After the quake in Castelluccio

Castelluccio di Norcia sits like a fairy-tale castle on a hill above tree-line, 4700 feet up in the Apennine Mountains of Central Italy. 

Until last October it was a tourist stop-over, an idyllic, out-of-the-way village that was also famous for lentils, or more exactly for the fields of lentils in the high surrounding basin that shimmer iridescent with red poppies, purple gentian and other “weeds” that grow among the legumes.

And in fact, on that late June day, there were crowds of tourists along the two-lane road bisecting the fields, sitting on the grass and gazing into the flowering fields, though it is now a more difficult destination to reach.

From the distance, Castelluccio looked like many medieval villages in this part of central Italy, southeast Umbria, that is, nearly straddling the border with the neighboring region of Marche.  But as we got closer, it looked more and more like a wedding cake that had fallen.

Buildings were literally bent in the middle, interspersed with piles of rubble that had once been homes and businesses.

On October 30, Castelluccio was at the epicenter of an earthquake that measured 6.6 in magnitude, the strongest in 35 years.  It was the second quake that fall. The first, in August, had killed 300 people across the region. And though no people were killed in the October quake, it rendered the village uninhabitable.

Chain link fences had been erected all around the hill and the city above it. Young Italian soldiers stood guard next to a large complex of chemical toilets where the city entrance meets the road that on its way down the pass to Marche. The soldiers stopped every car to ask the intentions of the travelers and tersely answered their questions, turning many of them back. You need government permission to get there, and permission to get back out.

We had seen the first signs of the quake damage in the streets of Norcia, a small city that dates to Roman times down on the plains below. Norcia is so well-known for its pork and wild -boar meats, prosciutto and salami, that butcher shops in this part of Italy are called norcinerie.

The city’s ancient basilica tragically had sections that had been reduced to rubble, as did the ancient city walls. Some businesses seemed untouched, and others had erected tents or trailers in parking lots beside the piles of block and lumber that had been their stores and offices.

The salumeria seemed untouched, however. Inside haunches of pork and wild boar, which is called cinghiale, salami and prosciutto hung from ceiling hooks next to mule balls and pig bladders, and the butchers bustled to take care of customers.

From there, it was a winding hour drive or more up the mountains to Castelluccio, and the once-modern highway had taken a hit. Guardrails hung from the side of the pavement, which had fallen down the steep cliff-sides. Sometimes around a blind corner, a front-end loader or bulldozer would be clearing rock fall and other debris from the road. Then over a final pass, we stopped a moment to look at the old town from afar, from where it still looked magical.

Only a few of the town’s 300 residents remained, we were told Someone had to take care of the fields and the livestock. On one hillside, I saw a small portable trailer and what appeared to be a sheep camp, but I saw no people there.

But on that one open side street that dead-ended after about 10 yards, was a sign of persistence. Next to a hotel and restaurant, the owners had set up a food truck serving pork chops,  pasta with mushrooms and cinghiale, and of course lentils. The hotel was closed, but the open-air porch of its dining room was still usable.

I ordered a beer and a bowl of lentil soup with a sausage in it. It was in a plastic dish, something you don’t often see in Italy, and I had to eat with plastic silverware. It tasted as rich and savory as defiance.

While I ate, the owner of the restaurant stood by proudly, wearing a white tee shirt with these words in big letters: Resto in piedi.

“I’m still standing.”           


The Myth of Parole in Arizona

Hundreds of people were sentenced to life with chance of parole. Just one problem: It doesn't exist

Parole for murderers was abolished in Arizona in 1993. So what will happen to more than 200 people who have been given the sentence since then?

Michael Kiefer , The Republic |

Murder is ugly, and murderers are not sympathetic characters.

But justice is justice, and a deal is a deal.

We expect the men and women who administer the criminal justice system — prosecutors, defense attorneys, and especially judges — to know the law and to apply it fairly.

Yet, for more than 20 years they have been cutting plea deals and meting out a sentence that was abolished in 1993: Life with a chance of parole after 25 or 35 years.

Some of those deals are about to come due.

Danny Valdez, for example, was part of a 1995 drug deal that went bad in Glendale. One person was killed, and no one was sure who fired the shot.

Valdez took a plea deal to avoid death row, and following the terms of the agreement, the judge sentenced him to life in prison with a chance of parole after 25 years.

The only problem: Parole was abolished in Arizona in 1993. As of January 1994, it was replaced by a sentence that sounds similar, but in fact nearly eliminates the possibility of ever leaving prison alive.

Valdez should have been sentenced to “life with chance of release after 25 years.”

“Parole” was something that could be granted by judgment of a parole board, based on the prisoner's behavior and rehabilitation, without the approval of a politician.

But release is a long shot, because it requires the prisoner to petition the Arizona Board of Executive Clemency, which can only recommend a pardon or commutation of sentence by the governor.

Valdez has served 22 years of his sentence.

"He's not a bad person, and he's done well in prison, and he would be good on the outside," his sister-in-law, Cassandra Valdez, recently told The Arizona Republic. Referring to his crime, she added, "He's not normally like that."

But he was involved in a murder. He is doing his time.

No one — not Valdez’s attorney, not the prosecutor, not the judge — ever told Valdez that he was not legally entitled to parole or a parole hearing. He found out when he received a letter last December from The Republic.

He didn’t want to believe it.

"Why would they sentence me with parole if it was abolished?" he asked in a return letter.

 “I was sentenced in 1995 and will be eligible for parole in 2020,” he wrote. “If I would of (sic) known that I would have to go through the process of pardons and commutations, I would of (sic) went to trial.”

Valdez is not alone.

What if they passed a law and nobody noticed?

Between January 1994 and January 2016, a study by The Republic found, half of Arizona murder defendants sentenced to less than natural life sentences — at least 248 current prisoners in the Arizona Department of Corrections — were given sentences of life in prison with a chance of parole after 25 or 35 years.

The sentence has not existed since the law was changed in 1993. But judges, prosecutors and defense attorneys continued to crank defendants through the system, seemingly unaware of the mistake.

Duane Belcher, a former head of the state clemency board, started gathering examples early in this decade, but he was fired by former Gov. Jan Brewer before he could do anything about it. He took the issue to the Arizona Supreme Court, which oversees all state courts.

“People are going into an agreement with the understanding that they will be eligible for parole, and it’s not the case.”

Duane Belcher, former head of state clemency board

Belcher, appointed to the Arizona Board of Pardons and Paroles in 1992, remained in the office long after it became the Arizona Board of Executive Clemency under the new law. He served many years as its chairman.

“I started asking the question in 1994 when the law changed,” Belcher said. “What’s going to happen when 25 years comes? Nobody seemed to have the answer.”

Belcher was only talking about how the state was going to handle those prisoners sentenced to life with a chance of release. Then he noticed that some defendants were still being sentenced to life with chance of parole. He started to collect examples, concerned about the inaccurate sentences.

Belcher, a former parole officer and former supervisor at the Department of Corrections, looked at it from both sides.

“People are going into an agreement with the understanding that they will be eligible for parole, and it’s not the case,” he said.

But he also worried about whether it could be grounds for reversing a sentence.

“We don’t want to go back to the public and say we paved the way to letting go a murderer.”


Belcher started to tell people about the error, including the administrative offices of the Arizona Supreme Court.

“Nobody really gave a damn, because (it was as if to say) ‘In 2019, I’ll be gone,’ ” he said. “Nobody wants to look in the mirror and say, ‘I screwed up.’ ”

Defense attorneys have brought it to the court’s attention, too.

But courts tend to kick matters down the road until someone files a lawsuit. The first attempts to correct the problem by individual prisoners have been easily knocked down in court. Several were rendered moot when the state was forced by a 2012 U.S. Supreme Court decision to reinstate parole for juveniles. The decision barred mandatory natural life sentences for murderers younger than 18.

As for the rest?

The first cases will not become ripe until at least 2019, 25 years after the new law was enacted. The question is, what happens?

The best remedy for what could be a judicial error is a new trial. But will defendants really want to go there and face anew the possibility of a death sentence? Some have already entered new pleas to the correct sentence — life with chance of release after 25 years.

“The reason why I signed the contract was for the chance to get out after 25 years, and that was in the plea I signed. … I am prepared to pay for my error, but neither should they hide something so important from me.”

Juvenal Arellano, sentenced in 2004 to life with chance of parole

Several prisoners contacted by The Republic were unaware they were not really eligible for parole.

“When they sentenced me, they did not say that parole didn’t exist,” Juvenal Arellano said in a letter to The Republic. Arellano killed a man while stealing his car in 2004, and he, too, pleaded to life with chance of parole.

 “The reason why I signed the contract was for the chance to get out after 25 years, and that was in the plea I signed. … I am prepared to pay for my error, but neither should they hide something so important from me.”

He thought he would someday see his family again.

So, too, Jock Coker, who beat a man to death in 2009 and then stole his truck to use in armed robberies.

 “When I signed my plea agreement, I was told by my then-attorney that after I serve 25 calendar years that I will be eligible for parole,” he wrote. “That is the sole purpose of me signing the plea agreement. Because I felt by me getting paroled after 25 years that I have a chance of enjoying my kids, mother and the rest of my family out there in the free world.”

He has practically no chance at all.

Truth in Sentencing

The change came in 1993, when the Arizona Legislature followed a national trend by passing a series of tough-on-crime laws under the name Truth in Sentencing, which was a national buzz word.

It was championed by then-Gov. Fife Symington, who repeated the slogan “Do the crime, do the time” as a rallying cry. And he mustered outrage for his cause with the complaint that a convicted murderer named James Hamm had been granted parole after serving 17 years of his sentence.

Ironically, Symington later resigned the office after being convicted of seven counts of fraud in federal court. But he never had to do the time. His conviction was overturned and remanded on appeal because of juror misconduct. Before he could stand trial a second time, he was pardoned by college chum, then-President Bill Clinton.

Hamm, on the other hand, became the poster child for rehabilitation, earning a law degree from Arizona State University. Though the Arizona Supreme Court would not allow him to be admitted to the state Bar, he became a paralegal and a prisoner-rights advocate.

Among the components of Arizona’s Truth in Sentencing bill to make life harsher for bad guys was language to abolish parole and disband the parole board. It established the Arizona Board of Executive Clemency in its place.

The sentence of “life with chance of parole after 25 years,” the third-harshest sentence possible in Arizona, was eliminated. It was replaced by “life with chance of release after 25 years,” 35 years if the murder victim was a child. The other sentence options for first-degree murderers were death or natural life, which means no possibility of parole or release, ever.

Life with chance of release, in effect, is a mitigated sentence, meaning it is imposed when there are circumstances that render the crime less horrible than a murder that calls for natural life or death. Life sentences also may be imposed for conspiracy to commit first-degree murder, sexual conduct with a child, and in certain cases where a repeat offender is deemed incorrigible.

'25 to life' — and then what?

The two sentences sound very similar. And this has become a problem, because judges and lawyers tend to conflate the two and use the shorthand phrase “25 to life” to describe either, without defining the end result.

But they are substantially different.

Those eligible for parole could get a guaranteed hearing before the parole board, a state-appointed panel that had the authority to release the prisoner. It was not a guaranteed release, but instead depended on the prisoner’s behavior and rehabilitation while in prison. And if denied, the prisoner could re-apply after six months to a year.

But under the new system, there is no automatic hearing. Instead, the prisoner has to petition the Board of Executive Clemency, which would likely require a lawyer. The board can then choose to hold hearings on the prisoner’s likelihood to stay out of trouble and make a recommendation to the governor. Rather than parole, the prisoner needs a pardon or a sentence commutation. Only the governor can provide those.

In essence, the process ceased to be a rehabilitation matter and became a political decision.

The earliest “life with chance of release” cases will reach the 25-year mark in 2019. But there is no mechanism set up to handle the cases yet, and most of the prisoners are indigent and unlikely to be able to hire attorneys to start the process.

In the end, “life with chance of release” differs very little from “natural life.” And that has become a problem in federal court.

The law was altered slightly in 2013 to make it even harsher. "Life with chance of release" was eliminated for those convicted of premeditated first-degree murder, but remained in effect for juveniles and for those convicted of first-degree felony murder, meaning that someone died during the commission of another felony.

How the affected defendants get a chance at possible release remains in question.

Petitions for clemency would go to the Board of Executive Clemency, but that agency has no authority to set up the process.

"Whose problem is it?" asked Ellen Kirschbaum, the board's executive director. "As the Board of Clemency, we have to stay neutral. We're a board that follows the law set out for us."

Board chairman C.T Wright agrees.

"We're in a precarious situation," he said. "We will follow the dictates of the Legislature."

If it makes any.

In 1994, the first year that the new sentencing was in effect, judges and attorneys paid attention to it. There was only one defendant accidentally sentenced to “life with parole” in the entire state.

The next year, 1995, there were three such sentences, including Danny Valdez, who thinks he is eligible for parole in 2020.

But by 2001, the number of “life with parole” sentences had risen to 16 statewide. Between then and 2013, it averaged about 15 per year. The peak was 27 in 2008 — all but four of them from Maricopa County Superior Court.

Judicial imprecision

Law is a very precise discipline, and in their motions and oral arguments, in case law and court orders, judges and attorneys parse words, stressing the differences between “shall” and “will”; “probable cause” and “preponderance of the evidence”; and “reasonable doubt” and “beyond all doubt.”

The Arizona Revised Statutes define a life sentence in this way: “If the defendant is sentenced to life, the defendant shall not be released on any basis until the completion of the service of twenty-five calendar years if the murdered person was fifteen or more years of age and thirty-five years if the murdered person was under fifteen years of age or was an unborn child.”

Minute entries, which are a Superior Court judge’s record of what transpired in open court, and also the record of the judge’s orders in a case, are full of boiler-plate language.

But when it comes to notarizing a life sentence, the state’s third-harshest possible after death and natural life in prison, judges follow no set language.

Instead, the minute entries may say “life with chance of parole after 25 years,” “life with no chance of parole for 25 years,” “life with chance of release after 25 years,” “with eligibility for release,” “without eligibility of release or parole for 25 years,” “life,” “25 years to life,” “lifetime,” or myriad other combinations.

The Republic reviewed minute entries for more than 500 life sentences imposed between Jan. 1, 1994, and Jan. 30, 2016. Most of the cases came from a list of prisoners with life sentences provided by the Arizona Department of Corrections, but others excluded from the DOC list turned up over the course of research. After sorting out some natural-life sentences accidentally included in the list, and other errors, and then adding other cases that were uncovered, The Republic was left with 490 cases.

Most of the defendants had pleaded to or been found guilty of first-degree murder. Some were convicted of conspiracy to commit first-degree murder or sexual conduct with a child. A few were repeat offenders.

The database does not include defendants sentenced to multiple consecutive sentences of life with chance of parole, only those prisoners who would have a reasonable chance of living out the specified time before they are eligible for parole/release. All of the prisoners in the database were confirmed on the Department of Corrections website as being currently in the state prison population.

