If convicted, prosecutors want jurors to have a say in Fitzgerald sentencing

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TOPEKA, Kan. -- If Shawnee County jurors convict the man accused of the sexual assaulting a 14-year-old girl, prosecutors want the judge to increase the sentences the defendant would face, according to a motion filed by the district attorney's office.

Michael Scott Fitzgerald, 47, was indicted on six charges, which are aggravated indecent liberties with a child (sexual intercourse), electronic solicitation of a child 14-16, indecent liberties with a child, indecent solicitation of a child, aggravated interference with parental custody of a 14-year-old girl, and contributing to a child's misconduct (sheltering or concealing a runaway). The six charges are felonies.

The trial before Shawnee County District Court Judge William Ossmann will start on Aug. 12.

In addition to deciding whether Fitzgerald is guilty or not guilty of the charges during the trial, jurors also would decide whether to beef up the sentences if Fitzgerald is convicted, according to the prosecution motion.

Normally, jurors don't participate in the sentencing of a defendant although a jury also will recommend whether a judge should impose the death penalty in a capital murder case if the defendant has been convicted.

In the Fitzgerald case if jurors convict him, jurors also would consider aggravating factors relevant to the sentence, hearing evidence, then hear arguments by the prosecution and defense, and finally decide whether to enhance the sentences, according to the prosecution motion.

"It is the state's position that the (judge) should determine that the interests of justice are best served by a separate proceeding immediately after the trial," the prosecution said.

Two departure factors exist in this case, the prosecution motion said.
-- The "fiduciary" nature of the relationship Fitzgerald and the girl.
Fiduciary relationship refers to any relationship of blood, business, friendship or association in which one party places special trust and confidence in the other, the motion said.

The prosecution contends Fitzgerald, a close friend of the family and a father figure to the girl, accepted a position of trust and care for the well-being of the teen. The teen's mother trusted him with her daughter, he was the youngster's track coach, the two were in a theater production together, and he was a frequent visitor in the family home, the prosecution wrote.

-- The second factor was persuading the victim to avoid detection or apprehension for the commission of any person felony, the prosecution contends.

The eight-page motion filed this month doesn't specify what enhanced sentences prosecutors would seek.

As the case stands now, if Fitzgerald, who doesn't have a criminal history, were convicted of aggravated indecent liberties with a child (intercourse with a child older than 14 and younger than 16) or electronic solicitation of a child, he could be sentenced to four years and 11 months for each conviction, according to the Kansas sentencing grid.

On Wednesday, Fitzgerald remained in Shawnee County Jail in lieu of a $250,000 cash or professional surety bond, the county corrections department said.

The 14-year-old girl was reported missing from her Topeka home since January 22, then was located with Fitzgerald in a motel in the town of Cortez in southwest Colorado two days later.

The indecent liberties count is alleged to have occurred on January 24th.

From Topeka, Fitzgerald and the girl had fled to Dodge City, then Walsenburg, Colorado, then Cortez, a Shawnee County prosecutor said during a Shawnee County District Court hearing. Law enforcement officers had found the two in a motel clad in their underwear, the prosecutor said.

Fitzgerald didn't oppose extradition to Topeka.