Fitzgerald had been sentenced to life but case was overturned
A Cowley County man whose conviction for a sex crime against a child was overturned is again accused of a similar crime and is in the Cowley County Jail.
The Arkansas City Police Department arrested Loarn Earl Fitzgerald II, 43, on May 13 on suspicion of three felony counts of aggravated criminal sodomy and one felony count of rape of a child following a sexual assault investigation, according to an ACPD release.
Fitzgerald, of Ark City, was transported to the Cowley County Jail in Winfield in lieu of $500,000 bond through Cowley County District Court in Arkansas City. He remained in custody as of Friday.
Officers first received a report May 10 of a possible sexual assault involving Fitzgerald and two Arkansas City females, ages 11 and 13, the release states.
Police began investigating and met with both of the alleged victims, as well as witnesses.
The release states that several sexual assaults took place within the past 10 months and were reported to officers. Through the course of the investigation, probable cause was determined to arrest Fitzgerald.
He was located on May 13 and arrested without incident.
Fitzgerald was convicted by a Cowley County jury in June 2014 of aggravated criminal sodomy against a child younger than 14, and was sentenced to life in prison without parole. The Kansas Supreme Court overturned the conviction in a 5-1 decision in 2018 because he was charged under one statute but convicted under another.
According to a previous story, Fitzgerald was charged based on a statute prohibiting a person from causing someone to engage in sodomy with someone else. But at trial, the prosecution presented evidence that Fitzgerald had caused a friend’s daughter to engage in oral sodomy with him, rather than a third party.
Fitzgerald was released from Ellsworth Correctional Facility. It was determined he could not be tried again because doing so would be double jeopardy, which is unconstitutional.
He also was not barred from re-entering Cowley County.
After the case was reversed, County Attorney Larry Schwartz said his office reviewed statutes they thought might apply to the case in an attempt to keep Fitzgerald behind bars, but they were unsuccessful.
Chris Smith was the county attorney who prosecuted Fitzgerald in 2014. Smith is now the judge over the district court in Ark City.
Fitzgerald was living in Arkansas City when the crime occurred, but he had moved to Winfield by the time he was arrested and charged.
He was also convicted in 2002 on two counts of aggravated indecent liberties with a child in Labette County.
A defendant’s guilt or innocence is to be determined by a court of law.