Prearranged Calls Can Nab Crucial Evidence

By Sara Reed
The Coloradoan
April 5, 2007

Perhaps, one of the most damning pieces of evidence against recently convicted former priest Timothy Evans was a phone call between him and the victim that was recorded by police.

"I caressed you, I touched you, I loved you," Evans said during the conversation, which was played by prosecutors during his trial last month. "I wanted you to feel loved and I didn't know how else to do it."

During his closing arguments, Andy Gavaldón, who defended Evans at trial, railed against the recording.

The recording should be looked at as a whole and not broken down into individual statements, he argued.

"Alone, the phone call makes (Evans) look guilty," Gavaldón argued. "The purpose (of the call) was not to get the truth; it was an investigative technique. The intent was to catch (Evans) at his most vulnerable time."

The practice of recording phone calls made by alleged victims to their alleged attackers, known as pretext phone calls, has been around for years and is used to gather additional information in all manner of cases, not just sexual assaults, said Loveland Sgt. Rae Bontz.

These types of calls are made by the alleged victims but have been pre-arranged by police and the course of the discussion has been previously determined. No false names or information are used by the alleged victim during the conversation.

The calls are a tool to gather additional information from a suspect using an alleged victim, accomplice or anyone the suspect might have discussed the crime with, Bontz said.

"There are so many things it can be used for," he said. "It's for gathering any type of information."

Fort Collins police and the Larimer County Sheriff's office declined to discuss the practice of using pretext phone calls as investigative tools.

District Attorney Larry Abrahamson said investigators do not have to get permission from prosecutors to conduct such phone calls, but will often confer with them to discuss what other information is needed.

"It's obviously a piece of evidence we can consider," he said. "The police will generally do (a pretext call) if they think they can get extra information or close any gaps."

Abrahamson said these calls can strengthen a case that is being made to a jury, especially if admissions are made.

"Certainly, when you have any evidence where a defendant is explaining their position and it's incriminating, it's obviously going to have a lot of weight with a jury," he said.

These types of calls can cut both ways, said local defense attorney Andrew Bertrand. Bertrand, who has worked as a defense attorney in Fort Collins for better than six years, said he's seen convictions and acquittals in trials that used pretext calls as evidence.

What is important for defense attorneys to point out - and for juries to realize - is that the calls are very carefully scripted and the alleged victims are very carefully coached, he said.

"Juries are smart enough to decide if it was an artificial setting for an artificial response," Bertrand said. "Do I like them? No. Are they contrived? Yes. But it opens the door to say 'Hey, this was staged.' "

Bertrand said, if people stop and think, many will realize that in their daily lives they have artificial conversations. They end up apologizing, not for their actions, but that someone is feeling the way they do.

"There are many calls we take day to day where we respond in a way to please the other party," he said.

Abrahamson said these phone calls are not entrapment because it is not enticing someone to do something they normally wouldn't do.

In addition to Fort Collins police using pretext phone calls in the Tim Evans case, those calls also were used in another case. In 2005, prosecutors used a pretext phone call during the trial of Kevin Tapia, a former Boltz Junior High teacher who was accused of sexually assaulting a former student.

Unlike Evans, Tapia remained vague during the phone call, apologizing to the girl but not being specific as to what he was apologizing for.

"I crossed a line," he said. "It just went too far."

Tapia also was convicted at trial.

In sexual assault cases, the victims aren't forced to participate in pretext phone calls. If they choose to, it can be an empowering experience, said Kandi Moore, executive director of ChildSafe, a nonprofit treatment program for children who have been sexually abused.

"It can give a sense of validation (to the victim) that they were telling the truth and someone (police) believed them," Moore said. "If the alleged offender does make some kind of admission, it is going to be helpful (to the investigation)."

To contribute to an investigation can be an empowering thing for the victim, even if no admission is made, Moore said.

"If (a victim) feels they are able to contribute to the investigation, they are able to take some of their power back," she said.

Moore said it also can be emotionally stressful for a victim to confront their alleged attacker but there are resources available to the victim.

At ChildSafe, therapists are available to help the victim while they are deciding whether to make the call, as well as after the call to help them process what happened.

"All kinds of precautions are taken to make sure the victims are safe," she said.



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