In the time following the January 1997 illegal abduction of Zenith from Iceland, Donald and Connie Hanes made numerous well-documented attempts to surrender to the Arizona authorities through the US embassy and directly to the prosecutor in Arizona. The prosecutor flatly refused to even discuss the matter with the Hanes's attorney.
The US Embassy had illegally seized the Hanes's passports. Without those documents Donald and Connie could not work. The Hanes's submitted proper registered request to the Embassy and faxed the pertinent US law to them. It was clear that the Embassy was in direct violation of US law. The Embassy response was "so sue US". The Embassy would discuss the matter no further than this.
August 1997 The Hanes matter has gone all the way to the Icelandic Supreme Court. (See the full text of the Icelandic Supreme Court Ruling). The final result was the issuing of Icelandic non-national passports to the Hanes couple (refugee passports, rarely ever issued in Iceland - they were numbered 230 & 231).
With the Hanes couple now safe in Iceland, the US Justice Department declared that they "had no further interest in the matter". Still Donald and Connie persisted in trying to find a way to right the situation. In order to travel directly to Arizona it was necessary to get to another country (since there were no direct flights from Iceland to Arizona and a landing in any other US city would envolve an out of state arrest and interstate extradition). The Icelandic non-national passports required a visa to go to another country and were not valid to the USA.
During 1998 Donald made multiple attempts/appeals to the UK to satisfy the conditions to obtain a visa (a visa is required with the Icelandic non-national passport) that would allow him to pass through London and there get a "direct" flight to Phoenix. The British Embassy did many months of processing and consideration and finally denied issuing the required visa.
By the spring of 1999 Donald had finally obtained a visa to Holland where he could get on a "direct" flight to Phoenix. Upon purchasing the tickets he informed the US Embassy of his intent to surrender and faxed his itinerary to them. He was informed by the Embassy that both the Justice Department and the State Department had been informed of his plans. He was also informed that since his flight leaving Iceland was not going to the USA that they could not provide the entry documents that would be necessary to fly to the USA. These would have to be provided by the US Embassy in Holland.
On arrival in Amsterdam Donald went to the US Embassy and related the entire plan to them with the accompanying documents and schedule. They commenced finding out what they could about the situation and again contacted the Justice Department and the State department to find out what to do. In the end they said that they could not help him with entry documents but that Donald should just go to the airport with his ticket and try to get on the plane.
At the Amsterdam airport the officials did not know what to do. Confused by the fact that, though Donald was a US citizen, his Icelandic passport said it was not valid for travel to the US. Fortunately Donald had also brought a copy of his US birth certificate and with that the flight supervisor threw up his hands and said "just put him on the plane". Ironically the "direct" flight to Phoenix stopped in London for about 3 hours. No visa required this time.
Upon landing in Phoenix early on a Friday afternoon, Mr. Hanes anticipated there would be confusion and delays going through immigration and the authorities would be waiting to pick him up. Out of consideration for other passengers, Donald waited to the end of the line so he would not delay anyone else. Immigration, of course, had never seen an Icelandic non-national passport and did not know how to handle the situation. When Donald produced his US birth certificate he was cleared.
There was no arrest waiting anywhere at the Phoenix airport. Donald then contacted a local friend for a ride since he was not expecting to need one. The friend was not available to come right away so Donald was at the airport for several hours. The FBI later told the press that Mr. Hanes "had eluded them at the airport".
Mr. Hanes then contacted Tom Hoidal, his attorney, for advise on how to proceed. Mr. Hoidal said he would contact the prosecutor and advised Donald to wait for word from him. There was no word on Monday and by Tuesday noon Donald went out to a store for lunch. There the FBI ambushed and arrested Mr. Hanes.
"Hands in the air!" an FBI agent screamed at him and instantly Donald held up his hands. "Get out of the car!" he yelled. As Donald reached down to open the car door the agent viciously screamed "HANDS IN THE AIR!!!" Donald snapped his hands back up. "Get out of the car!" was yelled again. This time Donald remained motionless with his hands in the air. After a minute or so the agent came over and opened the door. America's finest! These agents were brash and abusive. They were in plain clothes and never identified themselves. They never formally arrested Donald nor read him rights of any kind, only held him at gunpoint until other law enforcement arrived. They could just as easily have been carjackers.
Taken first to Scottsdale jail and then to Maricopa County intake, Donald was shuffled from cell to cell commonly designed to hold 9-15 people but now holding in excess of 90. That evening the press was interested in speaking to Donald and he was brought to a room and asked to sign a press release. Donald wanted very much to talk to the press but the release warned that it should not be done without speaking with an attorney. Donald asked if he could call his attorney, Tom Hoidal. This request was granted (surprisingly). Tom Hoidal was out but his secretary pleaded and begged Donald not to speak to the press not to do it before talking with Tom, saying that Tom would return in no more than 15 minutes. Don asked the guard if he could call again in 15 minutes. The guard said yes (a lie) and Donald was returned to holding and was not allowed to speak with the press.
