AP NEWS

Former husband of accused Pocatello teacher back behind bars

January 29, 2019

POCATELLO — The Pocatello man accused, along with his ex-wife, of rape and lewd conduct against a first-grade boy a decade ago was placed back in jail via court order on Monday.

During a district court arraignment hearing at the Bannock County Courthouse in Pocatello, Sixth District Judge Stephen Dunn ordered David James McGarry, 50, of Jerome, be placed back into the custody of the Bannock County Jail with a $50,000 bond. McGarry had been incarcerated from Jan. 17 until Jan. 23 after a warrant was issued for his arrest stemming from the sex crime allegations.

When setting McGarry’s bond at $50,000, Dunn said there was a bit of confusion during McGarry’s initial appearance hearing in magistrate court last week, in which Judge Paul Laggis ordered that he be released from jail on his own recognizance.

Dunn said that confusion regarding McGarry’s release from jail stemmed from the charges against him coming from a grand jury district court indictment instead of a criminal complaint, the latter of which would require a preliminary hearing at the magistrate level to determine whether state prosecutors have enough evidence to try the case with a jury at the district level.

Because McGarry was charged via criminal indictment, there is no need to hold any preliminary hearings to establish whether the state has enough evidence to take the case to trial. In essence, that is what a grand jury is tasked to decide. Therefore, Laggis should not have ordered McGarry’s release from jail because McGarry should not have appeared in magistrate court in the first place.

However, McGarry, who has retained the Pocatello-based attorney Kent Reynolds as his legal counsel, again pleaded not guilty to the charges of rape of a child under 16 and lewd conduct against a child under 16 Monday before he was ordered back into the custody of the Bannock County Jail.

McGarry and his ex-wife, Tiffany Marie Petersen, 46, of Pocatello, who is a teacher at Syringa Elementary School in Pocatello, were indicted for the alleged sex crimes by a Bannock County grand jury on Jan. 16. Warrants to arrest McGarry and Petersen were issued that same day. Petersen has been placed on administrative leave by Pocatello-Chubbuck School District 25.

McGarry was arrested on Jan. 17 and booked into the Jerome County Jail until he was transferred to the Bannock County Jail on Jan. 23. Petersen was arraigned on the charges against her and released from jail on her own recognizance on Jan. 17.

Petersen, who has retained the Pocatello-based defense attorney, Shane Reichert, pleaded not guilty to the charges of rape of a child under 16 and lewd conduct against a child under 16 on Jan. 22.

Petersen is not currently incarcerated. It is unclear if state prosecutors will ask the court to revoke Petersen’s release from jail and set a bond amount in her case following Dunn’s decision to do so in McGarry’s case. Petersen also made a superfluous first appearance in court January 17, given that she’d already been indicted by the grand jury.

Both McGarry and Petersen allegedly engaged in sexual intercourse and other sexual acts with the first-grade student starting in August 2008 while Petersen was the boy’s teacher at Washington Elementary School in Pocatello, according to the indictment. McGarry, who was Petersen’s boyfriend at the time of the alleged incidents was apparently allowed into Petersen’s classroom, according to a civil lawsuit filed against Petersen and School District 25 in August 2018.

The student was 7 or 8 years old at the time of the incidents, which occurred at Washington Elementary School, the indictment stated.

Petersen was later transferred to Syringa Elementary School in Pocatello but has been on leave because of the criminal investigation into the allegations she’s facing.

The lawsuit filed against Petersen and School District 25 does not identify McGarry by name, but authorities confirmed last week that McGarry is in fact the unnamed boyfriend mentioned in the lawsuit.

McGarry and Petersen were dating at the time of the alleged incident in 2008 but would later marry in January 2009 and remain together for five years until Petersen filed for divorce in July 2014.

Sixth District Judge Mitchell Brown will handle Petersen’s case moving forward after Reichert filed a motion last week to have Dunn disqualified based on a potential conflict of interest.

Though Dunn acknowledged that he knew Petersen in some capacity outside of the courtroom that he did not perceive as a conflict during her arraignment hearing last week, Idaho trial rules allow attorneys to file one motion to disqualify a judge without grounds that must be granted if filed in a timely manner.

Petersen is due back in court for a status conference hearing on Feb. 1. McGarry’s case is set to head to trial on May 21, but he is expected back in court before then for various pre-trial motions.

McGarry and Petersen are each facing a maximum penalty of life in prison if convicted of the charges against them.