Prosecutor’s Misconduct Taints Murder Verdicts

A dozen years have passed since Martin Soto Fong was convicted in a triple homicide at a convenience store in a threadbare south Tucson neighborhood, part of an apparent robbery gone awry.

Soto might have quietly disappeared into the prison system like scores of other inmates -- except for the clouds that linger over the prosecutor who won the conviction, Kenneth Peasley.

A one-time star litigator in Pima County, Peasley was disbarred last year for intentionally eliciting false testimony to win capital murder convictions in the trials of Soto’s co-defendants. Both men are free now -- Christopher McCrimmon acquitted in a retrial and Andre Minnitt released when the state Supreme Court vacated his conviction.

Soto remains in prison.

“I do not believe McCrimmon and Minnitt did this,” said Karen Clark, the State Bar of Arizona attorney who headed the effort to yank Peasley’s law license. “I have seriously strong doubts about [Soto] Fong.”

The case began with a 911 call late on the night of June 24, 1992: At the El Grande Market in a lower-income neighborhood, three bodies were on the floor covered in blood.

Shot to death were Fred Gee, manager of the family-owned market; his elderly uncle, Zewan Huang; and store employee Ray Arriola. About $300 was missing from the register, police said.

Detective Joseph Godoy and others chased down leads and processed evidence, but no suspects emerged for weeks.

Then, on Aug. 31, two calls came to different investigators from anonymous sources, seeming to point to McCrimmon and another man.

Using the tips and other interviews, Godoy soon had suspects: McCrimmon, McCrimmon’s buddy Minnitt and Soto, a 17-year-old former employee of the store.

It was a start but not enough for charges.

That changed a few days later when Keith Woods, a three-time convicted drug offender, was picked up for another offense. Facing 25 years in prison if convicted again, Woods said he had information about the market murders. He later testified against McCrimmon and Minnitt; under a plea agreement, he avoided a lengthy prison sentence.

Godoy interviewed Woods, but didn’t record the first 45 minutes. “No plausible explanation” was offered why some of the interview was not taped, the Arizona Supreme Court found.

In the recorded portion of the interview, Woods said, McCrimmon and Minnitt told him that they and another guy named “Cha Chi” had committed the robbery and murders.

Peasley said Cha Chi was Soto.

Soto denied it, but was convicted and sentenced to death.

Next, Minnitt and McCrimmon were tried together and convicted; their convictions were overturned in 1996 because of juror misconduct.

It was during their retrials that allegations surfaced of false testimony by Godoy. Godoy had testified that Woods was the first to tell him about Minnitt, McCrimmon and Soto; in fact, the anonymous calls had led the detective to the three.

Godoy eventually admitted that his testimony -- that the men were not suspects before Woods approached investigators -- was untrue.

That might have been a trivial matter in some cases, but in this case, much hinged on Woods’ credibility, said Clark, the bar investigator.

And prosecutor Peasley knew it. In his trial arguments, he said Woods’ testimony should convict McCrimmon and Minnitt.

Peasley, twice named Arizona Prosecutor of the Year, had won dozens of capital cases and trained other prosecutors. “Peasley could convict a ham sandwich. He’s that good with juries,” Clark said.

But his knowing use of false testimony -- which won the convictions and death sentences for McCrimmon and Minnitt -- cost him his law license.

“We cannot conceive of a more serious injury, not just to the defendants but to the criminal justice system, than a prosecutor’s presentation of false testimony in a capital murder case,” the Arizona Supreme Court said in ordering the disbarment, a rarity for someone of Peasley’s stature.

In Arizona, 10 lawyers were disbarred last year and seven the year before. Most stole money from clients or committed similar offenses, Clark said, adding that Peasley may be the only U.S. prosecutor disbarred for intentionally eliciting false testimony in a capital case. The American Bar Assn. doesn’t track such cases.

Peasley has said the misstatements at trial were oversights, not intentional misconduct. He maintained he didn’t do anything wrong and accused the state bar of unfairly targeting him. He did not return calls from the Associated Press, seeking further comment.

He now works as an investigator for a criminal defense lawyer in Tucson and cannot be readmitted to the bar for four more years.

Godoy said he lied because he knew he couldn’t talk about confidential informants -- the anonymous callers -- without violating the defendants’ constitutional right to confront their accusers.

“The mistakes they say were intentional were never intentional,” he said in an interview.

Godoy has retired from the police force. Three separate grand juries considered perjury charges. Two issued indictments, which were dismissed by a judge, who found the grand jury was presented irrelevant prejudicial information and was manipulated in the proceeding.

The same judge, Lina Rodriguez of Pima County Superior Court, had volunteered previously to be a character witness for Peasley in his bar discipline proceedings, Clark said.

Meanwhile, Soto is still seeking a new trial. The judge found that the specific misconduct that freed Minnitt and McCrimmon didn’t occur in Soto’s original trial, but his current lawyer argues other misconduct tainted the case.

He was on death row until an unrelated ruling by the U.S. Supreme Court found that people who committed crimes as juveniles couldn’t be executed. He awaits resentencing on Aug. 15 and could get three life terms.

Soto, now 30, said in a phone interview he thought he was being framed even in his first interviews with Godoy.

“You’re wrong. You’re setting me up,” he said he told the detective. In an appeal, he claimed Godoy may have planted fingerprint evidence.

Such a claim might be dismissed as outlandish if it weren’t for the pattern of misconduct already demonstrated, Clark said.

“How in the world could I have set [Soto] up?” Godoy said. The fingerprints, found on a produce bag at the market’s counter and on a food stamp near the register, prove that Soto killed his former boss and the others, he said.

Investigators theorized that Soto’s presence made the crime possible because the victims recognized him and allowed him into the store at closing time.

Richard Gee, the manager’s younger brother, agrees. He supports Godoy and Peasley and believes they did good work.

“If [Soto] walks away free,” he said, “you just let a killer off the hook.”

But Clark points to an additional problem with the Soto case: Two police reports covering the same anonymous tip were filed -- and they named different suspects.

One identified the market murderers as a “black man named McKinney” and “Cha Chi.” The other said “McKinney” and “Martin Soto” were involved.

A major part of Soto’s defense was that he was a victim of mistaken identity. Soto, a Mexican citizen whose mother was Chinese, was not “Cha Chi,” he argued. Another Martin in the neighborhood used that nickname.

Soto’s trial attorney, James Stuehringer, received the “Martin Soto” report, but it was not clear whether he received the other report, referring to Cha Chi. That report was sent to a lawyer in an unrelated case. Legally, Peasley was obligated to disclose all the reports to Stuehringer.

Stuehringer has said he doesn’t recall whether he ever saw the “Cha Chi” report, though he presented trial evidence challenging the Cha Chi nickname, mentioned by Woods; he also argued that Godoy rushed to judgment on Soto. Raising the conflicting reports could have bolstered those lines of defense, Clark said.

In a twist, Stuehringer later represented Peasley, when Peasley was being investigated by the bar. Calls to Stuehringer for comment have not been returned.

Clark said she thought Soto’s case was an injustice but added, “How can you ever know what the truth was?”