Sometime late that night Donald was taken before a judge to have bail set. The officer in charge of the case was there and when asked said that it had been quite a difficult case and asked for a bail of $80,000. Then the judge asked Donald if he had anything to say. Whereupon Donald proceeded to recount the fact that he came to Arizona for the precise reason of turning himself in, with the entire story of the contacts with the embassies, the Justice Department, the State Department, right down to his attorney's contact with the prosecutor. The Judge responded "Well we only have your word for that, bail is set at $80,000".
One must wonder why the Judge asked Donald to speak at all, since whatever he said would only be his "word" and all proof of his claims had already been taken from him. All the claims were easily verifiable by phone but no action was taken on that for a month.
At a bail hearing a month later the Judge Aceto asked that a call be made to the prosecutor's office to verify Don's story about calling them to arrange a surrender. When the contact was verified, bail was reduced and Donald was released, after being held in the deplorable, dangerous conditions for a month waiting for the court to make one phone call.
Mr. Levenson (public defender assigned to the case) advised Donald that there was not much chance of fighting the case in Arizona court. The only issue they would decide was if Kelly had legal custody and if Donald had actually taken Zenith somewhere outside the agreed visiting hours. Kelly had a Utah court document establishing custody and Mr. Levenson maintained that the court simply would not hear any evidence that challenged the legality of the Utah decision because that was a matter for the Utah courts. He said the best thing to do was plead guilty and negotiate a lenient sentence based on the surrender and the conditions of the adoption case.
So that is what was done. A guilty plea to "Attempted custodial interference" class 4 (down from class 3 for custodial interference). A further date was set for sentencing.
During the intervening time the prosecution introduced a $20,000 cap to damages. Mr. Levenson asked Donald about possible claims for damages. Donald told him that there were none they could prove. Mr. Levenson said that the prosecution was getting the judge Aceto ready for a large claim, but that there would be a hearing about it unless something could be agreed upon at the sentencing.
Donald asked about the advisability of making a statement before sentencing. Mr. Levenson said he knew Judge Aceto very well. He said Aceto studies the cases outside of court and comes in with his mind made up. Donald could say absolutely anything in a statement and it would make no difference at all.
At the sentencing Donald read a two page statement which contained information about Mr. Hanes surrender of which the judge was not yet aware. The judge then highly complemented Donald for his efforts in making himself available to the court and proceeded to give the maximum length probation allowed by the statute.
The prosecution started by claiming some $24,000 in damages. Including $4,000 for Kelly's plane fare to Iceland and Kelly's therapist's bills back to 1992. During the sentencing Donald presented to the Judge Aceto that he knew for certain that Kelly's plane fare to Iceland was paid for by the Maury Povich Show. Kelly then withdrew that $4000.00 claim. First attempt at fraud defeated.
Judge Aceto then offered that, since $20,000 (damage cap originally introduced by prosecution) was asked and Donald claimed that none was owed, that $10,000 would be a fair compromise. Donald found it ridiculous since there was no grounds for an award of ANY amount. Donald offered $2,000, it was rejected.
Next it was put forward that since Donald had taken Zenith in October of 1995 he could hardly be responsible for bills incurred in 1992. The claim would have to be further reduced. More fraud foiled. With no agreement reached, a date for a restitution hearing was set.
Here some background should be given. Kelly had a childhood friend named Mickey Bubbico. Mickey is the thug that Kelly had assault Connie on the Mesa temple grounds. (See an account of the beating). His brother-in-law is a social worker named Tony Rubins. This is Kelly's "therapist". Their relationship is more centered on drugs however. Kelly sells marijuana and Tony is one of her clients. Back when the Utah court ordered a home study done of Kelly's home there was a very favorable report given to the court. While reporting that Kelly was on welfare, public housing, and food stamps, the report neglected to include that she was driving a brand new car. This "home study" was done for the court by a woman who had never done a home study before. How was she found? Tony Rubins.
Immediately after the guilty plea court session Mr. Levenson left the public defenders office and so Donald was assigned one Ray Vaca. On a phone call with Donald, Mr. Vaca said it was his plan to have Tony Rubins bring both his tax returns for those years and the records of his appointments to show the exact number of sessions with their dates and times. This seemed a sound tactic to show that Rubins had never in fact billed Kelly for any of their supposed sessions. But in further e-mail exchanges with Mr. Vaca it became painfully clear that he had almost no grasp whatsoever of grammar, sentence structure, or spelling and was very close to being illiterate.