Sentencing minute entries show:

  • 158, or 32 percent, were precisely written to specify a chance for “release” after 25 or 35 years.
  • 84, or 17 percent, of the sentences are written as “life” or “lifetime” or “25 years to life,” which is imprecise, but not inconsistent with the wording of the 1993 statute.
  • 248, or 51 percent, offered a chance of parole after 25 or 35 years, contradicting the law. The lion’s share of those sentences — 175 — were imposed in Maricopa County Superior Court, which is widely regarded as a worldwide model for court administration and efficiency.
  • Of the invalid sentences, 90 were the result of plea agreements, meaning that the defendants pleaded guilty with the expectation that they would get a hearing before a parole board after 25 or 35 years.

Courting confusion

Some judges interviewed by The Republic theorized that the incorrect sentences on minute entries could be clerical errors, or a faulty template for the documents.

But 248 times? That number does not include numerous "life with parole" sentences excluded from The Republic database because the inmates have so many consecutive sentences to serve that they could never live long enough to have a parole hearing.

To the inmates sentenced under those terms, it is the formal record of their sentence. All of those minute entries bear the judges’ signatures.

 “In 2006, I was sentenced to life with possibility of parole,” said Francisco Centeno-Lopez, who shot and killed his brother-in-law after an argument and a long-running antagonism. He took a plea agreement.

“At the time of signing, I was not told by my lawyer that I would have to apply for a pardon or a commutation of sentence,” Centeno-Lopez wrote in Spanish in a letter to The Republic. He was told that if he had a good record in prison, he could get out after 25 years.

“When I spoke to my attorney about the plea agreement, he said it was the best he could negotiate, and it was sign the plea or go to trial, lose and spend the rest of my days in prison,” he wrote.

Needless to say, judges and attorneys, the people who are expected to enforce and interpret the law, are confused.

In 2004, for example, a defendant who discovered that there was no parole wrote to the judge who sentenced him, Jeffrey Hotham.

Hotham fired off a letter to the Arizona Department of Corrections, and notarized it in a minute entry, saying, “The court has received a letter from the defendant indicating that the Department of Corrections has communicated to the defendant that the defendant is not eligible currently to see the parole board.

“This court sentenced the defendant to life in prison, with the possibility of parole after serving 25 calendar years. This minute entry will serve to notify all involved that under the law, although currently not eligible for parole consideration, the defendant will be eligible for parole consideration after serving 25 years.”

The general counsel for the Corrections Department responded, “Truth in Sentencing came into effect on January 1, 1994, and there was no stated review for release from a life sentence after twenty-five calendar years. Truth in Sentencing has no mechanism for parole review on life sentences after 25 years.”

Of the defense attorneys interviewed by The Republic, some said they were aware of the misuse of parole but have taken advantage of it, advising clients that there is no such thing, but urging them to accept the plea deal offering it because it is better than facing a jury in a death-penalty trial and because it may someday give them a bargaining edge in getting out of prison after 25 years.

Other defense attorneys denounced it as a prosecutor’s trick, to scare juries into thinking that a craven murderer may someday get out of prison if they don’t sentence him or her to death.

Many others were confused, as if they had used the term “25 to life” generically, without any idea of what happened after the term had run.

Look at the transcripts

Ronald Reinstein spent 22 years on the Maricopa County Superior Court bench and is remembered as an excellent trial judge. After he retired, he went to work for the Arizona Supreme Court as a judicial consultant, especially on death-penalty and victims-rights issues.

“You have to look beyond the minute entry. It could be an error. You have to look into the record and look at the transcript.”

Ronald Reinstein, Arizona Supreme Court judicial consultant and retired Maricopa County Superior Court judge

“I’m not as troubled as you by the minute entries,” he told The Republic.

“You have to look beyond the minute entry,” he said. “It could be an error. You have to look into the record and look at the transcript.”

In case law, the oral pronouncement in open court takes precedence over the written document.

But that argument cuts both ways. This reporter covered a sentencing in 2010 at which the judge talked at length about a defendant’s slim chance of ever getting parole. But he said it would be available to him.

The minute entry, by contrast, simply said he was sentenced to “life (25 years flat time).”

As a judge, Reinstein sentenced at least eight people to life with a chance of parole, according to minute entries. After speaking to The Republic, he went back and reviewed one of the cases and found the term was included in the plea agreement generated by the prosecutor.

He conceded that a defendant who entered a plea agreement specifying a chance for parole might have more of a chance of staging a legal challenge than someone sentenced after a jury verdict.

That logic was echoed by defense attorneys as well.

“It’s a contract. It’s a deal,” said Kathy Brody of the American Civil Liberties Union of Arizona.

Referring back to the standard language of plea agreements, Brody said, “How can you say it’s a knowing and voluntary decision (by the defendant) if it’s an incorrect sentence?”

And Marty Lieberman, the director of the Maricopa County Office of the Legal Defender, said, "If somebody entered into a plea agreement, they've got a right to the benefit of a contract."

But Lieberman was uncertain what would happen to those who were sentenced to life with chance of parole after a trial.

"Are you ever entitled to an illegal sentence?" his colleague, John Curry, asked. "I think it will come down to the facts of the case."

“I think it’s going to be a case-by-case basis. I don’t know if you’re going to get an answer until one of these cases goes to the Supreme Court and gets a written opinion.”

Mary Jane Gregory, former clemency board general counsel and assistant Arizona attorney general

Barring a class action, however, Reinstein said the cases would have to be considered one at a time on appeal, an opinion echoed by Mary Jane Gregory, a former assistant Arizona attorney general who pondered the question as general counsel to the Clemency Board.

“I think it’s going to be a case-by-case basis,” she said. “I don’t know if you’re going to get an answer until one of these cases goes to the Supreme Court and gets a written opinion.”

High-profile Phoenix defense attorney Larry Hammond, who is involved in the Arizona Justice Project, said, “The right thing to do would be to have a resentencing for all of these defendants, at which time they would be told what the law is.”

That would entail more than 200 resentencing hearings in an already busy court calendar.

Maricopa County Attorney Bill Montgomery thinks the solution is just to admit that the sentences were in error and correct the paperwork.

“I would look at that and say, ‘That’s a mistake.’ Life without release: And then proceed on that statute," he said.

But retired Maricopa County Superior Court Judge Kenneth Fields countered, “Arizona doesn’t have the ability to correct sentences.”

“You can’t have it both ways,” Fields said. “You can’t go back and make (the sentence) more. That’s a jeopardy argument. Usually you have to live with what the judge did.”

Kicking the question down the road

State courts, however, have been hesitant to acknowledge the conflict.

Jesus Godinez and a fellow gang member drove to a rival gang party in south Phoenix in 2008 and started a shootout. Both were wounded, as were several other party-goers. The friend and one of the rivals died of their wounds.

Two years later, Godinez entered a plea agreement to avoid a capital trial and was sentenced to two concurrent sentences of life with possibility of parole after 25 years. His attorneys took note of the erroneous sentence, and in his post-conviction relief hearing, they argued that he did not enter into the plea “knowingly, voluntarily and intelligently,” because his trial attorney had not correctly advised him that parole was not available to him.

The trial judge denied relief. Godinez took the case to the Arizona Court of Appeals, which concluded that the judge had erred in allowing the terms “parole” and “release” to be used interchangeably. But it gave the judge the option to simply correct the wording in the sentence.

In an earlier case, the appellate court found a problem with the sentence, but sent it back to the trial court to fix.

Darius Agboghidi was just 16 when, in 2004, he and another teen shot a man to death during a burglary. He, too, entered a plea agreement to life with chance of parole. His attorneys argued that he had been misinformed by his trial attorney and that the terms “parole” and “release” were used interchangeably.

The trial judge refused to grant relief. But this time, the Arizona Court of Appeals said that he had a point, though it was not merely being misinformed by his trial attorney.

“Because the potential for early release after 25 years appears to be illusory under current law, Agboghidi’s claim is colorable,” the appeals panel of judges wrote. His case went back to Superior Court and stayed there until 2014, when the trial judge dismissed it because it had since been rendered moot by federal court decisions regarding juvenile murderers with life sentences.

Agboghidi will get his parole hearing after 25 years, but not because a Superior Court judge erred in sentencing him in the first place.

The 'illusory' chance of release

Leave aside the question of parole for a moment.

“The bigger problem is, there’s not a mechanism for reasonable consideration for those people whom the judges decided should have a chance for release,” said Keith Hilzendeger, an attorney at the Federal Public Defender’s Office in Phoenix.

That’s a fact that has chipped away at Arizona’s current sentencing statute in federal court.

Agboghidi’s case was one of more than 70 affected by a 2012 U.S. Supreme Court decision in Miller vs. Alabama. The high court ruled that it was a violation of the 8th Amendment prohibiting cruel and unusual punishment to sentence a person who committed a crime as a juvenile to a mandatory natural life sentence without parole.

The logic followed that of a 2005 U.S. Supreme Court decision barring the death penalty for juveniles: that a juvenile’s brain is not fully developed, leaving him or her impulsive and irrational.

In the Miller case, the high court ruled that life without parole could be imposed only on the “rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.”

A subsequent Supreme Court ruling made the ban retroactive to cases that had already been decided.

When defense attorneys in Arizona first tried to apply Miller to their clients, they were stymied by the argument that Arizona’s sentencing scheme already had an alternative to life without parole, specifically, life with possibility of release after 25 or 35 years.

But the federal court did not agree. The U.S. Supreme Court had specifically referenced parole, and the concept that the actual chance of “release,” as the Arizona Court of Appeals put it, was "illusory."

“If we’re going to use that standard for commutation, it renders release void — because they’re never going to get it,” said Katherine Puzauskas of the Sandra Day O’Connor School of Law at Arizona State University and a former attorney for the Arizona Justice Project.

In 2014, the Arizona Legislature changed the law and reinstated parole for those, like Agboghidi, who were convicted of murder as juveniles and given less than natural-life sentences.

Puzauskas and the Arizona Justice Project lobbied on behalf of the juveniles serving life sentences in Arizona prisons. And a Maricopa County Superior Court judge ruled that they were to be afforded legal relief under Miller and the subsequent rulings.

At first, that affected 73 prison inmates. Remarkably, the post-Miller change legitimized more sentences than it undid.

Forty-one people had been sentenced as juveniles to life with chance of parole, and with the ruling, their sentences became valid. Thirty-two others sentenced for crimes as juveniles, whose sentences had not mentioned parole, will also now be eligible for parole after 25 or 35 years.

The 2014 legislative change did not apply to juveniles sentenced to natural life, meaning they would never be eligible for release.

In December 2016, the Arizona Supreme Court threw out the natural-life sentences of two additional Arizona prisoners who were convicted as juveniles. They sent the cases back to Superior Court for resentencing, with a suggestion to the Arizona Legislature that it amend the law to grant parole eligibility to other juveniles sentenced to natural life as well.

Meanwhile, the federal courts are chipping away at the Arizona life-sentencing statutes elsewhere, most recently a U.S. Supreme Court decision in May 2016 accusing Arizona prosecutors of using the threat of release to scare juries into imposing the death sentence for fear that the defendant will someday get out of prison.

“Under Arizona law, ‘parole is only available to individuals who committed a felony before January 1, 1994,’ ” the court wrote.  “… But under state law, the only kind of release … is executive clemency.”

The Supreme Court justices threw out that death sentence. In December, they knocked down a second for the same reason. There probably will be more to come.

But what of the defendants who were adults when they were sentenced to life with chance of parole? There are still more than 200 Arizona prisoners who were told by a judge that they would someday be granted parole hearings.

“I think the state has to uphold its side of the bargain,” Puzauskas said.

It will likely require a lawsuit.

“I think what will happen is, if a number of people are successful, someone will go to the Legislature,” said Reinstein, the retired judge. “It’s an executive issue to do that or to let them ride one at a time.”

And the suggestion from the Board of Executive Clemency?

"I think the best process is no longer here, which would be parole," said the board's executive director, Ellen Kirschbaum. "It's here for others," she said, referring to the juvenile killers and those convicted before 1994. "It's a fair process."

Wright, the board chairman, agreed.

"I would say at the moment, parole is the way to go."

Arizona's 'dirty little secret'

Venus Lopez and a friend tried to steal a vehicle at a Circle K store near 43rd Avenue and Thomas Road in Phoenix in 2000. According to media accounts at the time, Lopez, who was then 19, pressed a shotgun into the driver’s side and demanded his keys.

But her mother, Sophia Lopez, who was a well-known anti-gang activist at the time, told The Republic recently that there was no gun, and that the car's owner was inside the store when they took the vehicle.

The owner saw them, ran from the store, pulled out a 9mm handgun and emptied a magazine in Lopez’s direction. He missed, and instead, he shot an innocent bystander between the eyes, killing him.

It was Lopez's second armed robbery. According to her mother, Venus started using drugs and going downhill after she graduated from high school and was turned down when she tried to enlist in the U.S. Army. She started getting in trouble.

And even though she didn’t pull the trigger in the fatal shooting, Lopez and her friend were both charged with first-degree murder under Arizona’s felony murder laws. It was a high-profile case because of her mother's reputation as a community activist, and it was prosecuted by the flamboyant and usually successful Juan Martinez.

Venus Lopez was convicted after a trial and she was sentenced to “life with eligibility of parole after 25 years.”

In December she wrote to The Republic.

“I’ll be direct. NO, I wasn’t aware that parole was abolished at the time of my sentencing. Nor did my attorney inform me of this, as he understood that I would have a parole hearing after serving 25 years,” she said.

 “Because of my legal illiteracy then, ‘clemency’ and ‘parole’ were synonymous. I believed I would appear before a ‘board’ who would decide my release.

“Now I am being told the decision to release me will be a gubernatorial decision.

“My quest to clarify what my sentence truly is began in 2008 and continues,” she wrote.

Lopez wrote to her trial attorney, to judges, to officials at the Department of Corrections. So did her roommate, Veronica Torres, who killed a woman in a drive-by gang shooting when she was 14 years old.

“I know it is difficult to get people to care, after all, we made some really bad decisions. It doesn’t mean the justice system should be allowed to perpetuate the practice of revenge or disregard the essence of what justice is, if it even really exists.”

Venus Lopez, inmate

Lopez studied the case law, like the Agboghidi case and Miller vs. Alabama. She talked with her fellow inmates to learn their stories.

“The reality of my sentence was clarified when Miller vs. Alabama was decided and applied to Arizona juveniles serving life without the eligibility of parole,” she said. “This is when I realized that I am undeniably serving a natural life sentence, meaning I am not guaranteed a board hearing of any kind unless I file the paperwork. If I never file I am never released. And if I file for a pardon or sentence commutation (clemency), statistically, in Arizona, it is unlikely that either will be granted because it is a gubernatorial decision.”

Lopez didn’t actually kill anyone; Torres did. But ironically, because Torres was a juvenile when she committed murder, she is eligible for parole under the Supreme Court’s Miller case.

“There are cases that have challenged this sentencing scheme based on pleas taken that gave the impression parole was a possibility,” Lopez continued. “It’s a fact that much of the legal committee, lawyers, prosecutors and judges did not fully grasp the meaning of this sentencing scheme.”

“The abolishment of parole and what that meant to those sentenced to ‘Life’ after 1993 is now being called Arizona’s ‘dirty little secret’ among the legal committee. Why? Because they know the law is vague, no process was established on how these cases would be handled 25 years later, and the probability of release is not probable statistically.”

