The Best American Crime Writing 2006 (16 page)

"Had you come up with the name Andre Minnitt?" "No, sir."

Godoy further testified that he had never heard of Martin Soto-Fong before the September 8th interview.

Peasley drove the point home: "The first time you heard any of those three names would have been in the conversation with Keith

Woods on September 8, 1992?"

"Yes," Godoy replied.

"I knew that Godoy had committed perjury in that trial," Lougee said.

Minnitt's second trial ended in a hung jury, and he remained incarcerated on his conviction in the Mariano's Pizza case. McCrimmon's retrial-Lougee's case-began within a few days of Minnitt's. When Lougee prepared, in August of 1997, he made a chart laying out evidence that Godoy had lied in the previous trial. During the retrial, faced with proof that he had elicited false testimony from Godoy, Peasley responded by attacking Lougee for raising the issue.

"Peasley was leaning on the counsel table, hissing at me. His saliva was on me," Lougee recalled. "His finger was six inches away from my face." Repeatedly, in a series of heated conferences with the judge, Peasley expressed shock that Lougee could question his integrity, and dared the defense lawyer to lodge a formal complaint against him.

"He is accusing me of suborning perjury, and if he is going to make those accusations," Peasley said to the judge outside the hearing of the jury,"he should have filed a-"

"Hold it," the judge interjected.

Peasley later challenged Lougee directly in the courtroom: "If Mr. Lougee thought this was perjury, he should have filed a complaint. He hasn't done that."

Nevertheless, Lougee proceeded to demonstrate to the jury that, in fact, Keith Woods had not spontaneously volunteered the names of the suspects in the El Grande case. After just forty-two minutes of deliberation, the jury acquitted McCrimmon of the murders. "When the jury came back, Chris picks me up in his arms and says, 'See, dawg, I told you! I told you!' " Lougee recalled. Later that day, Lougee began drafting his complaint about Peasley to the Arizona state bar. "I didn't celebrate," he told me."I went and filed a bar complaint"-on September 5, 1997. Lougee added, "It has cost me dearly."

But Peasley remained a power in the county attorney's office. In April of 1998, Barbara LaWall, who succeeded Steve Neely as county attorney, appointed Peasley as head of the criminal division, making him the top prosecutor in her office. (In April of 1999, Minnitt went on trial for a third time for the El Grande Market murders, without Peasley as the prosecutor, and was again convicted and sentenced to death.) Even with his new administrative duties, Peasley continued trying and winning cases, and in 1999 he received a national honor-the Association of Government Attorneys in Capital Litigation's Trial Advocacy Award. Lougee, on the other hand, found that his professional life was getting harder. "From the day I brought the complaint, I basically stopped getting plea offers for my clients from that office," Lougee said. (Pima County officials deny that they retaliated against Lougee's clients."I think Rick Lougee suffers from considerable paranoia from time to time," LaWall told me.) Judges, prosecutors, and even defense lawyers rallied to testify for Peasley. Lougee had few supporters; among them was Richard Parrish, a Tucson lawyer and friend, who says, "This guy discovered extreme wrongdoing in a capital case by the most respected prosecutor in Tucson and brought it before judges and before the bar, and was excoriated at every instance for doing such a thing to such a great man."

Still, the bar complaint did move forward, and Peasley had to get a lawyer: he chose his old friend James Stuehringer, who had unsuccessfully represented Martin Soto-Fong in the first El Grande trial, in 1993, and who had his own reasons to be grateful to Peasley. In early 1998, Stuehringer's son Craig was arrested in Cincinnati for possessing a hidden gun while dealing drugs, a crime that carried a mandatory three-year prison term, and Peasley intervened on the young man's behalf. Peasley urged the Ohio judge to allow Craig to do community service rather than serve a prison sentence. (In the end, the judge reduced the charges so that Craig Stuehringer could receive a sentence of probation.)

James Stuehringer, a gregarious midwesterner with a head full of carefully barbered salt-and-pepper hair, practices civil and criminal law at one of the larger firms in Tucson. The obvious question is whether Stuehringer had a conflict of interest. How could he defend the prosecutor against charges of misconduct in the very case that had put one of his clients on death row?

