by Mark Bowden
The courthouse crowd in Tucson flees from downtown at every chance, and at lunchtime judges, cops, and politicians line up for Mexican food at Rigo’s, in South Tucson, about fifteen minutes away. Godoy doesn’t so much patronize Rigo’s as preside there, in both English and Spanish. “I tried to think about El Grande the way a bad guy would,” he explained, as we sat in a booth at Rigo’s. “You had all these people killed, so maybe it was a stranger or maybe it was someone who knew them. So I decided to find all the people who had worked at the El Grande. It took weeks, but I found everyone except this one guy, this guy named Martin. I knew he was just a kid, and I kept just missing him. He was moving apartments, staying in different places. At first, I thought it was two different people, one named Soto and the other named Fong. Then I realized it was only one guy, Martin Soto-Fong, and he had never been prosecuted, never even photographed or fingerprinted. I was looking for him, but I was always one step behind him. I needed to make him or clear him.”
The situation became even more pressing for Godoy and Peasley when a similar crime took place on August 26th: in the course of a robbery, masked gunmen shot the owner of Mariano’s Pizza, though he survived. “Mariano’s Pizza was something similar to El Grande because they shot someone when they didn’t have to,” Godoy said. “I learned from these other detectives that they were going to arrest these two guys, Chris McCrimmon and Andre Minnitt, and I wanted to be part of the arrest teams. I said, ‘After you’re finished with them about the robberies, I want to talk to them about the homicides at the El Grande.’” McCrimmon and Minnitt, both in their early twenties, were arrested, with Godoy’s help, on September 2, 1992.
BY THAT POINT, Godoy and Peasley regarded Soto-Fong, McCrimmon, and Minnitt as suspects in the El Grande murders, although there was little evidence against them. Then they discovered Keith Woods, who became the key witness in the case.
Woods, who was friends with Christopher McCrimmon, had been in prison on a drug charge. Although Woods was only twenty-one years old, he was already a three-time felon. When he was released, on August 21, 1992, McCrimmon picked him up to drive him home. A few days later, Woods was arrested for possessing cocaine, a parole violation that subjected him to a sentence of twenty-five years to life. Faced with this prospect, Woods told the detective who arrested him that he knew something about several recent crimes in Tucson, and detectives eventually steered him to Joe Godoy.
On September 8, 1992, Godoy sat down with Woods at Tucson police headquarters for an interview, which was tape-recorded. According to the transcript, Woods said that after McCrimmon picked him up from prison they met with their mutual friend Minnitt, and the two men revealed that they, along with a third man, committed the El Grande murders. In that interview, Woods said he knew the third person only as “Cha-chi,” but he later said that it was Martin Soto-Fong. Woods also said that McCrimmon and Minnitt played a role in the Mariano’s Pizza case. Peasley and Godoy decided not to pursue the parole-violation charges against Woods.
The use of criminal informants poses difficulties for prosecutors, because such witnesses can be extremely manipulative. Some informants lie, telling prosecutors what they want to hear, because they think they can get themselves a better deal. “You have to be tremendously careful that you don’t give them ideas,” says Stephen Trott, a federal appeals-court judge and former prosecutor, who lectures widely on the ethics of using informants. “They know that the best way to stay out of jail is not to hire Johnnie Cochran but, rather, to turn on someone else. At a moment’s notice, they will make stuff up and give it to you. With an interested witness, you do not lay information on the table and let him snatch it and say he knew it already.”
As far as Peasley was concerned, Woods solved two high-profile crimes: the El Grande murders and the Mariano’s Pizza shooting. Peasley told me that he understood the risks of dealing with Woods. “He had priors. He was a drug user at the time. He had one of just about everything a witness could be impeached with,” he said. “So he wouldn’t have been my first choice. But he was who I had. And I was satisfied from the information he was giving that it was accurate.”
Armed with Woods as a witness, Peasley brought charges against McCrimmon, Minnitt, and Soto-Fong. The first El Grande trial, in 1993, was against Soto-Fong, who had worked at the store a few months before the murders. After the tip from Woods, Tucson police investigators determined that Soto-Fong’s prints matched those that had been found on plastic bags and a food stamp found at the scene. In light of this, Peasley said, “probably a third-year law student could have convicted Fong.” The court appointed James Stuehringer, a respected Tucson lawyer and a friend of Peasley’s, to defend Soto-Fong.
During the Soto-Fong trial, Stuehringer criticized the way Godoy had handled the evidence, especially the items with the fingerprints. Peasley defended Godoy with characteristic zeal, and, in the end, won a conviction and a death sentence against Soto-Fong. The trial deepened the bond between Peasley and Godoy. “I thought that Ken did a really good job putting everything back together and saying I’m not a bad cop,” Godoy told me. Godoy was so moved by Peasley’s defense of him that when he married for the third time he asked Peasley to perform the civil ceremony. (Tucson law enforcement is a small world, and Godoy’s wife is also a Pima County prosecutor.)