“The sentencing scheme for felony murders is an issue in itself because we did not commit murder. The psychology associated with the intent to kill versus the intent to steal is significantly different and does not warrant a life sentence, which is what Arizona law allows.”

“I know it is difficult to get people to care, after all, we made some really bad decisions. It doesn’t mean the justice system should be allowed to perpetuate the practice of revenge or disregard the essence of what justice is, if it even really exists.”

Reach reporter Michael Kiefer at 602-444-8994 or


Murder by Proxy

Publication: The Arizona Republic
Publication date: Sunday, August 28, 2016

A car chase, a shooting and 'murder by proxy'

Jessica Hicks' boyfriend was shot dead by police; she's facing life in prison

Michael Kiefer


Jessica Hicks never killed anyone, but she has been sitting in jail for more than two years, awaiting trial on a first-degree murder charge.

She was living a transient's life with her boyfriend, Craig Uran, a known car thief with a string of weapons charges.

A Phoenix police officer killed Uran. Under state law, because she was with him at the time, Hicks can be held responsible for his death and can be sentenced to life in prison.

It's a sordid story, involving seemingly disposable people.

It began on March 18, 2014, when a Phoenix officer spotted Uran and Hicks at a motel on Interstate 17 as they got into a pickup truck Uran had stolen.

Uran pointed a gun at the officer, police said, and the chase was on.

They careened and swerved on the freeways and onto service roads, and by the time the pair reached central Phoenix, a squad of marked and unmarked police cars and an armored mini-tank were waiting for them.

Uran pulled into the parking garage on Jefferson Street between First and Central avenues in the commercial development known as CityScape.

It was about 11 a.m., and people were milling on the sidewalks.

Inside the garage, Uran carjacked a woman. Whether Hicks was helping him or just going along to stay alive is in dispute. Uran told the victim he had a gun. Hicks helped him wrestle away her keys, and they took her Ford Escape. Then they screeched out of the parking garage and turned east on Jefferson with the rear window bouncing open.

The Escape was immediately rammed by the police mini-tank. It spun around and catapulted over light-rail tracks and onto the sidewalk in front of the Subway sandwich shop in the historic Luhrs Building. Uran gunned the engine as people scrambled out of the way.

Two officers in pickup trucks tried to ram the Escape. The second one struck, rattling Uran and Hicks.

The little SUV's airbags blew. Its tires went flat. The car stopped.

Nearly 60 seconds later, a police bullet tore through Uran's skull, killing him instantly.

Police pulled Hicks out through the passenger-side window, cuffed her and took her to the ground, hard.

She was charged with auto theft, armed robbery and first-degree murder — Uran's murder — because under state law, if someone dies while you are committing certain felonies, you can be held responsible, regardless of who did the actual killing.

Police spokesmen told the media that they had to shoot Uran because he had refused to follow directions to surrender, that he had ducked as if to pick up a gun off the seat or the floor.

At the time, they would not provide the shooter's name, telling The Arizona Republic that the officer was a "victim."

In the probable-cause statement filed in court at the time of Hicks' arrest, police wrote, "A police special assignments officer, fearing for the lives of bystanders, fired his rifle 1 time striking and killing Uran."

Yet there are many questions that remain surrounding the shooting.

In one cellphone video taken by a witness and reviewed by The Republic, three police snipers can be seen taking cover behind one of the pickup trucks and pointing their rifles.

According to police records, David Norman, the officer farthest to the right, squeezed off the fatal shot. And on close examination of the video, a small white spot — presumably, the spent cartridge — can be seen flying from Norman's gun stock and over his shoulder.

At the same instant, another of the officers reaches to adjust the scope on his rifle with his left hand, and before he gets that hand back to the gun barrel, his arms jerk in a way that makes it appear that his weapon has discharged. The officer then looks to the fellow officers at his side. One Phoenix police source told The Republic that the officer was startled by the shot, but did not say why.

Norman unequivocally told The Republic that he, and only he, took a shot.

"This is a really cut-and-dry kind of shooting," he said.

But Phoenix police have not released a report on the internal investigation of that shooting to Hicks' defense attorney or to The Republic.

There was a second bystander video: two police officers subduing Jessica Hicks, bending her first to her knees and then to the ground. She is not resisting.

Suddenly, a third officer steps in and grabs Hicks by the back of the neck. He slams her forehead into the ground and leans his weight into her, grinding her face into the pavement.

There was no firearm found in the Ford Escape. Police found it on the floor of the stolen pickup truck in the CityScape garage. It was a pellet gun.

An unsympathetic duo

Neither Jessica Hicks nor Craig Uran is a sympathetic character. She was 23; he was 26. They were transients who lived to smoke meth.

Hicks' problems began when she was 15. Her stepmother suffered from multiple sclerosis and cancer, and Hicks took some of her pain medication to school. She shared it with another teen, who became sick. And at that point, according to her father, Eric Hicks, state Child Protective Services became involved in their lives.

Jessica was taken away. Her father was branded as violent after shooting some of his neighbor's horses that he claimed had come onto his north Scottsdale property and trampled one of his other children, breaking her leg.

Jessica went in and out of group homes. She took up with an older man and got pregnant twice. She lost herself in drugs. She first went to jail in 2012, after being arrested and charged with possession of black-tar heroin. She was sentenced to probation. But after her arrest, she told police, she continued to use heroin and methamphetamine, and she had drugs in her possession when she was arrested the day Uran was shot. She eventually lost her first two children to their father.

Then she took up with Craig Uran.

"The first time I met him, he pulled a gun on me," Eric Hicks said.

He had come to rescue his daughter from Uran. In a scene that presaged his final day on Earth, Uran pointed a gun at Eric Hicks, and then, as the elder Hicks drove away, Uran swerved around him, pulled in front of him, slammed on the brakes and acted intimidating.

"He's done that more than once," Eric Hicks said.

The father said he rescued his daughter several times. She would call him and ask him to come get her. There would be a confrontation with Uran. But then, she would inevitably go back to Uran.

Eric Hicks said Uran even stabbed her while she was pregnant. She gave birth to her third child on Dec. 24, 2013, just three months before she went to jail again.

Hicks' last Facebook post before her March 2014 arrest said, "Why, God why can't things be better, and why can't I get my head out of my ass when they do get better I don't get it."

In between the usual selfies, some of them in her underwear in front of a bathroom mirror, wearing dark eye makeup, her hair cut bluntly, she laments not being able to see her children on a regular basis. She apologizes to her father for the trouble she has been in.

"Wish he knew how much I really envy, admire and love him. I just don't know how to fix the problem and turn me back to who I was," she wrote.

Occasionally her father chimed in with advice. On Jan. 3, 2014, she wrote a plaintive post to someone else.

"You promised me everything was gonna be ok. ... You promised me you wouldn't leave and that you loved me, you also promised that you would make sure I was safe and my heart would be within arm's reach. You broke all those promises. ... U have officially helped cuz now what can you do when your there and I need to be saved from myself, huh, Craig Uran."

Uran responded with one word: "Blaahh."

A rebel without a clue

Mug shots, Facebook selfies and arrest reports suggest Uran was relatively short and relatively heavy. He sported a little mustache. He had black tattoos on his arms, back and chest. Across his shoulders, in 4-inch-high Gothic letters were the words "Crazy Craig." His Facebook posts, which end in 2011, are mostly bloated, angry and illiterate.

"peeps here in ohio just don't know my status," he wrote that December. "az peeps let em know what im about !!! the biggest peeps out here haven't pushed what ive pushed within a 4 hour drive ! people just don't know ! listen u may learn something ! attention is the key ! im only lookin out ! been there done it ! shed blood for it got ink to prove it ! with a paper trail from the scum that disrespect the code of honor !!! stay by my side & youll last the long roads of hell ! it is the key u here! C is here if ur down ! but show me some damn attention ! I offer & get shut down & silence witch I did ! where u at !"

Uran had a long rap sheet of traffic offenses. He had been sentenced to prison three times.

In April 2005, he stole a car and was sentenced to 31/2 years. Before he even went to prison, he was arrested again in connection to a drive-by shooting. He had been out of prison for less than a month in 2008 when he was arrested for aggravated assault and misconduct with weapons, on suspicion of punching a man in the face and firing a weapon into the wall of the house where he was staying.

He was released from prison again in August 2011.

Early in 2014, he was back in trouble, arrested on an outstanding warrant at a motel on I-17, where he was staying with Hicks. Police found a large knife in his possession, as well as ammunition, but no gun. He was again charged with misconduct with weapons because, as a felon, he was prohibited from having them.

That charge was dismissed on April 14, 2014. Uran was already dead.

A fatal mistake

Uran thought he could drive like Steve McQueen, but his last day alive was not so much a McQueen movie — more like "The Blues Brothers," or perhaps the final scene of "Butch Cassidy and the Sundance Kid."

Hicks and Uran were staying at a motel near 20th Avenue and Van Buren Street on March 17, 2014, she would later tell detectives.

They were driving around, and she said she jumped out of the Honda that Uran was driving near I-17. Hours later, he returned and found her in the same neighborhood, except he was driving a gray Dodge Ram pickup truck he had stolen sometime between 2 and 5 in the morning. The ignition lock had been broken off.

She said he pointed a gun at her. Hicks told police she got in the truck because Uran was schizophrenic and bipolar, and she was afraid she would be beaten because he treated her like "a security blanket."

As they drove around through the morning of March 18, Hicks said, Uran realized they were being followed by a police officer in an unmarked car.

At that moment, Uran made his first fatal mistake: He pointed the pellet gun at the officer. The officer had no idea whether it was a real gun.

Thus, many of the police reports from that day do not refer to investigations of auto theft or carjacking or murder. They reference officers joining an investigation of "aggravated assault on a police officer."

Point a gun at police, and the whole force will come after you.

The officer later said in his interview with police investigators that when he started to follow the gray truck, the driver made a U-turn and pointed a pistol at him as he sped off in the other direction, first through a neighborhood and then south on I-17. Hicks said Uran was smoking meth as he drove.

A group of gang-crime detectives joined the chase and tried to pull him over. He took off, according to police reports, driving down dirt roads, going around barriers, swerving from the HOV lane to the right-hand shoulder and barely avoiding collisions.

More and more officers joined the chase.

The officer who drove the mini-tank, called a Bearcat, was monitoring radio traffic from an office near Third Avenue and Washington Street. He asked if he could step in.

Police officers undergoing training exercises near downtown Phoenix showed up, too.

Uran sped into the parking garage at CityScape. If he and Hicks had just left the truck there, they might have escaped. Instead, Uran stopped with his lights on next to the Ford Escape. He never even turned off the ignition.

Uran screamed at the owner to get out of the Escape. When she did, she took her purse and car keys with her. Hicks and Uran chased her down and wrestled with her. Hicks later claimed she only helped Uran get the keys to keep anyone from being hurt.

The driver surrendered the keys. Then, as Uran and Hicks sped out of the garage in the stolen car, Hicks threw the victim's purse out the window.

Police were waiting outside in force — 70 to 100 of them, according to witness accounts. Uran drove right through the parking-garage gate, breaking it off. He was driving so fast the Ford became airborne as he swerved onto Jefferson Street.

The Bearcat struck quickly, hitting the Escape on the rear driver's side, which propelled the SUV across two lanes of the street, then made it boomerang up and over two curbs of the light rail and the sidewalk. According to reports, a bystander told police he saw Hicks in the car and "she appeared to be holding on and was scared."

Police reports detail witnesses seeing people fleeing into doors and alcoves on the sidewalk. Witnesses told The Republic that day how they had pulled people into the Subway restaurant to get them out of the way, seconds before the Escape came to a halt there.

An officer in a pickup truck tried to ram the car on the sidewalk but was stopped by the light-rail berm. A second, larger pickup crossed the curb and hit the car on the passenger door, where Hicks was sitting.

The car stalled. Its air bags deployed. The tires were flattened.

Four Special Assignments Unit officers took cover about 20 feet away from the disabled Escape, behind the second pickup that had rammed the car. One was ordered out of the way by Norman, who took his place. Another stepped back.

Bystanders said they could hear officers shouting, "Get out" and other orders, but whether Uran could get out even if he wanted to is questionable. The air bags had deployed, and the driver's-side door could only open about a foot because it was so close to the building.

One witness, who asked not to be identified, said he watched Uran and Hicks through the windshield.

"I could see them rattle around from being rammed, and then I could see they were not moving whatsoever," he said. "No one was moving in that vehicle. I thought they were potentially unconscious."

Then, after a long moment, a shot rang out, and he assumed it was "an officer taking tactical steps toward the car," a description that matches Norman's moves in the video.

Right before, according to the police report, a Phoenix police lieutenant approached the passenger side of the Escape with his gun drawn, made eye contact with Uran and ordered him to put his hands up. Uran did for a moment, then reached back to the steering column to try to restart the car, or, as the report said, "may have been reaching for a gun."

The lieutenant did not shoot, however. When he heard the "pop," he did not know who had fired.

Norman's account also has Uran raising his hands briefly, then leaning over "very deliberately" toward the passenger side of the car.

Hicks told police that Uran tried to restart the car. Then, she said, he uttered his last words: "I don't know what to do, Jess."

The bullet tore through Uran's skull and lodged behind his left eye.

Customers cowering inside the Subway snapped pictures of the body, slumped in the front seat, blood dripping from his eye socket, literally a foot away from the restaurant's front doors.

In the exact same instant, the Bearcat ran over the foot of an officer crouched behind a squad car, pinning him against the hood of his vehicle. The Bearcat backed up and the officer fell to the ground.

The officers next to Norman, including the one whose gun appeared to discharge in the bystander video, later wrote in their reports or told detectives in interviews that they had Uran in clear view through the open rear window of the Escape. They also said that he seemed to lean over as if grabbing something from below, possibly a weapon. It was in that moment, they all said, that Norman fired.

But there was no weapon to reach for. It was on the floor of the truck Uran had left, with its engine running, in the parking garage.

Police cut through the air bag blocking the broken passenger window and pulled Hicks out. She immediately told police that she had been forced into the car.

Although police reports say Hicks was resisting, or "somewhat resisting," witnesses told investigators she was not.

One officer tells of assisting in taking her down because she was "flailing her arms."

In the witness video, she does not appear to be resisting. Rather, she appears to be handcuffed as one male and one female police officer start to bend her forward to take her to the ground.

Then a third, male officer, in a bulletproof vest and carrying an automatic weapon, steps in. When Hicks is already on her knees and about to be laid prone on the street, the third officer grabs the back of her head and pushes her face down so hard that, in the video, he can be seen compressing her forehead. The officer puts his weight on his arm and rolls and grinds Hicks' face into the pavement.

Uran was left sitting in the driver's seat of the Ford Escape. Officers covered the windshield with a tarp.

On officer-involved shootings

Maricopa County law-enforcement officers shot 40 people in 2015 — nearly one a week — and 23 of them died, according to the Maricopa County Attorney's Office. This year, as of Aug. 19, there have been 29 shootings by police, 19 of them fatal.

