defense to secure independent experts or the lab's doctor to refute the statements.
The court during Frei's 10-day trial also would not allow testimony from another detective who had "severe criticisms" of Kroutch's handling of the investigation, according to the petition.
"(He) will testify the crime scene photos were staged and that the lead investigator had an agenda from the beginning," Wren writes in the petition.
James Gilbert can be reached at
email@example.com or 539-6854.
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