The Best American Crime Writing 2006 Page 13

  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 unintentional. “I’m 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 prosecutorial 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.”

  Several years ago, during the bar proceedings against Peasley, Rick Lougee turned his attention to Soto-Fong. Working on his own time, along with a paralegal, Linda Lavis, Lougee became convinced of Soto-Fong’s innocence and was just as obsessive on the subject as he was in pursuit of Peasley’s disbarment. “My wife said this case would make me crazy,” Lougee said, with a half smile. “She was right.” Progress was as slow on Soto-Fong’s case as it was on Peasley’s, and Lougee has at times been despondent about that one, too. Two years ago, Lougee sent an e-mail to some lawyer friends that concluded, “Martin told Joe [Godoy] when he was arrested, ‘You’re framing me.’ Martin was right. Godoy, Peasley and that prick, the ultimate prick Stuehringer, are trying to kill an innocent kid. Someone needs to stop this, but I can’t do it alone. I’m tired, broke and nearly suicidal. Please help.”

  ONE DAY IN TUCSON, I asked Ken Peasley to take me to the El Grande Market. Reopened under new management and renamed Jim’s, the market still looks much as it did in 1992, with long aisles full of inexpensive merchandise and a cash register near the front. Standing by the entrance, Peasley narrated his version of how the murders took place, largely on the basis of the fingerprint evidence and the testimony of Keith Woods. “Soto-Fong went to the produce counter, which used to be in the back, and picked up some cucumbers and lemons,” Peasley said. “He put them down on the counter, and something happened between him and Mr. Gee, the owner. Something happened between the two of them, and then it became a fucking shooting gallery. They got about three hundred dollars, a hundred dollars a body. Strange thing was, there was all kinds of money in cigarette cartons in the back, but they didn’t see it or something, because it was still there after the murders.

  “Fong had worked there, so he knew they would recognize him,” Peasley went on. “So if he was going to allow someb
ody to recognize him, they were going in there with the idea of taking the money and killing the people who were there. To this day, that’s what I believe happened.” Fingerprints identified as Soto-Fong’s were found on plastic bags (which had contained the lemons and cucumbers), as well as on a food stamp, and that helped to convict him.

  Lougee has tried mightily to discredit the fingerprint evidence. At the murder scene, he says, Godoy collected and processed the plastic bags in a haphazard way, and delayed forwarding them to the crime lab. It isn’t clear whether the food stamp with Soto-Fong’s fingerprints is the one that appears in photographs of the scene, and there was conflicting testimony about whether it came from the cash register or had been found on the floor near Gee’s body. (Since Soto-Fong had worked at the El Grande a few months earlier, it would be possible for his prints to turn up there.) At the time of the investigation, the fingerprint examiner, Timothy O’Sullivan, who had made significant errors in earlier cases, was suffering from terminal cancer and was heavily medicated, raising questions about his focus and attention. It is peculiar that O’Sullivan, who died before the trial in 1993, identified only Soto-Fong’s prints on the evidence, and not those of anyone else who worked at the store. It is also odd that other produce bags at the store had a red line across the top but the one with Soto-Fong’s prints, did not.

  Nonetheless, by the time Peasley was disbarred, Lougee despaired of finding conclusive proof that Soto-Fong was innocent. Lougee could not look to Keith Woods, the dubious informant, for help. After testifying against the El Grande defendants, Woods moved to Nevada, where he was convicted on federal cocaine charges and sentenced to thirteen years in prison. In 2001, Woods pleaded guilty to possessing marijuana and heroin in prison and received a sentence of an additional twenty-seven months. (In response to a letter from me, Woods asked that he not be mentioned in this article.)

  By now, Soto-Fong had been assigned new lawyers for a final appeal in federal court, so Lougee was ready to turn the files over to them. “I was so obsessed that my wife was getting ready to leave me,” he told me. “I thought to myself, I don’t need this anymore. I decided to take another murder case from the county, a woman named Carole Grijalva-Figueroa. Simple case. Shooting at a Circle K. And then one day Carole says to me, out of the blue, ‘Do you remember El Grande?’”

  TO LOUGEE, the government’s theory of the El Grande murders—that it was a botched robbery—never made much sense. The perpetrators allegedly stole just a few hundred dollars, and they left thousands more in cash lying around the store. Photographs from the night of the murders show several cigarette cartons full of cash that had been left in plain view. Peasley said that he thought the killers panicked and forgot to take the cash—or that they never saw the money in the first place—but the motivation for the murders had never been entirely clear.

  The South Tucson neighborhood was full of drug dealing and, in the early nineties, a great deal of drug violence. In the days following the murders, Peasley and Godoy seem to have investigated the possibility that the murders had a drug connection. Godoy received a tip that a man named Ernest King, who had ties to the Tucson drug world, might have been involved in the murders at the El Grande. Godoy interviewed King, checked his prints, and gave him a lie-detector test, which he passed.

  “We can tell when somebody’s lying. We can smell these things,” Godoy told me. “King was clean.” Once Keith Woods appeared on the scene, the investigation of a drug connection was dropped.