"I was done representing Fong," Stuehringer told me over lunch at Rigo's. "I had taken his case all the way to the United States Supreme Court, which declined to take his case. I had written him a letter saying, 'I worked my ass off for you, and I wish you well,' " Stuehringer said. "The accusations against Ken just had to do with McCrimmon and Minnitt. So was there a conflict in representing Peasley? I sat down with my partners to talk about it, and they said, 'There's no conflict, but be prepared for some shit.' "

Karen Clark, the lawyer who conducted the bar association's investigation of Peasley, tried repeatedly to get Stuehringer thrown off the case but failed. Lougee saw Stuehringer's role as symptomatic of the cozy nature of law practice in a small city like Tucson, not to mention a betrayal of a client who faced execution. "You don't take on the representation of the guy who is charged with misconduct in a case when you were the attorney for the other side unless you are basically saying, 'No harm, no foul,' " Lougee said. "By representing Peasley, Stuehringer was basically admitting that Soto-Fong was guilty. It's appalling."

Godoy and Peasley, not surprisingly, felt wronged by the investigation. "I was just really upset that I had to go through all this," Godoy said. "I was upset with the system, how far they had gone, and the lack of support from my own command staff." Because of Peasley's and Godoy's prominence in Tucson, a prosecutor from outside Pima County investigated the two men for obstruction of justice, and ultimately obtained an indictment of Godoy for perjury. The indictment meant that Godoy had to retire from the police force, though because he had twenty years' tenure he received a full pension. Godoy's lawyer, Michael Piccarreta, told him that prosecutors had offered him a plea."They said,'We'll give you a deal'-guaranteed probation if I turn on Ken and say that he was obstructing justice," Godoy recalled. "Now, I don't cuss that much and it takes me a while to get upset, but I told Mike, 'Fuck no.' I didn't want to lie to get an indictment on Ken."The criminal case against Godoy was finally assigned to a Pima County judge, Lina Rodriguez, who promptly dismissed the indictment on the unusual ground of an "overzealous" presentation to the grand jury. (The same judge later wrote a letter to the bar association as a character witness on Peasley's behalf.) In all, Godoy felt only modestly repentant about the experience: "Did I make a mistake or mistakes? Sure, I did. I'm not going to say I didn't, 'cause it's pretty obvious I did. Were they intentional? Did I need to do it to get somebody in prison? Of course not."

For a long time, Peasley's case stayed within the Tucson legal community.After more than a year of intermittent hearings, the bar association offered to drop the matter if Peasley would accept cen-sure-a punishment well short of disbarment. Peasley turned it down.

He miscalculated. By rejecting the censure, he let the process continue, and as lawyers outside Tucson began to see the facts of his case the potential consequences grew. "In hindsight, of course, you're going to second-guess yourself for not taking the censure," Peasley told me."I didn't do anything 'intentionally' or 'knowingly' wrong. I was not willing to take a censure for something I didn't think I did."

But, as the case moved forward, Peasley's defense evolved from a complete denial of wrongdoing to something more nuanced. First, he pointed out that the case against him had been built using documents that he himself had turned over to the defense in the El Grande cases. Eventually, Peasley's defense turned into a request for pity-something he rarely dispensed as a prosecutor. During the Minnitt trial in 1997, Stuehringer wrote in a brief, Peasley had "vision problems, periodic vertigo, mini-strokes, difficulties in focusing and concentration," so his "physical problems and workload were affecting his ability to function as a lawyer in the courtroom." But his health problems in 1997 didn't explain why he had put forward the false evidence in 1993.Today, Peasley doesn't exactly defend his conduct, though he insists that any mistakes he made were uninten-tional.'Tm the one who screwed up," he told me."I gave them the opportunity to claim what they claimed and to say what they've said.And I don't miss that.And I'm responsible for that."

In 2002, the Arizona Supreme Court overturned Minnitt's conviction and death sentence and ruled that double jeopardy barred another trial, which would have been his fourth. "The record is replete with evidence of Peasley's full awareness that [Godoy's] testimony was utterly false," the justices wrote. "Peasley's misdeeds were not isolated events but became a consistent pattern of prose-cutorial misconduct that began in 1993 and continued through retrial in 1997." Like McCrimmon, Minnitt was now left to serve out the remainder of his thirty-six-year sentence for the Mariano's Pizza shooting.

