By Felicia Fonseca
PRESCOTT, Ariz. – When a Brazilian man was charged in Arizona with a dozen felony counts alleging sexual misconduct with his minor children, he wasn't eligible for bond under state law.
Those charges were replaced with an indictment last year alleging two counts of continuous sexual abuse, and the father could be free if he posted the following bond: $75 million. Cash only.
The bond, which must be paid in full to secure the defendant's release, is perhaps one of the highest on record in U.S. history. In comparison, Osama bin Laden's bounty was $25 million, and BTK killer Dennis Rader's bond was set at $10 million. Jeffrey Dahmer's bail was $1 million.
"It was almost like an `up yours' deal," said Bruce Griffen, who is defending the man. "It's so out of the ballpark, it's offensive. It's wrong. It's mean spirited."
Prosecutors in Yavapai County wouldn't comment on the case but argued in court documents that the man is a flight risk. If he left to Brazil, there's no guarantee that country would extradite him to the United States to face the charges. His ex-wife further argued that she and the children fear for their safety.
"Not only would it be an endangerment to the children and I, but he will also run," she told a judge during a hearing last month. "He is highly manipulative, secretive and a gifted liar. He easily sways people to feel sorry for him."
The Associated Press typically does not identify victims of sexual abuse and is withholding the names of the parents to protect the privacy of the children.
The allegations of sexual abuse arose after the couple initiated divorce proceedings in 2007, according to court documents. The defense claims the children's mother and a psychotherapist manufactured the charges to keep the father from seeing his three children.
Prosecutors say that the mother was in denial when the therapist first told her that the youngest child possibly was a victim of sexual abuse because of the way he acted. The mother "is NOT the accuser, the state and the children are," prosecutors said in court documents.
Dozens of people in and around Sedona, where the family lived for the past 15 years, have rallied around the defendant and are urging his release from the Yavapai County jail in Camp Verde where he's been held since late 2008.
The trial is scheduled to begin July 7, but a judge has put the case on hold while Griffen takes his concerns over the bail amount to a higher court. In a special action filed this week, Griffen is asking to have the judge disqualified for bias and a reasonable bond set. Griffen says the amount is "unconstitutional and unjustified."
An earlier motion for a change of judge was rejected.
An Associated Press search of news databases over the past 10 years turned up no bond higher than $50 million cash only. In that case, a man was charged with capital murder and tampering with evidence in the death of a Utah sheriff's deputy.
Higher amounts have been set, but defendants have been able to post a portion of them to be freed. For example, a hedge fund manager charged in an insider trading case was able to secure a $100 million bond with $20 million in collateral.
In setting the Brazilian man's bond, Yavapai County Superior Court Judge Tina Ainley said she considered the nature of the charges, the weight of the evidence, that the defendant is not a U.S. citizen, the community support, his financial resources and the view of the victims' representative, who had argued for no bond.
"It's completely out of proportion," said Brazilian deputy consul general Ellen Barros in Los Angeles. "We are afraid it might be some sign of bias or prejudice, and the Brazilian government is concerned. We cannot intervene in a judicial system, that's not what we want. What we want is to know that his rights are being respected and he has due process."
Griffen says his client should be afforded a reasonable bail because he has no criminal history, no history of drug or alcohol abuse and enjoys substantial community support. Nearly 130 people in and around Sedona have signed a petition urging his release. They characterize him as a loving, kind and solicitous father, and the mother as vindictive.
Sedona dentist Kirk Westervelt said he offered to put up his house as collateral, figuring it would satisfy 10 percent of a $1 million bond but did not expect to hear it set at $75 million cash only. He told a judge he would also allow the defendant to stay in the house with his daughters while he awaits trial.
The Brazilian government likely would not extradite the defendant if he reached his native country, said attorney Douglas McNabb, whose firm specializes in international extradition law. Under a treaty signed by the U.S. and Brazilian governments, the charges he faces aren't on a laundry list of extraditable offenses.
"What the state prosecutors and the judge are concerned about is if they let this guy out on bond and he does take off, it's going to be difficult to get him back," McNabb said.
The defendant has said he has no intention of fleeing and voluntarily surrendered his passport. He's rejected plea agreements that offered him a sentence of time served.
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Meanwhile, a website counts the days, hours, minutes and seconds that he's been in jail awaiting trial. Friday marked the 896th day.