In 1993, Peasley also won convictions in joint trials against McCrimmon and Minnitt—first in the Mariano’s Pizza case and then in the El Grande murders, with Keith Woods as the key witness. Apart from Woods’s testimony, there wasn’t much evidence against McCrimmon and Minnitt in the El Grande case. Eyewitnesses described a gold Cadillac as the getaway car, and McCrimmon’s fingerprints were found on a car that was parked a few blocks away from the El Grande; but that car was neither gold nor a Cadillac.
It was in these trials, in 1993, that Peasley started bending the truth about the evidence. He knew that a jury would have suspicions about a dubious character like Keith Woods, so he tried to enhance Woods’s credibility, urging jurors to believe Woods because what he’d told Godoy was “something that Woods could get only from those people who were directly involved in causing the deaths” of the three victims. Peasley said that investigators knew nothing about the three defendants until Woods volunteered the information during his interview, on September 8, 1992. McCrimmon and Minnitt were sentenced to thirty-six years in the Mariano’s Pizza case and to death in the El Grande murders. With the convictions of the three men now complete, the case vanished from the front pages of the Tucson papers and the defendants began their wait on death row.
Only a moment’s hesitation by a single juror kept the case alive. Immediately after the verdicts were announced in the 1993 murder trial of McCrimmon and Minnitt, the judge did the customary polling of the jury. In answering whether he agreed with the verdict, one juror wavered, saying, “God, I can’t say ‘yes’ and I can’t say ‘no.’” After further questioning by the judge, the juror went along with the verdict, but three years later, in 1996, the Arizona Supreme Court ruled that the juror had been coerced, and ordered a new trial for the two defendants. (The appeals court, however, separately upheld Soto-Fong’s conviction and death sentence.) For their second trial, which did not take place until 1997, McCrimmon and Minnitt were assigned new lawyers. McCrimmon drew Richard Lougee.
RICK LOUGEE AND KEN PEASLEY could pass for fraternal twins. Both men are fifty-seven, of medium height and weight, with gray hair and a gray beard. Peasley has a slicked-back pompadour, Lougee the tousled look of an aging hippie. Though made from similar raw material, the two men come out of different worlds. Like Peasley, Lougee took a circuitous route to Tucson. He was born into a middle-class family in Connecticut, educated at Franklin and Marshall College, and started law school at Duke in 1969. At that point, he was drafted into the Army, where he served as a stateside chaplain’s assistant; after he was discharged, in 1971, he went to Tucson to study Romantic poetry at the University of Arizona. But he didn’t have the patience for acad
emic life, so he returned to law school, graduated in 1977, and began a career as a defense attorney. He lived in Connecticut, New Mexico, and Key West until he remembered how much he had liked Tucson as a graduate student and returned there, with his second wife, in 1988. He spent six years with the public defender’s office and opened a private practice with a friend the following year. “Because we were just starting out and didn’t have any clients of our own, we applied to the county for what were called ‘contract’ murder cases,” Lougee told me. “The first one I got was Chris McCrimmon.”
Lougee and I were talking in the small adobe house, across the street from the university, where he lives with his wife, who works for him as a paralegal, and their twelve-year-old son. By the late nineties, Lougee had been a defense lawyer for more than two decades, and he had few illusions about the system, or about his own clients. “I normally don’t ask my clients whether they’re guilty,” he told me. “Personally, I don’t care. But the first thing Chris said to me was ‘Dawg, I didn’t do it.’ Frankly, it didn’t make much of an impression. I’ve tried hundreds of cases. I’ve heard it all from clients before.”
Late one night, shortly before McCrimmon’s retrial in 1997, Lougee started reading the transcript of Woods’s first tape-recorded interview with the police, the one on September 8, 1992. Lougee noticed that, during the course of that long, rambling conversation, Woods made a brief reference to an earlier discussion with Godoy. “I said to myself, ‘Holy shit, Joe had talked to him before,’” Lougee said. “I see how Peasley has been finessing this issue. He’s been arguing to the juries that Woods must be telling the truth because there is no other way that Woods could have known this information. Now I see that’s not true. It becomes clear to me that Woods didn’t come up with those names—Godoy did.”
At the last minute, in 1997, the judge severed McCrimmon and Minnitt’s joint trial into separate cases. Minnitt went first, and Lougee walked into the courtroom to listen to some of the testimony, because the same witnesses would also be testifying in the McCrimmon retrial. Peasley asked Godoy about his initial interview with Woods: “When you first sat down and talked with Mr. Woods on September 8 of 1992…had you come up with the name Chris McCrimmon?”
“No, sir,” Godoy said.
“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 censure—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.”