During the same period, from January 2015 to Aug. 19, there have been 10 fatal police shootings in New York City and 14 in Chicago, compared with the 42 in Maricopa County, according to a database of officer-involved shootings compiled by The Washington Post.

Whether an officer-involved shooting is "justified" is a question of whether it fits within allowable parameters under state statute — though other law-enforcement officials, including from the same agency, make the assessment. The Maricopa County Attorney's Office then reviews the in-house investigation.

The officer is given the benefit of the doubt in his or her instant judgment during an emergency.

In July 2014, the Maricopa County Attorney's Office reviewed the Phoenix police investigation of the CityScape shooting and determined that "Officer Norman did not commit any act that warrants criminal prosecution."

It is clear from video of the shooting obtained by The Republic that the scene was chaotic in those moments before Uran died.

An officer wearing a white baseball cap moves into place behind the gray pickup truck that rammed the stolen Ford Escape. He points his M-4 rifle, then takes his left hand off the gun barrel and places it momentarily on the rifle's scope. The gun appears to go off before he has a chance to aim. The officer in the baseball cap then looks in Norman's direction.

It is a marked jolt that people familiar with firearms took for an accidental discharge. A lieutenant from the Phoenix police Internal Affairs Department thought so, as did a private investigator who specializes in shootings, and also retired Maricopa County Superior Court Judge Kenneth Fields, who was an Army Ranger in Vietnam and a federal prosecutor.

At the same instant on the video, the Bearcat pins another police officer to a squad car. The armored car backs up and the officer falls to the street.

"Bad training. Bad leadership. Who was in control?" Fields asked after reviewing the video. "No one was in control.

"This is not a combat zone," Fields continued. "Their job is law enforcement. They're not given free rein to shoot anyone they want."

Phoenix police stand firm, however.

"There is no evidence to support a second shooter or an accidental shooting," Phoenix police spokesman Sgt. Jonathan Howard told The Republic.

When asked if he was the shooter, Norman point-blank told The Republic, "Yes, sir, I was."

Norman also told The Republic he was the only officer who fired.

A source inside the Phoenix Police Department told The Republic what appeared to be an accidental shot from the officer in the white cap was actually the officer flinching because he was startled by Norman's shot. None of the other officers fired, including the police lieutenant who made eye contact with Uran.

"Usually, in that situation, those officers are communicating verbally to each other," said Mike Clumpner, a South Carolina police SWAT team member with a Ph.D. in homeland security. "But when the decision is made to shoot, it is such a fluid situation."

And national standards for SWAT teams recognize that officers may have to step outside of lines of authority to respond to the crisis at hand. "We are always under standing orders to stop perceived immediate acts of violence," Clumpner said. "We are always under orders to neutralize the threat."

Norman told The Republic that it was a "very dynamic incident. I just responded and ended things and did my job."

"How they want to charge her is not my decision," he said.

But other details are fuzzy in the police report, such as the weapons the officers held.

For example, in a narrative Norman gave to detectives, he is said to be carrying a type of rifle called an AR-15. Later in the report, when Norman's weapon is checked, it turns out to be an M-4.

Hicks' defense attorney, Jeffrey Swierski, asked to have his experts examine the guns, but was told in an email by the prosecutor Aug. 15 that "those weapons were inspected, tested, photographed and released back to the respective officer. There were no weapons impounded as part of the investigation."

The Republic has requested the Professional Standards Bureau report on the shooting, an internal investigation that might shed more light on events. It was redacted and forwarded to the Phoenix Police Department Public Records Division, which then said it needed further redaction, with no explanation other than that it was going to take a long time.

The official police report states that one bullet was missing from Norman's ammo clip. An expended cartridge was recovered from the light-rail tracks.

But the police report said the cartridge could not be matched to any officer's gun.

On felony murder

Felony first-degree murder is charged when someone dies during the commission of certain felonies, regardless of who kills whom. The minimum mandatory sentence is life in prison with no chance of release. Prosecutors may also seek the death penalty but are not doing so with Hicks.

In most felony murder cases, the person who committed the so-called predicate felony also committed the murder, but the evidence does not indicate that it was premeditated — a bank robbery gone bad, for example, where the robber is challenged and shoots in an attempt to evade arrest. Or it could be an accomplice in the bank robbery who is helping carry out the crime when someone else does the killing. Both are culpable.

Sometimes prosecutors will charge both premeditated and felony murder to help ensure conviction. First-degree murder jury verdicts have to be unanimous, but if half of the jurors think the crime is premeditated and the rest think it's felony murder, the verdict is still considered unanimous.

More rarely, as in Hicks' case, felony murder is charged against an accomplice when one of the criminals is killed by police or by accident.

Technically, even if the police and the Maricopa County Attorney's Office found that the shooting was accidental or unwarranted, they could still charge Hicks with Uran's death if they could prove there was a qualifying felony in progress when he died. Armed robbery and flight from law enforcement are both qualifying predicates for charging felony murder. Prosecutors have discretion to charge to the max and then leverage plea agreements. If there is no such plea, the jury's verdict would then hinge on whether Hicks was an active participant in the felonies and whether the felonies were still in progress when Uran was killed.

Witnesses told police that the shooting took place 40 to 60 seconds after the Escape came to a stop. The ramming by the Bearcat and the pickup trucks probably took 10 seconds.

"The armed robbery was over, and there was no killing during that armed robbery," Fields, the former Superior Court judge, said after seeing the video. "The event was over. It was during the arrest that he was killed. There was not a murder that occurred while the felony was being committed."

"As a prosecutor, I wouldn't touch this," he said. Or, he said, he would plead it down to a lesser offense.

David Derickson, another former Superior Court judge who is now a defense attorney, said, "The case can still go forward" because Uran died and Hicks was an accomplice. Then he added, "All this evidence is going to be heard by a jury."

But two years after the incident, all the evidence has not been disclosed.

Norman's statement about the shooting, and any shooting investigations, were absent from the materials initially turned over to defense by the case prosecutor during the discovery stage. The Republic obtained those materials through public-records requests.

The Professional Standards Bureau investigation has yet to be turned over.

Nor has the defense been allowed to examine the car in which Uran died.

On July 21, more than two years after the shooting, prosecutor Ed Leiter finally informed Hicks' attorney, Swierski, that the car had been returned to its owner's insurance company and was unavailable.

As for the officer slamming Hicks' face into the ground, both former judges said they were appalled. "I don't think there's anything that shows he needs to be involved in that take-down," Derickson said. "That's assault."

The official Phoenix police response on whether Hicks was abused: "It's hard to tell," police spokesman Jonathan Howard said.

In late June, Leiter offered a plea deal: If Hicks pleaded to manslaughter, he would ask for seven to 101/2 years in prison. Swierski wanted time served. There was no deal.

At a hearing Monday, which was Hicks' next court appearance, Leiter told Superior Court Judge Joseph Mikitish he was making counteroffers to Swierski.

Until then, Jessica Hicks still faces trial for first-degree murder.






Publication: The Arizona Republic
Publication date: Tuesday, October 4, 2016


Woman charged in 2014 police shooting agrees to plea bargain

Michael Kiefer


A woman charged with first-degree murder after a 2014 police shooting in downtown Phoenix entered into a plea deal that will keep her in prison for five years instead of the life sentence originally sought by prosecutors.

In March 2014, a car thief named Craig Uran pointed a pellet gun at a Phoenix police officer, then led officers on a chase to the downtown retail development called CityScape, where he carjacked an SUV.

A police tank and two unmarked police vehicles rammed the stolen vehicle on a busy city street shortly before the lunch hour, and seconds later, a police sniper shot Uran dead.

Uran's girlfriend, Jessica Hicks, was in the vehicle with him at the time. She claimed Uran had forced her to go with him, though the owner of the carjacked SUV claimed Hicks was an active participant. Police pulled Hicks out the window of the wrecked car and slammed her face-first into Jefferson Street.

Hicks, 26, was charged with first-degree murder under Arizona's felony murder law, which allows a person to be charged with murder if anyone — even an accomplice — dies during the commission of certain felonies.

The police shooter and some of his fellow officers told investigators Uran appeared to reach for a weapon he no longer had. Other witnesses claimed Uran was not moving or that he had his hands in the air.

In late August, The Arizona Republic reported that police and prosecutors had still not provided full police accounts about the shooting to Hicks' defense attorneys.

The Republic was able to obtain those reports under the Arizona Public Records Law. They revealed multiple discrepancies.

Only weeks before, prosecutors admitted to Hicks' attorney that neither the death car nor the police weapons were available for defense experts to examine.

The Republic also obtained videos that police and prosecutors were unaware of, showing the shooting and the use of force on Hicks.

On Monday, the Maricopa County Attorney's Office entered into a plea deal with Hicks for substantially less-serious crimes.

Hicks pleaded guilty to armed robbery and automobile theft in exchange for a five-year prison sentence. Because the offense was designated "non-dangerous," a legal distinction that affords some leniency, she might only have to serve 85 percent of the sentence, or four years and three months.

Hicks already has been detained for two years and eight months, meaning she could be released as early as June 2018. She also must serve an as-yet undetermined term of probation.

Hicks will be sentenced Nov. 8.


Bonnie and Clyde for the Millenials

Publication: The Arizona Republic
Publication date: Sunday, January 17, 2016

Lured by easy money, trio ran afoul of the law – and are paying the price

Michael Kiefer


Youth, looks, money: They say you need at least two of those qualities to live life in the fast lane.

Billy Brymer had all three.

Also, he was smart, and the boy knew how to talk.

"I just like money and research everything I can do to make it without working," he once texted a friend. "I'm a mastermind at making money without doing s--t. Write an e-mail, make a phone call and come up with 10k."

Never mind that none of it was legal.

He was big and buff, 6 feet 4 inches tall and 240 pounds, a weightlifter who used and sold steroids. And though he was only in his early 20s, he had a luxury apartment in Tempe and a fast car.

The women noticed, and the men were filled with envy.

Jillian Bagley was just 19, an artist studying design at Arizona State University and waiting tables to make ends meet. She liked glamour. She needed a place to live.

Joel Thomas was 21, finishing up a dual-degree program at ASU, working 30 hours a week at a bank and caring for his 12-year-old sister.

They both fell under Brymer's sway.

"Whatever he told her to do, she would do it," Thomas said of Bagley in an interview with The Arizona Republic.

She became a Millennial Bonnie to Brymer's 21st-century Clyde.

In Thomas, they found a sidekick.

Bagley said Thomas was wowed by Brymer when they met at a party.

"You've got money, you've got women," Bagley describes Thomas as saying.

And she said Brymer responded, "Well then, you're ready to get started."

They started in August 2011 and by the end of February 2012, Brymer and Thomas, working with a host of stooges and flunkies, including Bagley, stole or scammed nearly $380,000 from banks where Thomas worked, according to court records.

That was their undoing.

"It's a tough crime to get away with," an FBI agent told The Republic.

And they all were sentenced to prison.

Brymer never spoke to The Republic. His lawyer said he shouldn't. He doesn't show up in the prisoner locator systems; the FBI agent said that he is in federal protective custody.

Thomas still denies conspiring with Brymer.

"It's all on him," Thomas said. He says Brymer was just a big flamboyant guy he knew from parties.

"Billy Brymer didn't even know where I lived," Thomas told The Republic in an interview in jail.

Bagley was labeled a getaway driver in one bank job. She claimed she was just along for the ride.

"I didn't think I was in trouble," she said, "even up to the point where I was arrested and indicted."

But she did 31/2 years in jail and federal prison and still has to serve stints in a halfway house.

Brymer had the good luck — and the good lawyering — to get a plea deal with only a 12-year sentence.

But Thomas, the alleged inside man, went to trial and was sentenced to 49½ years in federal prison, which he is appealing. He still has to stand trial in state court for bank fraud.

Sometimes, the fast lane ends in unexpected exit ramps.

Billy Wayne Brymer:

A smooth talker

Billy Wayne Brymer III told different stories to different people. He would say he was a student, or an e-trader, that he sold real estate or played for the Arizona Cardinals.

This portrait is drawn from court and FBI records and interviews with people who knew him well.

He was a smooth talker. He saw vulnerabilities, and he capitalized on them.

One scam was to get strippers to harvest credit-card numbers and security codes from unsuspecting clients.

According to court records, he gave his pitch in 2012 to a person he was trying to pull into the scheme, saying that each girl who stole credit-card numbers would make $1,000 in her first week and the go-between would make $200 to $500 for each girl recruited.

"I've been doing for 3 years (sic) and I've made a little over 800k just so you have an idea of the money that's made doing this," he wrote in a text message captured by FBI agents.

Like a modern-day Fagin from "Oliver Twist," Brymer enlisted homeless teens in Tempe and had them open bank accounts. Then, using a Square reader, of the sort plugged into a phone or tablet to make charges on credit cards, he would drain money from the bank accounts and let the "bums," as he called them, keep a pittance.

The bums had to call Brymer "boss," according to Bagley and to court records, and Bagley said they were told not to talk to her.

One of the homeless teens, who was sentenced to prison for his participation, said that "someone" driving a BMW gave him $500 so he would have a place to stay.

"The defendant was told that someone from Mexico wanted to use his account to wire money from Mexico," one investigative report said. "This person could not do it himself because he did not have a green card."

Jillian Bagley:

Met Brymer at Hooter's

Jillian Bagley grew up in the West Valley. She met Brymer the day before her 19th birthday in July 2011, while she was working at a Hooter's restaurant.

She waited on his table, and he left her a $50 tip.

A few minutes later, he came back into the restaurant and told her he needed his $50 back. When she gave it to him, he handed her a $100 bill instead.

Two weeks later, she said, she was living in his 900-square-foot, 18th-floor apartment in the Tempe Towers complex.

Brymer would wake every morning before she did, buy her breakfast from a takeout stand and then drive her to class in his Beemer or new Camaro.

"He treated me like a princess," she said in an interview with The Republic.

Bagley thought Brymer went to college, but she didn't know where. She said she assumed he had family money, and lots of it. In fact, he was the son of a small-time shyster with felony convictions for assault and drug offenses who was mysteriously shot to death in front of his Laveen home in 2013, shortly after Brymer, his son, entered into his plea agreement.

Bagley began to wonder who she was living with. She wondered what Brymer did to have so much money.

Then one day she asked.

"I know it's none of my business, but what is it?"

He told her that he would call people on the phone, claim he was raising money for breast-cancer research and then take their credit-card numbers, she said.

"I just wanted to ignore it because I needed a place to live," she said.

After about a month, Bagley said, she tried to leave. Brymer took her cellphone and hid it; it was later found on top of a tall refrigerator where she couldn't see it. He convinced her to stay.

"It didn't feel stable, like maybe the cops would bust in the door any day," she said.

But she gave in.

"I just turned a blind eye," she said.

Then Brymer ran into Thomas.

Joel Thomas:

Caring for 12-year-old sister

Joel Thomas was 21, living in El Mirage and caring for his 12-year-old sister because their mother was on active duty in the U.S. Navy.

He was also attending ASU, working on dual bachelor's degrees in justice studies and criminal justice, and working 30 hours a week at a Wells Fargo bank in Surprise, he said. He wanted to go to law school and was preparing to take the LSAT exam, a law-school prerequisite.

