Trial set for Ariz. chiropractor accused of sexual assault at Palms
A Las Vegas judge has scheduled a March trial for an Arizona chiropractor accused of sexually assaulting a woman at the Palms, but the defendant's lawyer said he plans to seek another dismissal.
District Judge Michael Villani dismissed the case against Marino Scafidi, 34, of Tempe, Ariz., last year after concluding that the state of Nevada had destroyed crucial evidence, but the state Supreme Court reversed the judge's decision in January and sent the case back.
The case stems from Scafidi's encounter with a woman he met through the online dating service Match.com. Although the woman's name appears in court documents, the Las Vegas Review-Journal typically does not identify victims in sexual assault cases.
After Scafidi's criminal case was dismissed, he filed a civil rights lawsuit against Las Vegas police and the Palms. The civil case has been stayed indefinitely.
According to the lawsuit, Las Vegas police and Palms security officers unlawfully searched Scafidi's hotel room and conspired "to not preserve exculpatory evidence." As a result, the complaint alleges, Scafidi was falsely charged.
Scafidi and the woman went on a date on Sept. 1, 2012, at the Palms. At about 3 the next morning, according to Scafidi's lawsuit, he and the woman went back to his hotel room, where she sent multiple text messages to her friends.
Eventually, the complaint alleges, Scafidi and the woman "engaged in consensual sexual acts" and "agreed to videotape portions of their sexual activity."
Later, the woman walked into the bathroom and called 911.
Although the woman was taking a prescribed antidepressant, Wellbutrin, tests of her blood revealed that she did not ingest any illicit drugs, according to Scafidi's lawsuit, which indicates she did have a blood-alcohol level of 0.17 percent.
The lawsuit claims Scafidi also provided a blood sample, but the defendants destroyed it and chose not to test it for drugs or alcohol. The defendants also destroyed the woman's blood and urine samples, according to the document, and chose not to examine her cellphone.
In dismissing the criminal case last year, Villani wrote, "In certain circumstances, the state's failure to preserve any single piece of evidence could prejudice a defendant, but said prejudice could be cured by an advisory jury instruction. However, in this case, an advisory jury instruction cannot cure the prejudice of three missing pieces of crucial evidence."
The Supreme Court concluded that Scafidi failed to demonstrate that the woman's Wellbutrin levels "would have created a reasonable doubt that did not otherwise exist."
Also, according to the high court's order, the record does not support Villani's finding that Scafidi's blood was collected as evidence. Rather, the blood was drawn to screen for sexually transmitted diseases, according to the high court's decision.
However, the record does support Villani’s finding that evidence in the form of text messages, which were not preserved, "was foreseeably exculpatory," the Supreme Court concluded.
The court then sent the case back to Villani to consider whether the appropriate remedy was to dismiss the case "or to give a curative jury instruction."
After a hearing Friday, the judge opted for the latter and scheduled a March 28 trial date.
Scafidi's lawyer, Cal Potter III, argued at the hearing that the alleged victim "did not innocently delete the text messages." One could infer that she destroyed the messages "because they were exculpatory," he said.
Villani previously suppressed Scafidi's video of the sexual encounter after ruling that police used illegal search warrants to obtain it.
While the ruling prohibits prosecutors from using the video, Chief Deputy District Attorney Dena Rinetti argued that nothing stops the defendant from using it to prove his claim that he and the woman engaged in consensual sex.
"By all means, play the video," Rinetti said at Friday's hearing.
Potter then accused Rinetti of trying to shift the burden of proof to the defendant. After the hearing, Potter said he plans to ask Villani to stay the criminal case while he seeks a dismissal from the Nevada Supreme Court.
Scafidi attended the hearing but declined to comment afterward.
Contact reporter Carri Geer Thevenot at cgeer@reviewjournal.com or 702-384-8710. Find her on Twitter: @CarriGeer