  Carole Grijalva-Figueroa, who is thirty-four, was arrested in January, 2004, for her role in a fatal shooting outside a Circle K convenience store in Tucson. As part of a religious awakening, Lougee says, Grijalva-Figueroa has told him of her association with the city’s drug underworld, and that included a connection to the El Grande murders. According to a transcript of a statement that Grijalva-Figueroa made to a private investigator, which she acknowledges in a brief telephone interview, the murders were a revenge killing over drugs. Grijalva-Figueroa said that, in June, 1992, a friend learned that about sixty-five pounds of cocaine that he partly owned had been stolen—and that “the El Grande guy” had tipped off the people who took it. As a result, her friend and two other men went to the store on the night of June 24th to exact retribution. “I was supposed to be the lookout,” she said, adding that she waited in a gold Cadillac while three men went inside.

  “I sat and I waited. Heard a bunch of yelling. And I heard shots,” she said, according to the transcript. She drove the three men from the scene, and heard one of them say, “Did you see I got that motherfucker point-blank?” As for Martin Soto-Fong, Chris McCrimmon, and Andre Minnitt, Grijalva-Figueroa said that she didn’t know them.

  Grijalva-Figueroa’s version of events raises many questions, as Lougee acknowledges. It is, for example, hard to square Grijalva-Figueroa’s version with Soto-Fong’s fingerprints on the plastic bags—if those bags were really the ones found by the register and those prints are really his. “I know it seems impossible that, out of all the cases in the world, I happen to get this woman out of the blue who solves the one case I’ve been obsessed with for years,” Lougee said. “I know there will be people who think that I fed it to her, or she didn’t say it, or that it’s just too pat. I can’t help it. But I believe her story is true.” Grijalva-Figueroa, who is in protective custody, fears for her safety, and, according to Lougee, has said that she may deny any knowledge of the El Grande case if she feels that testifying will jeopardize her further. “How do you present a case like this to a jury?” Lougee said. “You’re better off as a defense attorney if you can just point to a single lie or a couple of them. No one will ever believe you if you say the whole thing is a lie.”

  KENNETH PEASLEY ISN’T THE only prosecutor who has got into trouble in Pima County lately. David White, who preceded Peasley as the head of the criminal division, failed to disclose more than eight hundred pages of potentially exculpatory documents to defense lawyers in a first-degree-murder case; the county was compelled to dismiss the charges. (White died in 2003.) In July, the Arizona Supreme Court suspended the law license of a third veteran prosecutor, Thomas Zawada, for six months and a day, because he made false accusations against defense lawyers in yet another first-degree-murder case.

  In October, a prominent local doctor, Brad Schwartz, was charged with hiring a hit man to kill a former colleague, who was stabbed to death. Schwartz had been romantically involved with a onetime Pima County prosecutor, and had social ties with her former office; last month, LaWall fired a deputy county attorney and suspended three others who had apparently delayed sharing relevant information about the case with the police. In recent months, at least eight other prosecutors have retired or resigned—extraordinary turmoil in an office of only about sixty prosecutors. Still, in LaWall’s opinion nothing is amiss. “I don’t think any of the conduct of any of these men reflects on the office,” she told me. “This is a good office.”

  The three men convicted in the El Grande case remain in prison. In 2004, the International Court of Justice, in The Hague, ordered the United States to grant new hearings to several condemned Mexican nationals, including Martin Soto-Fong, but it’s not clear how that ruling will be applied. Through his new attorney, Gregory Kuykendall, Soto-Fong is seeking a writ of habeas corpus in federal court in Tucson, a case that would appear to be his final hope of avoiding execution. McCrimmon and Minnitt, incarcerated on Keith Woods’s testimony in the Mariano’s Pizza case, will not be eligible for release until about 2023. Lougee hopes to challenge McCrimmon’s conviction in that case as well, but no appeal is yet pending.

  Joe Godoy and Ken Peasley, still close friends, have joined forces in the private sector, working out of the historic downtown house that serves as the law offices of Brick Storts, a prominent Tucson defense attorney. Godoy is now an investigator, and Peasley is a consultant and a paralegal. (They are collaborating on Schwartz’s defense.) Godoy is characteristically effervescent about his new role. “I have
to work nights sometimes, just to keep up with my work. And I have a couple of guys working for me, and, gosh, I just got too much work,” he said. “The people that know me know that I’m not a bad cop and that I’m not a bad person.”

  The lawyers in Storts’s building have spacious offices in the front, but Peasley is wedged into a small room in the back, next to the parking lot. The papers on his desk are still arranged in orderly piles, and his prosecutor-of-the-year plaques hang on the stucco walls. While we were talking, a secretary came in to say that one of the lawyers was heading back from court, and Peasley almost sprinted out to the parking lot, to make sure that my car wasn’t blocking the lawyer’s way. “He hates when someone gets in his space,” Peasley said.

  For now, Peasley is collecting his pension and marking time. He had a heart attack and quadruple-bypass surgery in 2003, but he has kept some of his old habits. “Cigars is what I do. And I shouldn’t even do that,” he said. “I shouldn’t have done a lot of things. And, unfortunately, the reason I had the heart attack is I probably did everything that was bad for you for so many years it was inevitable that something was going to happen.” He is not ready for the El Grande case to stand as his legacy. “It’s disappointing,” he said. “And the reason is, I worked real hard and, frankly, every case I handled was prosecuted with integrity. And for twenty-seven years I did it, and one case, basically, is the definition of what I’ve done. I mean, the best that I can hope to be remembered as is the guy who screwed up the triple-murder case.” Peasley plans to apply for readmission to the bar as soon as he is eligible, in about four years.