Thomas claims he knew Brymer from high school and saw him at a party he only attended because he had just split with his girlfriend.

"He was a big dude, hard to miss," Thomas said in an interview with The Republic.

Thomas, by contrast, is short but muscular, a round-faced young Black man. (Brymer is White; Bagley, of mixed race.)

Thomas denies associating with Brymer outside of the party scene, but the record suggests otherwise. (And his appellate lawyer says Brymer extracted information from him.) They went shopping for guns together, according to court records, for example.

According to police and prosecutors, Thomas helped Brymer by singling out vulnerable Wells Fargo accounts and then feeding the information needed to pillage them.

"Hey and try to get as many card numbers with security codes that you can because I can set up a square account for the bums and get 4k a week," Brymer wrote in a text to Thomas in September 2011. "Even if a person only has a thousand or two still try and get the info."

Thomas texted back: "Okay I'll work on that I have to be careful if all the fraud is coming from ppl coming in here."

And people did notice.

A presentence report for one of the "bums" described how Brymer and Thomas exploited a 97-year-old woman. She thought it strange that Thomas, a teller at her bank branch, was overly friendly to her when she came to his window.

"Shortly thereafter, she stopped receiving bank statements," the report said. The woman, "who still balances her checkbook, called the bank. Once she received the statements she noticed someone had made several withdrawals from her account without her permission, totaling $55,000."

In a text exchange with Brymer, Thomas wrote, "And that lady with 100k we are going to do everything!!! Lol."

Brymer replied, "Yea...I'm even gonna go to her house and rape her."

Between Aug. 23 and Dec. 30, 2011, Brymer and Thomas' bank scheme took in $124,405, according to court records.

But Thomas had come under suspicion and was fired. He was hired as a teller at a Chase bank in Peoria.

On Dec. 26, 2011, Thomas and Brymer exchanged texts about ways to keep the money flowing in without including so many other people, according to Brymer's sentencing memorandum in federal court.

"Within a few weeks, they committed their first bank robbery," the memorandum says.

Jan. 21, 2012:

'Let's do it!'

Bagley told The Republic she thought she was going out to lunch with Brymer, her cousin and her cousin's friend, when one of them said, "Let's do it!"

It was Jan. 21, 2012, and "it" on that day was robbing a Wells Fargo bank in Surprise.

Jillian's cousin, Daniel Bagley, had become friends with Brymer; he and Jeffrey Edwards, his sister's boyfriend, had just shown up at Brymer's Tempe apartment, where Jillian Bagley lived. Then they set out for lunch, she said.

Jillian Bagley said she was told to wait in her cousin's car in front of a pharmacy a few blocks from the bank.

Edwards went in first and pulled out his gun. Daniel Bagley was supposed to follow him in and back him up, but he panicked and turned and ran, nearly running into Brymer, who assumed the robbery was done.

So instead, according to Jillian Bagley, Brymer pulled his gun on a customer at the ATM and took his money.

Edwards, meanwhile, could not get anyone to open the bank vault, so he turned to the tellers and took nearly $7,200 in cash.

The three rejoined Jillian Bagley. And then they all went to lunch, she said.

The second bank job went even worse.

On Feb. 25, 2012, Brymer recruited two of his Tempe "bums," and drove them to a Safeway supermarket in Surprise that had a Wells Fargo branch inside. The robbers did not even know Brymer's name, referring to him only as "boss."

One of the two was afraid to go through with the robbery. The other marched in and handed a note to a teller, who handed him $1,687 and then hit the panic button. Both men ran to Brymer's car and took off. Brymer gave one of the men $60 for his efforts.

Girl Scouts selling cookies outside the store gave descriptions to the police.

It was not a successful heist. When none of the bums was available for the next job, court records say, Brymer and Thomas apparently decided to take matters into their own hands.

Feb. 29, 2012:

Things begin to go wrong

Thomas had been working at the Chase bank in Peoria for about two months. On Feb. 29, 2012, he was scheduled to help open the bank, which is a two-person job.

According to an FBI deposition in the court records, here is how the final bank caper played out:

Thomas met the bank manager there at 7:30 in the morning. His task was to stand outside while the manager went in and swept the bank to make sure no one was inside. Thomas was supposed to watch for suspicious activity at the ATM and signal the manager if there was a problem.

Brymer was at the ATM, wearing a gray hoodie sweatshirt. Thomas said nothing. When the manager signaled for Thomas to come inside, Brymer made his move.

Thomas did not even pretend to stop him.

Brymer pushed through the door and the manager was not strong enough to keep him out. For some reason, Brymer waited until he was already inside before pulling a ski mask over his face. The manager got a good look at him. Brymer drew a 9mm hand gun, pointed it and said, "Don't do anything stupid because I'm willing to kill both of you and kill myself."

He demanded to be taken to the vault; it took two keys to open it, and the manager and Thomas then shoveled cash into the black duffel bag that Brymer had brought with him.

Then Brymer asked to get to the tellers' money; Thomas opened his "cubbie," and gave him a bag with the cash that would have filled his till at his window. Brymer demanded money from the ATM and the manager said he couldn't get into it.

But Brymer already had stuffed $246,000 into the bag.

He carried a walkie-talkie and asked into it if any police were in the neighborhood. The voice on the other end belonged to one of Brymer's weight-lifter buddies, Ernie Lerma, who answered, "No." Lerma would be the getaway driver.

Brymer then told Thomas and the manager to go into the bathroom, lie down on the floor and wait five minutes until he was gone.

A minute later, the manager called police.

Thomas claimed to be a victim of the robbery, but authorities found his story to be fishy. And when Peoria police showed up, one of the officers took the others aside and told them he had an open investigation implicating Thomas in fraud at the Wells Fargo bank. Furthermore, Thomas had an associate named Billy Brymer, who fit the description of the armed robber.

The FBI was called in, and when the agent looked at surveillance video of the robbery, he immediately picked out fatal errors.

When Brymer was pushing his way through the front door, "Joel just stands there with his hands at his sides and doesn't even try to help his managers," FBI Special Agent Lance Leising told The Republic. That, Leising said, could be a shock reaction.

But then, Leising noticed that Brymer had let Thomas walk behind him while he pointed the gun at the manager, instead of making them both stay in front of the gun. The robber, in other words, was only concerned about the actions of one of the men he was supposedly robbing.

Thomas told The Republic that the manager sprinted to the vault under Brymer's command and that Brymer followed, leaving him standing behind.

"This dude just pulled a gun on me," he said.

He still maintains that he was Brymer's victim.

But his story about the robbery unraveled quickly, and the hunt was on for Brymer.

Police stop the getaway car,

and let it go

On the way back from the Peoria bank robbery, Lerma and Brymer were pulled over by police on a traffic violation. Brymer did not let on that he was the owner of the car. Lerma was issued a citation for driving without a license or registration. They went back to Brymer's apartment and played video games.

Then Brymer had Lerma drive him and Bagley to a shopping mall to buy a backpack to hold the money. They were recorded on surveillance cameras. Then, as he and Bagley checked into a Scottsdale hotel, Brymer sent Lerma in his BMW to go back to his apartment to dispose of evidence: the gray sweatshirt Brymer wore during the holdup, as well as illegal steroids and syringes.

But police spotted the car and pulled it over. In addition to the illegal drugs, police found the walkie-talkies from the robbery, a stack of crisp bank notes and Brymer's iPhone, according to court records.

Lerma was not arrested. Brymer got his car back. And by the time police came looking for him, he was gone.

That afternoon, Brymer and Bagley went to a dealership in Scottsdale to buy a Porsche. Brymer told the salesperson he played for the Arizona Cardinals and had a trunk-load of money. He wanted to put the car in Bagley's name, but she refused.

Brymer was supposed to throw half of the money into Thomas' backyard, Leising said, but since Thomas was already under suspicion, he told Brymer not to.

Instead, Brymer and Bagley and a friend drove the BMW to Las Vegas, checked into the Luxor Hotel, and went on a shopping spree. Brymer bought Louis Vuitton shoes and a handbag for Bagley, records show. He also bought her a dress and a Fossil watch. They went to see "Peepshow," a striptease revue at Planet Hollywood.

"The money just didn't feel like mine," Bagley said.

She returned to Tempe, and Brymer stayed behind.

But the FBI was on to him. They had a woman call him to lure him out of the hotel, and they arrested him. He had more than $100,000 in his possession, according to court records.

Bagley was arrested in Tempe.

Joking about Bonnie

and Clyde on Facebook

Bagley was released on her own recognizance, charged with armed bank robbery and aiding and abetting. But she didn't think she was really in trouble.

"I would just come in looking cute, and they wouldn't convict me," she thought.

Neither she nor Brymer could follow the rules set out for them. Her judgment failed her.

Her friends at work made jokes about her and Brymer being Bonnie and Clyde, the legendary 1930s bank robbers, and so she posted that to Facebook.

"Me and my man are on some 2012 Bonnie & Clyde s--t," she wrote. That would be used against her in court.

"I guess everyone else didn't think it was so funny," she said.

Even though the two were forbidden from talking as terms of her release and Brymer's case, Brymer kept trying to call her from jail. She refused to answer at first.

Then Brymer's parents came into the restaurant where Bagley worked and handed her a cellphone.

"Just pick up when he calls," the father said.

Eventually, she did — more than a hundred times. The calls were recorded at the jail, and Bagley was arrested for not complying with the terms of her release.

"I just wanted to know he was OK," she said.

She wanted to go to trial, but her lawyer talked her out of it and negotiated a 42-month sentence. She spent a year and a half in jail and two years in prison.

Ernie Lerma entered a plea deal and served his time. He is out of prison and living in the Phoenix area. Daniel Bagley and Jeffrey Edwards also pleaded out and were sentenced to prison for the first bank robbery. Many of the "bums" have already been adjudicated and were sentenced to prison for bank fraud.

Brymer, the smooth talker, talked first and talked plenty. The FBI investigation and state-court records paint him as the leader of the conspiracy, saying he took most of the money and was referred to as "boss." But by the time it went to court, he was just another one of the bums.

Thomas was treated as if he were the mastermind of the conspiracy.

In a response to Thomas' pending appeal to the 9th U.S. Circuit Court of Appeals, the government argued that he was the "brains."

"How could I be the mastermind when I never got a dime?" Thomas asked The Republic. "If I am the mastermind, I may not be the worst mastermind in history, but I'm definitely on the list."

Has anybody learned

a lesson?

Bagley was surprised to hear that Thomas was supposedly in charge of the conspiracy.

"That's messed up," she said.

Thomas decided to go to trial in federal court on the bank robberies. It was a bad idea, because most cases are settled by plea agreements, and most of those that go to trial result in convictions anyway, except with harsher sentences. Thomas' case was no exception.

Brymer's lawyer, Clark Derrick, said Thomas"lied through his teeth and got hit with every possible aggravator," referring to mandatory sentence enhancements in federal court.

Thomas, on the other hand, says Brymer was the untruthful one.

"Their star witness was Billy Brymer," Thomas told The Republic, and Thomas said Brymer claimed the others set him up.

Thomas still denies he helped plan the robberies or the fraud. Brymer just happened to show up at the banks he worked at, he says. Again, the court record suggests otherwise.

The prosecutor argued Thomas was present at planning meetings, lurked nearby during the robberies, met with the others afterward, and participated in dress rehearsals.

"The defendant, as a bank insider, provided security information about banks," reads one brief filed by the U.S. Attorney's Office in Thomas' appeal to the 9th U.S. Circuit Court of Appeals. "He was the only member of the conspiracy who had experience working in a bank and was considered the most knowledgeable member."

With aggravating factors and mandatory sentencing, the judge had no choice but to sentence Thomas to 49½ years in federal prison, just for the bank robberies. Thomas still faces trial in Maricopa County Superior Court on 42 counts of fraud, one count of participating in a criminal syndicate and one count of aggravated identity theft.

In his court appearances, he is defiant and blames his lawyer for not doing his job. He believes his conviction will be overturned any day in the 9th Circuit.

Brymer's name was blacked out of the state bank-fraud indictment. The Maricopa County Attorney's Office can't comment on whether the case will go forward against him, but even if it does, Brymer has reached an agreement that he won't do more than the 12 years he faces in federal prison.

"I have rarely seen anyone make the huge transformation from the time he was arrested to now," Derrick, his lawyer, said. "I doubt you'll see him in a criminal case again."

Said Bagley: "I think he's a very good liar."

She said she is the one who's not going back.

Bagley is now 23, a muscular woman with a face fixed in a half-smile. She speaks in a low voice and exudes serenity as if four years of incarceration brought her peace of mind. Her Facebook page is full of glamour shots of herself posing in bikinis, showing off a weightlifter's body.

She would like to continue her education in design, and she is a muralist and illustrator. She spent much of her time in prison creating murals for prison walls. Photos of her paintings show a sophisticated and complex style.

She is working again as a server in a restaurant but has to spend her nights and days off at a halfway house. Soon she will be placed on home detention. She has a new boyfriend.

She still says she doesn't think she did anything wrong but says she has learned a few life lessons.

First among them: "To be humble."

"I thought I deserved everything and didn't have a strong work ethic," she said. "Then when you go to prison and earn $12 a month, you learn a lot."

Summer of Fear

Publication: The Arizona Republic
Publication date: Sunday, September 4, 2016

Part 1: Summer of Fear: When smoke turns to fire

Michael Kiefer


Paul Patrick wanted a pack of cigarettes.

He knew there were two different serial killers crisscrossing the Phoenix area, one of them a sniper prowling Patrick's neighborhood at night, shooting people out of car windows. But the mini-mart was just blocks away, within sight of his house. He was craving a smoke.

So at 11:30 on that hot evening, June 8, 2006, the 45-year-old Army veteran who worked as a supermarket stocker ventured out on Indian School Road in west Phoenix.

He didn't hear the shotgun blast so much as feel it slam into him.

Before he fell to the ground, he stood for a moment, frantically trying to hold his entrails in his hands to keep them from spilling onto the street.

He screamed for help.

When he looked up, he saw a Hispanic man standing over him, holding a pistol. He expected the gunman to finish him off.

Patrick thought, "Please make it fast."

Instead, the man said, "No one's going to hurt you."

The man was Saúl Guerrero, an Army National Guardsman, a combat veteran of the Iraq War. He worked as an MP at the Phoenix Armory and lived in the neighborhood.

When he heard the shot, Guerrero thought, "It's Maryvale," a tough west Phoenix neighborhood where shots are heard frequently.

Then his mother asked him to come outside. A man was screaming on the sidewalk across the street.

Guerrero called 911.

But when he saw that people were only walking up to look at the screaming man, then walking away, he told the 911 operator, "You're going to have to talk to my mom. She only speaks Spanish."

Guerrero ran into his apartment, got his gun and a simple first-aid kit. Then he ran, barefoot and bare-chested, through the traffic on Indian School Road.

He identified himself to Patrick and used what he could from his first-aid kit. He held Patrick's guts in to stanch the bleeding until the ambulance and police showed up.

The police took Guerrero's gun from him until they were sure he was not a threat; then they took his name and told him they would contact him if they needed him.