It turned out that Mr. Vaca knew nothing of court procedure for a restitution hearing either. All requests for documentation were summarily ignored. Kelly, whose fraudulent claims had been defeated in the previous hearing, did not even attend and so could not be cross-examined on Tony Rubins claims. The hearing proceeded with Tony Rubin claiming that $12,920 worth of bills happened between October of 1995 and the time of the hearing now 3 � years later.
After the prosecution introduced the witness and his claim it was time for the defense council to cross-examine. Vaca asked a couple of things I had given him in advance. He asked about Rubins' close association with Kelly and the conflict of ethics that produced. Rubin said that he did not see Kelly socially and didn't think he was in conflict with the ethics of his profession. He asked if Rubins had declared the uncollected bills as income on his taxes for the years in question. Rubins said that his accountant declared collected bills only.
Vaca could not come up with any questions on his own so Judge Aceto then proceeded to help him by saying "Don't you want to ask..." And then Vaca would ask. Then Aceto would say "don't you want to ask...". But this very quickly became tiresome and Aceto took over the questioning.
Aceto asked Rubin what rate he was billing at. $85 per hour was the answer (it had been calculated with the number of visits to compute the claimed amount). The judge asked if Rubin was just estimating or if Rubin had counted them. Rubin had, of course, counted them. Judge Aceto then asked that since he was a social worker/therapist working with the county if he didn't have a sliding scale that he charged based on a clients ability to pay. Rubin's said yes, but Kelly had specifically asked him to charge his full rate.
Aceto then asked how many payments Kelly had made over the seven years she had been seeing him. A bit of hesitation entered here when he answered that Kelly had paid him in haircuts at $10 per haircut (here Rubin must have seen how ridiculous it was to be seeing someone for seven years who NEVER paid). The judge then asked how many haircuts he had received from October of 1995 until the present and he responded "188". The judge then said that the claim should be reduced by the amount of $1,880 (to $11,040).
Then the prosecutor stood up and said that Kelly had instructed him to collect the $1,880 that was owed her. The Judge asked "Did she REALLY instruct you to do that or did you just improvise that yourself?" The prosecutor then relented and sat back down while the judge and the prosecutor had a brief chuckle of over the incident. Even the prosecutor attempted fraud in this case, and when it was shown for what it was, it was laughed off as a joke.
Aceto asked Rubin if receiving barter for his services was a violation of his professional ethics (he knew it was because Donald had provided a copy of Rubin's professional ethics code before the hearing). Rubin said that it was up to him to oversee his own actions and that he "had no problem with ethics" (of this no one has any doubt).
The judge then asked Vaca if he had anymore questions. Vaca said no. Donald said to him (loudly enough for the judge to hear) "ask him how often he gets haircuts. 188 haircuts is more than one a week!" Vaca refused to ask. Since Vaca would not ask any more questions, the judge dismissed the witness.
The judge then ordered that restitution in the amount of $11,040 be paid and in addition any further costs that should be incurred up to $20,000. It seems that Mr. Levenson had been correct that judge Aceto had made up his mind that anyone who would not accept his fair compromise of $10,000 and waste his time trying to find the truth was going to pay $20,000 no matter how ridiculous the actual evidence.
So Aceto awards $20,000 (of Donald's money) to Rubin on nothing but his word that he has had these appointments and that he received haircuts more than once a week (while sitting in the court with a ponytail tucked inside the back of his shirt).
But to be fair, where were judge Aceto's interests? The case had received much local publicity all in favor of the local good mother who had been wronged. Most of the press had reported almost no facts of the case and had left the outrageous lies that had been televised on "Unsolved Mysteries" (supplied by Kelly) to stand, even though the truth was available in Utah court documents (on the internet www.geocities.com/capitolhill/6304 even then). How would it look in the press if he were lenient or if the restitution was small? And from the economic point of view, $20,000 flowing into his county from another location is a plus as well. Any other decision could have served nothing (but possibly justice) and might have led to scrutiny of the judge by a badly misinformed public. If the judge wished to stand for justice he would have been badly outnumbered. Why bother?
Of the four attempts of fraud against Mr. Hanes only one had been successful. The others had been dismissed as quickly as they had been proven fraud. $20,000 had been granted to Rubin with no proof of any kind. With no proof there was nothing to refute, all he had to do was lie and hold out his hand and since there was no penalty for attempted fraud, there was absolutely no risk for anyone to try. Tony tried, Kelly tried, even the prosecuting attorney tried.
Donald's passport (Icelandic refugee passport which he had voluntarily surrendered to the court while awaiting verdict) was returned to him and he was allowed to return to Iceland under probation supervision of Arizona since there were no conditions of probation except paying money. Donald returned to Iceland in November of 1999 after a process that took 8 months.