Metropolitan News-Enterprise


Monday, July 28, 2014


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Ninth Circuit Upholds Conviction in Arizona Triple-Murder Case

Divided Panel Defers to State Courts in Case That Led to Prosecutor’s Disbarment


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals Friday upheld the denial of habeas corpus relief sought by a man now serving three life sentences for first degree murder.

The prosecutions of Martin Raul Fong Soto—who also went by Martin Fong—and two other men resulted in perjury charges against a detective, and the disbarment of a prosecutor. But the findings of Arizona courts that any lies told by Detective Joseph Godoy were immaterial to Fong’s conviction are entitled to deference, Judge Robert Timlin wrote for the panel.

Timlin, a senior U.S. district judge for the Central District of California, sitting by designation, was joined by Judge Jay Bybee. Judge Mary Schroeder dissented, arguing that Fong’s conviction was tainted and that he should receive a new trial.

Fong was convicted in Pima County Superior Court of the 1992 murders and robbery that took place at the El Grande Market in South Tucson, Ariz. His co-defendants were tried and convicted separately, but their convictions were thrown out based on questions about the evidence.

Christopher McCrimmon was acquitted at a second trial. Andre Lamont Minnitt had a hung jury in his second trial, was found guilty at a third—with a different prosecutor—but had charges dismissed after the Arizona Supreme Court ruled that the use of false evidence at his first two trials rendered the third double jeopardy.

Both received lengthy sentences for another robbery, however. All three defendants were originally sentenced to death, but Fong was 17 at the time of the murders and was resentenced after the Supreme Court held that the death penalty for juveniles was unconstitutional.

Disbarred Prosecutor

Ken Peasley, who prosecuted the case, was disbarred in 2004 after the Arizona Supreme Court concluded he knowingly solicited false testimony from Godoy at the McCrimmon and Minnit trials. The two-time Arizona Prosecutor of the Year retired after the state Disciplinary Commission brought charges against him, and died of cancer in 2011.

The lead prosecutor in the disciplinary case said at the time that Peasley might have been the only prosecutor in the country to ever be disbarred for using false evidence to obtain a conviction.

The case, and Peasley’s career, were the subjects of “Killer Instincts,” a lengthy 2005 story by legal affairs writer Jeffrey Toobin in The New Yorker.

Godoy was charged with perjury after testifying that the three weren’t suspects in the El Grande killings before he received a tip from an informant. But there had actually been an earlier investigation of the three in connection with another crime.  

Godoy later said he was protecting informants. Two grand jury indictments were dismissed because of defects in grand jury procedure, and a third grand jury declined to indict, but Godoy left the police force.

Informant’s Interview

Informant Keith Woods, facing a 25-year-sentence on a drug charge, gave a partially taped interview to Godoy in which he implicated McCrimmon and Minnit, who he said had confessed to him, and a third person whom the two had identified as “Chachi.” Woods said he later met Chachi and recognized him as Fong after he saw Fong on television.

Fong was a former employee of the market, and Woods said the other two suspects told him that Chachi was a former employee and helped plan the robbery. Fong’s lawyer at trial called Woods as part of a mistaken-identity defense, seeking testimony that Fong was not known as Chachi and that a gang associate of McCrimmon’s named Martin Garza was.

Viewing Godoy’s testimony as a whole, and in light of Woods’ testimony as an ostensible defense witness, Timlin said the court had to defer to the ruling of a superior court judge who denied post-conviction relief to Soto. That judge held that the testimony was not perjurious as a matter of state law and that it did not convey a materially false impression to jurors.

Different Testimony

Unlike Godoy’s testimony at the other defendant’s trials, which featured Woods as a leading witness, his testimony at Fong’s case made clear that Godoy suspected Fong prior to the Woods interview because of contacts with another police detective and the owners of the market, Timlin wrote.

He also rejected an ineffective-assistance claim based on the calling of Woods as a defense witness, explaining that while it was risky and did not turn out well for the defense, it was part of a “calculated and well-reasoned” trial strategy.

Schroeder, dissenting, said the trial was “marked by perjury and incompetence” that should result in a new trial.

Godoy’s testimony, she argued, was false and unfairly bolstered the credibility of Woods, who was highly motivated to lie. She added it was “quite possible” that Fong would have received a more favorable verdict if defense counsel had not called Woods to the stand.

“His own lawyer put the nail in his coffin,” the dissenting judge wrote.

The case is Fong v. Ryan, 11-17051.


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