They never did.

Dozens attacked, 17 people dead

Ten years later, another killer is stalking victims in Phoenix, several of them in the Maryvale area where Patrick was shot.

Police are baffled now, much as they were in the summer of 2006.

Two separate sets of serial killings had plagued the Valley for more than a year. Over 16 months in 2005 and 2006, at least 17 people were killed, and dozens more were assaulted and injured, before police arrested suspects in August and September.

One of the killers was referred to as the "Serial Shooter," though eventually, two men were convicted in the killings and a third was convicted of crimes related to the carnage. They were sniping out of cars at transients, prostitutes, immigrants or just regular people they mistook for any of the above.

The other was called the "Baseline Killer." He snatched women off the street, often in broad daylight. If they didn't give in to his sexual demands, he shot them in the head and left them tauntingly near where he had abducted them, then disappeared like a wraith.

Guerrero had never heard of the Serial Shooter, who cut down Patrick that summer night.

He learned only months later, when Patrick's family came looking for him to thank him.

By the end of the summer of 2006, nearly everyone in metro Phoenix knew about the murders.

It was a summer of fear.

I covered the killings as a reporter for The Arizona Republic, from the shootings to the eventual arrests, the murder trials and sentences, the appeals, even the death of one of the killers.

I knew the judges, the prosecutors, the defense attorneys, the police officers, the victims, the bad guys, the families of the victims and the families of the accused. I visited the sites where the crimes took place, searching for clues.

And now, a decade later, I still drive the streets of the Valley thinking, "Someone was shot on that bench, in front of that store," or "Someone was abducted at that ATM," or "They found a body there by that building."

There are stories about the victims and survivors I still cannot tell out loud without my voice cracking.

And this summer, I find the same reactions — in many cases stronger — from the police officers who cracked the cases, the judges who tried them, the lawyers who defended and prosecuted them.

And from the victims, whether the family members left behind or those who weren't killed, who all remain permanently scarred.

There was no reason why

Paul Patrick survived — barely.

The shooting took his legs and his livelihood from him. For years, he used a scooter wheelchair to get around.

He attended every day he could of the trials and waited patiently for the testimony of the man who shot him.

When he finally heard it, the realization came over him: There was no reason.

Near the end of the first trial, Patrick had a massive stroke that nearly killed him. Doctors could not measure the extent of the brain damage by MRI because the magnetic force would have pulled the buckshot pellets that remained in his body and sliced him to pieces.

I remember visiting him in the hospital then. A piece of his skull had been removed to ease the swelling. Just a flap of skin covered his brain.

He had several more strokes over the years and came so close to dying that his family was called to come see him for a last time before he died.

Each time, he pulled through.

Recently, I visited him in the nursing home where he is confined to a hospital bed, able to move only his left arm and leg.

I was surprised he remembered me; he smiled, and I realized I was part of the life he used to have.

We talked about the day he went out to buy a pack of cigarettes, against his better judgment.

He grinned.

"Smoking can kill you," he said.

The unspeakable violence begins

The first ominous signs were dogs, horses and other animals found shot to death in West Valley yards in mid-2005.

Then there were immigrants on bicycles, and transients sleeping on benches in west Phoenix or panhandling under an overpass in Tolleson, all of them shot dead with .22-caliber slugs.

In August 2005, the sexual assaults started along Baseline Road, from Tempe to Laveen. A group of teenagers. A mother assaulted in front of her daughter, then forced to drive while the daughter was molested.

The events seemed isolated at first. They spanned multiple jurisdictions, so police departments did not immediately see a pattern.

There was no Twitter, no Instagram, fewer Facebook users. Information — and fear — took longer to take hold in those days.

But the bodies added up.

Georgia Thompson was 19, an exotic dancer from Idaho. On Sept. 9, 2005, she was found on her back in the parking lot of a Tempe apartment complex, with a bullet in her head.

Her keys were still clutched in her hand. She wore an orange T-shirt that said, "Better luck next time."

Her pants were unbuttoned, but she had not been sexually assaulted. The only evidence found at the scene was a spent .380-caliber cartridge casing.

Ballistics experts needed months to link that casing to other murders.

At about 7:30 the evening of Dec. 29, 2005, someone started shooting from a car at a Tempe bartending school.

Over the next five hours, the car meandered through central Phoenix. The shooting continued: A dog was killed as it was being walked by its owner; then a man named Jose Ortis was murdered; then a second man, Marco Carillo, was shot to death.

A block and a moment later, Timmy Tordai had just gotten off the bus after working a shift at the post office. He was walking home when he felt a pop under his collarbone and fell to the ground, paralyzed.

"I thought I was having a heart attack," he said later, in court. "And then I saw the blood."

Before the night ended, three more dogs were shot dead in central Phoenix.

Sometime after 1 a.m, a woman was turning tricks on Van Buren Street.

She had just gotten out of one john's car and was scanning the street for her next when a light-blue, four-door car passed her and made a U-turn. She thought it might be her next john until she saw the gun barrel come out of the driver's-side window.

She lived: A passer-by stopped his car and drove her to a hospital.

Just as police realized that the car-sniper incidents were linked to a serial shooter, the shootings stopped for five months.

Police had not yet connected any murders to the rapes along Baseline Road.

In February 2006, Romelia Vargas and Mirna Palma Roman were found dead in a lunch wagon in southwest Phoenix with gunshots to the head, their pants unbuttoned and pulled down slightly. At first, police thought it was a drug deal gone bad.

Then, in March, Chao Chou and Liliana Sanchez Cabrera were abducted at gunpoint as they got into a car behind the restaurant where they worked at 24th Street and Indian School Road. Both were found dead within a mile of each other.

Police now knew they had two serial killers on the streets and began sounding the alarm in the media. One killer was shooting out of cars. The other was on foot, appearing out of nowhere to assault women and shooting them in the head if they resisted.

"The police chief and the city manager asked to see me, and they closed the door," said Phil Gordon, who was mayor of Phoenix at the time.

"We made a public-policy decision," Gordon said. "Nothing was going to be spared."

More attacks, more bodies: A dead prostitute, Kristina Nicole Gibbons, was found stuffed between a building and a shed on 24th Street in Phoenix.

A woman was abducted at gunpoint at 32nd Street and Thomas Road by a black man wearing a fright mask and pushing a shopping cart.

She was forced to drive to a secluded area nearby and strip naked. When she refused to perform oral sex on her abductor, he put the gun to her head and told her that her parents would read about her in the newspaper the next day. He pulled the trigger, but the gun misfired.

As soon as she heard the click, she leaned on the door handle and fled, naked, to the nearest house.

Then the shootings from cars picked back up: in central Phoenix, in south Scottsdale, in Maryvale and near Phoenix Sky Harbor International Airport.

But now, instead of a .22 rifle, the shooter was using a shotgun, which cannot be traced as easily as a rifle's bullets. Investigators wondered at first if it was yet another assailant.

The police came up with nicknames for the killers.

They named the car-window sniper the Serial Shooter. They had no descriptions of the driver or shooter. They only knew he drove a light-colored sedan.

The other suspect was first known as the "Baseline Rapist," because of his early victims near Baseline Road. Then, when police connected the rapes to the murders, they changed his handle to the Baseline Killer, even though many of his targets were in the square-mile area between Indian School and Thomas roads and 24th and 32nd streets.

Police circulated a sketch of a suspect: a light-skinned black man who wore a Gilligan-style fishing hat and a dreadlocks wig.

The phone went dead

On June 29, 2006, the Baseline Killer struck again, in a terrifying, lightning-quick attack that was caught on video and rocked the city of Phoenix.

At around 9:30 p.m., a woman named Carmen Miranda was talking on the phone to her boyfriend as she vacuumed her car at a car wash on Thomas Road at 29th Street. She told the boyfriend that a panhandler was approaching her. She screamed, and the phone went dead.

The boyfriend called police. He called Miranda's sons. They all raced to the car wash. Miranda was gone.

Hours later, Miranda was found dead in her car behind a building next door to the car wash — a bullet between her eyes, her pants unbuttoned.

But there was a surveillance camera at the car wash. Police woke the owner that night to get the footage. They shared the video with the media the next day.

In the blurry video, a man wearing a Gilligan hat and a dreadlocks wig shuffles up to Miranda. He abruptly grabs her and throws her into the back seat of the car. Then he gets in and drives off.

When TV stations broadcast the video, people realized the sudden ferocity of the attacks, and it fueled the city's terror.

Over the next days, I walked the streets of the neighborhood where Miranda had been snatched. I talked to women waiting for buses or tending shops along what should have been a peaceful neighborhood.

There had been robberies at the stores and restaurants and an ATM at 32nd Street and Thomas Road, murders up and down 24th Street, rapes along 32nd Street.

And the people I spoke to could recite every incident and every rumor that seemed to fit the pattern, but police could not or would not confirm the information.

That made them only more worried. The neighborhood was working class. The women, especially those who worked at night, were watching over their shoulders.

Meanwhile, the rest of the Valley wondered if that car coming down the street while they were walking the dog was going to slow down so someone could shoot. And, if so, where would they run?

Police held meetings to talk to neighborhoods affected by the killings.

"We were speaking to a community of people who were so fearful for their families that it felt like an epidemic," former Phoenix police Officer Paul Penzone said.

Police held regular press conferences to share information with the media.

Still, the public remained confused about the two killers.

"I spent months trying to explain the differences between the two cases," said Andy Hill, a retired Phoenix police sergeant who became the public face of the investigation.

Phoenix Detective Clark Schwartzkopf added, "You couldn't have two more different dynamics in these two murderers, but the public was mixed up."

Camille Kimball, who wrote the book "A Sudden Shot" about the Serial Shooter case, summed it up.

"That was part of the terror," she said. "We didn't know one from the other. The cops didn't know one from the other."

Hundreds work the cases

To keep the cases straight, law enforcement came together across the Valley and created not one, but two task forces.

"There were 375 people involved in the Serial Shooter case," Schwartzkopf said, and 100 on the street for the Baseline Killer.

Officers were working double shifts and overtime.

The Republic, like most media outlets, had its own task force. At least six reporters covered the cases full time. Others would be called in as things happened.

But neither the police nor the media knew enough. The public was terrified, because the killers struck in every kind of neighborhood, good and bad, rich and poor.

The Serial Shooters worked from Tolleson and Avondale to Mesa and Chandler. The Baseline Killer even assaulted people in a parking lot used by patrons of a wine bar in the tony Arcadia neighborhood of Phoenix.

And they struck without warning.

"There was an acknowledged crisis," Gordon recalled. "Should we take our children to school? Should we go out at night? Should we cancel the Fourth of July?"

Billboards bearing the police sketch of the Baseline Killer went up all over the metro area. A reward of $100,000 was offered for information leading to either suspect.

But he remained at large.

Miranda would be the last of the Baseline Killer's victims. After June 29, 2006, the killer went into hiding.

But the Serial Shooter amped up in July 2006, wounding eight more people and killing the last victim on July 30: a young woman talking on the phone while walking to a friend's house in Mesa. She felt so safe she was wearing pajamas.

By then, the Baseline Killer had forced himself on at least 33 victims over 13 attacks, and had killed eight women and one man.

The Serial Shooter case had eight dead — though police still suspect at least four more murders that they could never conclusively prove were related. Eighteen more had been wounded, and at least 10 animals had also been killed.

Police worked around the clock. The public waited fearfully.

By the end of the month, there had been no arrests.

A $100,000 gamble pays off

Five hundred to a thousand people a day called in to the Silent Witness hotline with tips on the Serial Shooter and the Baseline Killer.

"We got calls from every part of society, and we took it seriously," said Penzone, who ran Silent Witness at the time.

He called the $100,000 rewards for information leading to the arrest of either "two lottery tickets."

In the case of the Serial Shooter, the lottery paid out.

A man named Samuel Dieteman was a regular at a northwest Phoenix tavern called the Star Dust Inn. And once, when he was drunk — and he was always drunk — he became remorseful, and he confessed some of the shootings to his friend Ron Horton.

Then, that July 30, the young woman who was walking in her Mesa neighborhood, Robin Blasnek, was shot and killed. Horton felt responsible and realized her death might have been prevented.

Horton dropped a dime. He gave police Dieteman's cellphone number, which they traced. And he also provided them with the name of a man with whom Dieteman had once lived: Jeff Hausner. Police put Hausner's apartment under surveillance.

And they asked Horton to arrange to meet Dieteman for drinks.

On Aug. 1, 2006, the task force staked out the Star Dust Inn, with undercover officers inside and out. Schwartzkopf was sitting in an unmarked car in the parking lot when a light-blue Toyota Camry pulled in.

"That's our car," he recalled thinking. "It was an enormous relief. I've got the car. I've got the guys."

The officers ran the plates. The number came back to Dale Hausner.

They had already heard of Jeff Hausner, but it was the first police became aware of his younger brother, Dale.

In the car, with a gun

Dale Hausner dropped off Dieteman at the bar, then drove away. Officers followed Hausner as he drove to the Metrocenter mall. When Hausner went into the mall, the officers put a GPS device on his car.

Then Hausner drove to Mesa, where he and Dieteman shared an apartment, taking the long way down Van Buren Street, as if casing out future victims, Schwartzkopf said.

Horton stayed behind at the bar with Dieteman, calling police detectives when Dieteman went to the bathroom, according to Kimball's book.

Then Horton drove Dieteman to Wild Horse Pass Hotel and Casino on Interstate 10. Horton tactfully asked Dieteman if he could find another way home. Dieteman told him Dale Hausner was coming to pick him up. Horton left.

Undercover police were there to watch Dieteman and Dale Hausner as they talked in the casino. Then they left for Hausner's car in the parking lot, stopping to open the trunk and take out a bag that was about the length of a shotgun.

Instead of heading directly for the apartment in Mesa, the Camry wandered into Chandler.

Police were now following them on the road and in the air. They realized with shock that Hausner and Dieteman were on the hunt, looking for victims, slowing down when someone passed on a bike.

They would make U-turns and wander into neighborhoods that were not on the way to anywhere.

"For an hour and a half, we followed them as they cruised," Schwartzkopf said. "It was the worst night of my law-enforcement career."

Schwartzkopf and the other officers worried that the gun could come out of the window at any moment, and they would not be able to intervene.

Hausner and Dieteman could kill someone right in front of them.

The undercover cars passed one another, switching positions to avoid detection and to foil the shooters.

After the Camry would pass by, one of the officers would shout out the window at people on the street and tell them to go home and take cover, Schwartzkopf later told Kimball.

"We were hoping and praying to God they wouldn't shoot anybody," he said.

Dieteman and Hausner never got off a shot that night. The Camry drove back to the apartment in Mesa under the watchful eye of undercover officers.

The officers on the task force knew they needed to act fast.

Coming Monday: The race to get a warrant.



Publication: The Arizona Republic
Publication date: Monday, September 5, 2016

Part 2: Summer of Fear: 'What about the ... guy I shot on 27th Avenue?'

Michael Kiefer


On Aug. 2, 2006, with officers still staking out the apartment where the suspect "Serial Shooters" were living, Phoenix police investigators met with County Attorney Andrew Thomas and his executive staff to request an emergency wiretap.