Finally, on May 28, 2004, the court, following up on its criticism of Peasley in the Minnitt opinion, ordered him disbarred, noting that his behavior "could not have been more harmful to the justice system." On behalf of a unanimous court, Justice Michael D. Ryan wrote, "A prosecutor who deliberately presents false testimony, especially in a capital case, has caused incalculable injury to the integrity of the legal profession and the justice system."

Even with Peasley's disbarment, the story of the El Grande murders was not over. Just a few weeks before that decision, the Arizona court had issued another unanimous order: a warrant of execution for Martin Soto-Fong. The defendant, the court wrote, "shall be executed by administering to martin raul soto-fong an intravenous injection of a substance or substances in a lethal quantity sufficient to cause death, except that martin raul soto-fong shall have the choice of either lethal injection or lethal gas."

The Arizona state-prison complex, in Florence, sits on a barren stretch of desert about fifty miles off the main highway between Phoenix and Tucson. Inside the old prison yard is a small, one-story blue stucco structure that is identified on the outside as "Housing Unit 9." It's better known as the death house. The arrangement inside the building reflects the choice now available to Martin Soto-Fong. A carpeted room for spectators has one window facing the gas chamber and another facing the room holding the gurney used for administering lethal injections. (The only sign inside the building is an Air Quality Control Permit, issued by the Arizona Department of Environmental Quality to "the Florence Prison Gas Chamber.") Meg Savage, a genial middle-aged woman who is a warden at one of the units in Florence, took me behind the window to the gas chamber itself, where the swinging metal door was open."You can sit in it if you like," she said.

Death row in Arizona has a dramatic history. In 1982, a condemned prisoner known as "Banzai Bob"Vickers killed another death-row inmate by setting him on fire; he soaked toilet paper with Vitalis, set it aflame, and threw it between the bars of the man's cell. (Vickers was executed in 1999.) In 1997, another condemned prisoner, Floyd Thornton, was weeding the prison vegetable garden when his wife drove up to the fence and tried to help him escape. She started shooting an AK-47 assault rifle and a.41-calibre revolver, but both Thornton and his wife were killed after guards returned the fire.These incidents, coupled with the general trend toward ever-greater prison security, have led Arizona to establish one of the most restrictive death rows in the country.

The condemned are now housed in a new prison building, known as Special Management Unit II, about two miles from the death house. They stay in their eight-by-twelve-foot cells all day, every day. They may take three showers a week and have up to ninety minutes of recreation, also three times a week.They may not take prison jobs. The recreation facility is a cement-walled twenty-three-by-eleven-foot pen with a rubber ball and a surveillance camera. For days at a time, many death-row inmates may not see another human being. "We are right up there with any super-max in the country," Meg Savage says.

Martin (pronounced Mar-TEEN) Soto-Fong is now thirty and has been on death row for eleven years. He's about five feet six, with a slight build. His ancestry is Chinese and Mexican; he's starting to lose the straight black hair that he had when he was arrested. His voice is soft, and his English has improved during his years in prison. "He's one of the quieter guys we have on death row," Lieutenant Glenn Pacheco, a corrections officer who helps to supervise death row, said. "We never get any trouble from him." Soto-Fong was eight when his family moved from Mexico to Tucson, where his father supported the family as a construction worker. Five years ago, Soto-Fong's mother, who was of Chinese descent, committed suicide, which he attributes to her sorrow over his situation. "I can see her depression, just seeing me going through this," he told me. "I can see that it was putting her through a real difficult time. So, yeah, this had everything to do with it, I believe." As for himself, Soto-Fong said,"I just try to stay as busy as possible. Read.Work out. Write my family. I stay involved in my case a lot. I read a lot of transcripts and whatever my attorneys send me…Just try to do whatever I can to keep myself busy."

He shows some bitterness toward his former attorney Jim Stuehringer, who now represents Ken Peasley. "To this day, I hold some, you know, a bit of anger towards him, and I just feel very betrayed," he said. But he also says he's confident that he, like McCrimmon and Minnitt, will one day be vindicated in the El Grande case."I have no doubt," he said."And I believe with all my heart that Peasley and Godoy know that I'm innocent."