Thomas approved their request through a process that allows law enforcement to begin surveillance before a judge has signed off.

"The sun was starting to go down, and I did not want to take that chance of another loss of life," Thomas later testified in court when the legality of the wiretap was challenged.

At 11 p.m., detectives drove to the home of Judge James Keppel to sign off on the emergency wiretap warrant. Then they bugged Samuel Dieteman and Dale Hausner through a next-door apartment and recorded their conversation.

The officers couldn't believe what they heard. On the recording, according to transcripts, Dieteman told Hausner, "On the 5 a.m. news, it was when they first said ... Phoenix and Mesa police have now officially linked the shooting death of a young Mesa woman to the serial killer, which now brings their total to six." Hausner said, "It's higher than that. What about the guy I (expletive) shot on 27th Avenue?"

Dieteman continued to tell Hausner that the police were working with the feds in other states, looking for similar crimes and evidence. Hausner: "So we're being copycatted, Sam? We're pioneers, Sam? We're leading the way for a better life for everybody, Sam?"

As police listened to the wiretap, Hausner talked about wanting to be the best serial killer ever. The two joked about the most recent murder, of Robin Blasnek, and Hausner made cartoonish, mocking voices as he described her reaction. Officers could hear the movie "The Jungle Book" in the background, playing for Hausner's toddler daughter.

Hausner said, "I love shooting people in the back. That's so much fun. That (expletive) old man I shot in the back."

Dieteman said, "My favorite thing is, you know, when somebody is walking away ... it gives me ... an extra couple seconds to aim. I don't have to worry about them looking."

That night, Aug. 3, police made their move. Dieteman and Hausner were inside the apartment. Because the child was there, police did not rush the building. They waited for an opportunity.

Finally, near midnight, Dieteman came outside to throw out the trash, carrying a garbage bag that contained a shotgun shell and a map of the shootings. SWAT team officers in helmets and body armor confronted him. When Dieteman saw the guns, he surrendered. He gave them a key to the apartment.

The police entered quietly. Hausner was preoccupied with something on the counter, and didn't notice. But when the police announced their presence, he was startled and shouted, "Jesus Christ!"

Then he fell to the floor.

Police bound his wrists with zip ties.

The first glimpse of the monsters

At 5 p.m. Aug. 4, 2006, I sat on a bench in the Initial Appearance Court in the Fourth Avenue Jail in downtown Phoenix, waiting for a first glimpse of the Serial Shooters.

Maricopa County sheriff's deputies led Hausner, short, blond and scruffy-bearded, into the courtroom.

He was wearing only a pair of green gym shorts and a pair of pink handcuffs. His hair was mussed. His love handles hung over the elastic waistband of his shorts as he shivered from the air-conditioned cold. His eyes were red-rimmed from weeping and sleeplessness and police questioning.

The hearing was short and sweet. Hausner was charged with murder.

An hour later, deputies led Dieteman in. He was tall and dark-haired, and he wore a rugby shirt and a worried expression. There was a large skull tattoo on his arm.

His attorney, Maria Schaffer, said he was "hungover out of his mind."

Hausner never admitted a thing, though he was clearly the mastermind.

But Dieteman let it all spill out the day he was arrested. He and Hausner, he told police, were engaged in what they called "random recreational violence."

There were muggings, stabbings, palm trees ignited, stores set on fire, tires slashed. And the shootings: Essentially, they were playing video games in real time while smoking meth.

"Everything they did was about creating havoc," Phoenix police Detective Clark Schwartzkopf said.

Once, they even shot a man, then parked the car and went to look at the damage they had done. Police were already on the scene. They questioned Dieteman and Hausner, who gave their names and made up stories about what they had seen and heard.

Then the officers let them go.

Hausner was 'Jekyll and Hyde'

Hausner was glib. He was a janitor at Phoenix Sky Harbor International Airport and had clearance to secure areas at the facility.

He was so arrogant and so certain he would not be caught that in April 2006, in the midst of the hunt for the Serial Shooter, he did an interview with The Arizona Republic about his job. In the interview, he gushed about the old Terminal 2 where he worked, saying he hoped to retire there.

Hausner also freelanced as a photographer and was involved in the Phoenix boxing scene as a promoter and a photographer. He had a public-access TV show and had done a TV commercial for a law firm that specialized in personal-injury cases.

And he ran a lucrative steal-to-order shoplifting service. He would take orders from fellow workers on the types of alcohol or music or movies they wanted, go out and steal it, and sell it to them at a discount.

"He was Jekyll and Hyde," said Roland Steinle, the Maricopa County Superior Court judge who presided over Hausner's trial. He noted that Hausner was dating a woman who holds a doctorate degree, then going out to kill people after seeing her.

And, unexpectedly, he was a ladies' man who kept journals about his dates with multiple women, as he said later in court, so that he could keep his stories straight.

He used many of them as alibis, saying he had been with them on nights he was supposed to have committed crimes. Those stories fell apart when the women took the stand.

"He was always pleasuring some lucky woman," or so he told his defense attorney, Tim Agan.

"He was easy to get along with," Agan added.

But Hausner had dark secrets and came from a troubled and abusive family background, which Agan could not share because Hausner had not allowed it to be used as mitigation during his trial.

He was also a doting father, but a heartbroken one. In 1994, Hausner was married and living in Texas with his wife and two young sons. One night, while the family was on a road trip, Hausner's wife fell asleep at the wheel and their car was catapulted into a river.

Hausner was sleeping in the passenger seat, but awoke and managed to get out of the sinking car. Then he repeatedly dived down to the submerged vehicle to try to rescue his sons, who were trapped in car seats in the back seat. Both died.

His wife survived, and the two divorced.

Hausner fathered another child, a girl, whom he also doted on. On the night police eventually bugged his apartment, they heard Hausner talking to the child, and then heard her telling Dieteman good night.

"Don't kill anybody," she said in a tiny voice.

"Oh, all right," Dieteman replied. "Since you asked."

Partners in crime

Dieteman was an electrician by trade, but unable to hold down a job because of his substance-abuse problems.

He grew up in Minnesota, married young, fathered a child and then drifted off into entropy, amassing a long record of petty criminal arrests.

He was unemployed and homeless and ended up living with Hausner's older brother Jeff in west Phoenix. The two would go out and shoplift bottles of booze so they could get drunk, testimony later revealed.

Jeff introduced Dieteman to Hausner, telling him that Dieteman was as good a shoplifter as Hausner was.

Dieteman and Dale Hausner became fast friends and partners in crime, shoplifting at first, earning hundreds of dollars from the enterprise.

But they also reveled in vandalism.

They drove to local casinos to gamble, and when they left the parking lots, they often slashed the tires of cars parked near them. They set fire to palm trees or garbage piles. And before they were caught, they were photographed on surveillance video as they set fires in two separate Walmarts. Dieteman was even arrested once for shoplifting at a Walmart.

"Sam was looking for a place to stay and booze to drink and drugs to take," Schaffer said, adding that he needed "someplace to lay his head after the drugs and booze."

They did meth all night, and then Dieteman would be dropped off at the bars that opened early in the morning so he could drink some more.

Most of what police and prosecutors know about the early stages of the Serial Shooters came from Dieteman. As he drank and did drugs with Jeff and Dale Hausner, they would regale him with their exploits. He later related those stories to police.

At first, he told them, Dale and Jeff Hausner drove together, shooting animals and people.

Once, for example, in November 2005, Dieteman said, Jeff was drawing a bead on a dog in an alley near 20th and Monroe streets when a transient cussed them out. His name was Nathaniel Schoffner. He threw a beer can to keep them from shooting and called Dale Hausner a "Bill-Clinton-looking motherf--ker."

Dale Hausner grabbed his .22 rifle and pulled the trigger, but it misfired. Then he grabbed a .410 shotgun and, according to Dieteman, he and Jeff argued over whether you could kill anyone with such a small gauge. Dale Hausner fired anyway, killing Schoffner.

But after an overnight shooting spree in late December 2005, they shut down.

Jeff Hausner got a job. And the brothers likely destroyed the .22 rifle.

Shootings start again

Five months later, on May 2, 2006, Dale Hausner was driving down Van Buren Street with his new bestie, Dieteman. He turned left onto 44th Street, powered down the passenger window and told Dieteman to lean back.

Then, Hausner pulled a sawed-off shotgun from between the car seats and pointed it across Dieteman's body, aiming out Dieteman's window.

A teenager named Kibili Tamadul was on his way to a convenience store to pick up milk for his mother. Hausner fired, striking him but not knocking him down. Tamadul jumped and shouted, and Dieteman and Hausner laughed like they were watching a Warner Bros. cartoon.

Fifteen minutes later, they turned onto Thomas Road. Hausner handed the shotgun to Dieteman and said, "Your turn."

A young woman named Claudia Gutierrez Cruz was walking on the sidewalk near 61st Street; she had just missed her bus connection as she tried to get home from work. Hausner did a U-turn to give Dieteman a good shot. He fired and blew her off the sidewalk.

They passed by again to see where she was. She was found by a passer-by; in the 911 call, Gutierrez Cruz could be heard pleading for someone to call her sister. She died at the hospital.

As Dieteman would later testify, the next day, Hausner put the morning newspaper on the kitchen table. "Hey, dude, you got the first murder of the year in Scottsdale," he said. "I'm jealous."

He probably was.

Hausner later told detectives about his fascination with Charles Starkweather, a teen from Hausner's native Nebraska who killed 11 people in 1958.

And after Hausner's arrest Aug. 3, police found scrapbooks filled with newspaper articles about the Serial Shooters and about the "Baseline Killer," and they realized that Hausner was actually competing with his rival murderer.

The Baseline Killer hadn't struck in nearly two months, but he was still on the loose.

Tuesday: Waiting for Goudeau


Publication: The Arizona Republic
Publication date: Tuesday, September 6, 2016

Part 3: Summer of Fear: Legwork leads to arrest of Goudeau

Michael Kiefer

The Serial Shooters were caught because one of them confessed to a friend and the friend had a guilty conscience.

There was no such tip to catch the Baseline Killer, so police had to depend on old-fashioned legwork.

Police had a video of him, a composite sketch and they were canvassing the neighborhoods where he had struck. They had suspects under surveillance. They were searching for DNA matches. Though they had calls to Silent Witness — and a $100,000 reward for information leading to his capture — none was enough to make an arrest.

One woman, who is still afraid to give her name, remembers an encounter in her print shop on Thomas Road near 24th Street.

A man who fit the killer's description walked into the shop and started to come over the counter toward her.

He had a very strange voice, she said. He was wearing a black, long-sleeved T-shirt and khaki pants. The rubber edge of his sneakers was so white that it looked bleached.

"He was so clean. There was no wrinkle in his clothes," she said, "and although it was a hot day in Phoenix, there was no smell to him and not a trace of sweat."

"I was terrified," she said. "This is 10 years later, and I am shivering just bringing it up."

She was able to scare the man away when the phone rang and she pretended it was workmen in the back of the shop.

The man ran out the door and disappeared. She called police, but the information was of little use.

A suspect: An ex-con convicted of rape

The sexual attacks began in August 2005, and the first of the murders that September. They were attempted rapes that turned fatal if the women refused to comply.

Even if the women did comply, the Baseline Killer never completed sexual intercourse with any of his victims, which made it more difficult for police to track him with DNA.

None of the women he murdered had been raped. Instead, they were posed, as retired Phoenix police Detective Benny Piña told The Arizona Republic. Their pants were pulled down slightly, the zippers undone.

"It's not about the act," Piña said. "It's about remembering the act later with mementos in quiet time back home."

Among the suspects was an ex-con construction worker named Mark Goudeau, who lived with his wife in a house on Pinchot Avenue near 28th Street in Phoenix, at the epicenter of one of the neighborhoods that was preyed on.

Goudeau had a past: He had been accused of rape as a teenager, but the woman refused to press charges.

In 1989, Goudeau was arrested in the same neighborhood for raping and beating a woman senseless with a shotgun and a barbell, then chasing two witnesses and threatening them with the gun.

He entered into a plea agreement, but a year after the assault, before he was even sentenced, he robbed a supermarket at Thomas Road and 30th Street to get money to buy crack cocaine. He was sentenced to 21 years in prison.

But in 2004, after 13 years, he was granted clemency and released. Among the people testifying on his behalf was Wendy Carr, who had married him while he was in prison.

Goudeau went home to live an outwardly quiet and lawful life.

When he came under suspicion in 2006, police put him under surveillance, Piña said. They watched him meet with women in the park. But as the police moved in, he would disappear, perhaps up a tree, maybe down an alley.

"That whole surveillance was a nightmare for us," Piña said.

He ordered her to beg for her life and her baby's

Detectives finally broke the case with DNA, though not from semen.

In September 2005, a man matching the description of the Baseline Killer jumped two sisters in their 20s as they walked from a water-play fountain in a city park near Baseline Road in south Phoenix. They were forced into the bushes at gunpoint, ordered to the ground and forced to disrobe. One of thesisters was six months pregnant.

The assailant tried several times to have intercourse with the younger sister, who was not pregnant, but he could not stay erect. He fumbled with a condom.

He told the women not to look at his face. One sister noticed that he had put the gun down. She grabbed it and tried to shoot but could not figure out how to fire it. The attacker wrestled with her and the other sister seized the gun. She could not figure out how to shoot it either.

The attacker got the gun back and touched it between the pregnant sister's legs. He ordered her to beg for her own life and the life of her unborn baby, according to testimony.

Then he decided to let them live.

But first, he made both women spit into his hand. Then he stirred in mud and rubbed the mess on the breasts of the sister he tried to rape in an attempt to cover the DNA he had left there in saliva.

The ploy almost worked.

Technicians at the Phoenix police lab were unable to pull a DNA profile out of the gumbo. Detectives then sent the remaining sample swabs to the state Department of Public Safety lab for a new DNA test that isolated the Y chromosome, or male hereditary genes.

It took nearly a year but they came back with a hit: Goudeau.

Police wasted no time. On Sept. 6, 2006, they arrested him in front of his house as he got out of his pickup truck on the way home from work.

It was his 42nd birthday.

Only DNA from a single incident

Sept. 6 was my daughter's birthday, too, and we had celebrated at a restaurant in Scottsdale. I had only been asleep for a half hour when the phone rang.

It was my editor, and she asked if I could go down to 28th Street and Thomas Road because the police had just arrested a man they thought was the Baseline Killer.

It was about 11 p.m. I took a shower and went to work for the next straight 48 hours.

My colleague Judi Villa was already there, in front of a little house in a neighborhood that would have been quiet, if not for the TV trucks and the police evidence vans and squad cars.

We quickly figured out the name of the suspect.

The neighbors were shocked. At least one of them recounted that Goudeau had told him he was under police suspicion. The next afternoon, I was back in the Initial Appearance Court at the jail when they led him in.

He wore a black long-sleeve T-shirt and khaki pants, the same blend-in-with-the-background outfit that his surviving victims described, except that it was flecked with cement dust.

He bore a strong resemblance to the composite sketch police had circulated, a light-skinned and muscular black man with a mustache, except he was not wearing the dreadlocks wig or the fishing hat he wore during some of his attacks.

Goudeau gave his name and address and no more. He was charged with two counts of aggravated assault, two counts each of sexual abuse and sexual assault, and two counts of kidnapping, stemming from the sexual attack on the two sisters walking home from the water park near Baseline Road the year before.

Police suspected Goudeau of all the Baseline Killer crimes, but at the time, they had DNA from only that single incident. They didn't have enough evidence to charge him with any of the murders.

But the sexual-assault charges would make sure Goudeau stayed in jail as police continued to work the case.

They did not seem frightening

What was perhaps most frightening about Dale Hausner, the mastermind of the Serial Shooters, and Goudeau, the Baseline Killer, was that they did not seem frightening.

If either one sat down next to you at a bar or coffee shop, you might end up in conversation with him, even buy him a drink.

"That's how psychopaths live among us," said Phoenix police Detective Clark Schwartzkopf, who first identified Hausner as a killer.

By coincidence, Schwartzkopf had arrested Goudeau 13 years earlier after he committed the 1989 assault and robbery that sent him to prison for 13 years.

Goudeau was handsome, with an athlete's figure and an upright carriage.

At the time of his arrest in 2006, his neighbors called him "sweet" and "hard-working." They saw him with his wife, or out tending his yard on the little house they shared.

Goudeau's wife, Carr, still professes her husband's innocence. She said over and over that her husband wasn't evil or violent, that he was kind and funny and hardworking.

"The guy I saw, he never came off as a jackass," said one of his defense attorneys, Corwin Townsend. "He always was cordial to everyone on our team."

Goudeau worked as a concrete finisher for a company that set foundations, and it took him to construction sites all over the Valley — including several near to where his attacks took place, the two women killed in the lunch truck, for instance.

Detectives remember that Goudeau would go there to buy breakfast for his crew, and that in itself points out the yin and yang of his being.

When police finally searched Goudeau's home, they found mementos of his crimes, like jewelry taken from his dead victims. And they found traces of blood.

But they didn't have enough to charge him with murder.

A son views a tragic scene

The break came accidentally from a murder that seemed unrelated to the Baseline Killer attacks.

On April 10, 2006, Sophia Nuñez was found dead in the bath tub of her west Phoenix home by her 7-year-old son. She had taken the day off from work, and she and her family attended a giant march through downtown Phoenix, which was part of a national day of protest in favor of immigration reform.

When she failed to pick up her son at school, he walked home and crawled under the garage door, which had been left open about a foot.

The water was running in his mother's bathroom, so he assumed she was in the shower. But she didn't come out, and he saw that water was running under the bathroom door and soaking the bedroom carpet.

He walked in and found her half-dressed and under the water, with a bullet in her cheek under one eye, which was open.

The boy valiantly tried to administer CPR, and then ran to a neighbor's house to call police.

At first, police suspected Nuñez's ex-husband, but they cleared him. They took DNA swabs, collected the bullet, but had no leads.

The connection came when they went through Goudeau's phone records and checked a number he had called repeatedly: Nuñez's.

Nuñez's aunt and best friend, Alicia Bell, said Nuñez and Goudeau met at a bar in northwest Phoenix.

He told her he was a professional baseball player on the disabled list, but she didn't believe him, partly because of the old truck he drove. He called her repeatedly, then apparently gave up on her.

"She just thought he was weird and married," Bell told me some months after Nuñez's death.

He called her over and over, but she was not interested.

One afternoon, Nuñez was with her teenage daughter, Unique Martinez, at Arizona Mills mall, and they ran into Goudeau at an arcade.

"He seemed like a friendly guy," Martinez remembers. "I wasn't skeptical of him."

They all chatted and Nuñez remembered that Goudeau said he did odd jobs, so she asked if he could install a security door at her house.

When he came to the house, she didn't want to be there with him to hit on her, but she didn't think he was a threat, and left her children as he worked. He never finished the job.

On April 10, 2006, he came back to the house uninvited and killed her.

'Hey, that's my mom's friend'

After Goudeau was arrested for the rape of the two sisters in south Phoenix, Martinez saw him on TV. "Hey, that's my mom's friend," she thought.

She called the detective on her mother's case.

Investigators realized they had lifted Goudeau's DNA from saliva on her breast. The bullet in her head matched the ballistics of the other murders.

On Jan. 16, 2007, Phoenix police called Nuñez's mother, Maria, and asked her to come to police headquarters on East Washington Street, and they broke the news. Families of other victims were there too.

Goudeau was already charged with 19 counts including sexual assault, sexual abuse, kidnapping and aggravated assault for the attack on the two sisters, and one charge of possessing cocaine when he was arrested.

Now, he was indicted on 74 more counts including nine murders, which would go forward as a second case.

Maria Nuñez came out of police headquarters and handed a photo of Sophia to a television cameraman, who taped it to the side of a TV live truck to photograph it.

I took my cellphone out of my pocket and snapped a photograph of Sophia's image and emailed it to the newspaper's photo editor.

It ran on the front page of The Republic the next day.

Wednesday: The police had their suspects, but would juries convict them?


Publication: The Arizona Republic
Publication date: Wednesday, September 7, 2016

Part 4: Summer of Fear: 'Evil doesn't have a face'

Michael Kiefer


How does a jury respond in a case where a rapist presses a gun to a pregnant woman's private parts and asks her to beg for the life of her unborn baby?

Predictably, with horror.

Mark Goudeau was the first of the suspected serial killers to go to trial.

But initially, he was charged in the only attack for which police and prosecutors had sufficient evidence, the sexual assaults on two sisters in south Phoenix in September 2005.

They had been playing with friends and family at a water feature in a public park just north of Baseline Road. Because it was a nice evening and a good neighborhood, they decided to walk home instead of drive with their companions.

Goudeau dragged them into the bushes and repeatedly assaulted them sexually, then uncharacteristically let them go free.

But investigators were able to lift Goudeau's DNA from saliva on one woman's breast. He was charged with 19 counts including sexual assault, kidnapping and aggravated assault.

He was charged with the murders under a different case number that would be tried separately.

The rape case went to trial on July 23, 2007, a little more than 10 months after Goudeau was arrested. The jurors knew nothing about the murders. The words "Baseline Killer" were never mentioned, so as not to prejudice them.

Corwin Townsend and his co-counsel, Cary Lackey, fought with prosecutors Suzanne Cohen and Bill Clayton over how the DNA was obtained and whether it was a true match.

Goudeau had made the women spit in his hand and rubbed it on the woman's breast in an attempt to foil DNA testing. And it almost worked. Phoenix police, however, sent the sample out for a new sort of testing that was able to isolate a profile they said matched Goudeau.

The defense attorneys objected.

For one thing, the police labs had consumed all of the sample swabs, leaving nothing for the defense to test independently. For another, Townsend and Lackey argued that because the experimental DNA testing focused only on the Y chromosome, which is passed genetically among males in a family, the DNA could have been from any one of Goudeau's male relatives

But the sisters bravely took the stand. The testimony was horrid.

On the day the guilty verdict came in, my story was posted online before the jury had even left the courtroom to gather their thoughts in the jury room before coming back out to talk to the media.

While in the jury room, one juror took out his phone, called up and learned for the first time that Goudeau was also suspected of being the Baseline Killer.

On Dec. 14, 2007, Maricopa County Superior Court Judge Andrew Klein sentenced Goudeau to 438 years in on the numerous accounts of sexual assault.

And he still had to stand trial for the nine murders.

Letters from the killers

One week earlier, Dale Hausner, the accused mastermind of the "Serial Shooters," attempted suicide in jail by hoarding over-the-counter medications and taking them all at once. He was revived so that the authorities could try to get a death sentence against him and kill him with different drugs.

His attorneys, Tim Agan and Ken Everett, tried to exclude the damning tapes from police wiretaps, in which they were overheard bragging about their prowess as serial killers. They lost the bid, and the case lumbered on toward trial.

In April 2008, Samuel Dieteman, who had already confessed everything, pleaded straight up to the two murders he took part in. He killed Claudia Gutierrez Cruz on his first night shooting with Hausner. And he was in the car when Hausner shot and killed Robin Blasnek.

Dieteman testified that he deliberately missed other times he was handed the shotgun. But he still needed to stand trial so that a jury could decide whether to sentence him to death or to life in prison.

The next month, Jeff Hausner, Dale's older brother, was finally publicly identified as a participant in the Serial Shooter crimes. He was indicted for two incidents that occurred while all three were joy-riding in Dale's car. Dale Hausner would create a distraction and Jeff would sneak up behind the victim and stab him. He pleaded guilty to one stabbing and faced trial for the second.

By then, I had received the first letter from Dale Hausner, though it came signed, "A Loyal Reader; (Name withheld for fear of ridicule by co-workers and family members for not jumping on the 'guilty' bandwagon.)"

In it, he accused Dieteman and his brother of the crimes. The letter painted Dieteman as a violent criminal with a long rap sheet. It ridiculed County Attorney Andrew Thomas' assertion that the shootings had stopped since Dieteman and Hausner had been arrested.

In the letter, Hausner tried to say that police had misunderstood his statement on the wiretap tapes — "It feels good doesn't it?" — as referring to scratching an itch. The writer knew all this because, he wrote, he had written to Hausner, who told him he was being framed.

The next letter was dated May 22, 2008. Hausner continued to place blame on Dieteman. It was signed only with the letter "D," but he wrote about inaccuracies in my coverage.

"Last, could you possibly put a worse photo of me in the paper?" he wrote. "Maybe you should photo-shop one of me with devil horns. That would sell a lot of papers!!"

A day later, I received a letter from Dieteman to clear up the general perception that he had been present at all of the Serial Shooter crimes, which most media outlets assumed, not yet knowing precisely how the attacks had played out.

"I am in no way trying to play 'Mr. Innocent,' as Dale Hausner is," Dieteman wrote. "I have taken responsibility for my crimes. I signed a plea agreement to where I'm still going to death row, the only benefits I get out of that deal are avoiding an unnecessary trial and being able to put Hausner away."

'A long, painful, bloody road'

Dale Hausner's trial started in September 2008 in front of Maricopa County Superior Court Judge Roland Steinle.

By the time the case came to trial, the charges had been winnowed to eight counts of first-degree murder, 25 counts of drive-by shooting, 17 counts of aggravated assault, 18 counts of attempted murder, nine counts of cruelty to animals, three firearms violations, two conspiracy charges and one for arson.

The trial lasted seven months.

"This is going to be a long, painful, bloody road," Deputy County Attorney Vince Imbordino told the jury as he showed them photographs of the victims. "This is not a crime show. People were actually killed. The bullets were real, the blood was real."

Much of the case was built on Dieteman's statements, but he was present with Hausner only after April 2006; many of the crimes were committed before that time. So investigators had to establish Hausner's presence, using cellphone records to show he was in the area of a crime, surveillance cameras, shell casings found in his car., etc.

The trial droned on. At Christmastime, I received a Christmas card from Hausner. He wrote a message inside: "My wishes for you is that the lord bless you in all you do."

He signed it "Dale."

'Evil doesn't have a face'

In February 2009, Hausner took the witness stand and denied any involvement in the shootings. But he said enough on the stand to "open doors," that is, to bring up issues that had been judged off-limits to prosecutors. His girlfriends and an ex-wife were all brought to testify to refute his alibis.

In his closing statement, Vince Imbordino, the lead prosecutor, drew in the jury in a soft voice.

"He doesn't look like much," Imbordino said as he pointed at Hausner. "You might have passed him on the street and not noticed him. He doesn't look like a killer. Evil doesn't have a face."

Imbordino asked the jury the same question Paul Patrick, one the victims, had asked over and over: What could be the reason for the shooting spree?

"Unfortunately, there's not always a reason," the prosecutor said.

He held up the box of newspaper clippings that Hausner kept of the crimes.

Imbordino recalled his own childhood growing up on a ranch in Texas and wondered who could ever shoot a horse or a dog.

"Ever have a puppy lick your face?" he asked. "You couldn't kill one."

Then he pointed to a stack of pink folders, one for each of the victims.

"This is what their lives have been reduced to," he said.

The jury found Hausner guilty — but not of everything he was charged with. The jurors felt there was not enough evidence to find beyond a reasonable doubt that he was guilty of two of the murders and five of the other crimes.

Two weeks after the conviction, the families of the victims made their statements. Adriana Gutierrez Cruz, whose sister Claudia had been killed by Dieteman, read an impassioned speech about having to call her parents in Mexico to tell them Claudia was dead.

Then Adriana raised her voice and her eyes to the ceiling and said, "I wonder if I will ever again be able to tell her that I love her and I need her. If you can hear me, please forgive me for not being able to defend you."

The entire courtroom was in tears.

Comparing himself to Manson

Hausner also addressed the jury, and compared himself to 1960s cult leader and murderer Charles Manson.

"When you think of Manson, 50 years from now you'll think of Hausner," he said.

But he did not try to talk anyone out of a death sentence.

"I died Nov. 12, 1994, when my children died," he said, referring to the traffic accident that killed his two sons.

"I've been waiting to die since then, so if you want to kill me, go ahead," he said.

He got his wish: After the jury foreman read the death verdicts, Hausner gave a thumbs up to the media in the back of the court room. And he said "thank you" to the jurors as he walked past them on the way to death row.

"You're welcome," a juror answered.

Thursday: 'Never forget them.'






Publication: The Arizona Republic
Publication date: Thursday, September 8, 2016


Part 4, Summer of Fear: A decade later, still haunted by the memories of tragedy

Michael Kiefer


"Years of suffering still lay ahead for the victims and the families."

Andy Hill

Former Phoenix Police Sergeant

Dale Hausner's trial was drawn out and exhausting. The rest of the "Serial Shooter" trials were short and anti-climactic by comparison.

Jeff Hausner, Dale's older brother, went on trial next, and in June 2009, he was found guilty of attempted murder and aggravated assault for one of the stabbings. He was given 11- and 18-year sentences to be served simultaneously, and he was already serving 71/2 years for the other stabbing. He was never charged in any of the shootings.

Samuel Dieteman had his sentencing trial a month later. The jury considered his testimony against Dale Hausner and spared his life. He was sentenced to life in prison with no chance of release.

The final and most dramatic trial from the summer of fear did not start until June 2011, nearly five years after Mark Goudeau was arrested.

Goudeau had been cordial and seemed sincere in the first trial; in his second, he was a simmering ex-con already facing five lifetimes in prison.

Suzanne Cohen, one of the prosecutors who had tried him in his rape trial, invoked the Bible in her opening statements.

"Beware of the predator who comes to you dressed in sheep's clothing but inside is a ravenous wolf with an appetite to rape," she paraphrased from the Book of Matthew. "You shall know him by his deeds."

She showed photos of the raped women to the jurors. Then she showed photos of those who died, smiling and alive — then dead and bleeding on the ground or in cars. Sophia Nuñez was shown where her son found her, blood dripping down the side of the bathtub.

"He took what he wanted," Cohen said.

'Stuck in my head'

The trial lasted four months. Cohen and her co-prosecutor, Patricia Stevens, organized the case into 13 chapters, each on a scene or murder.

A woman testified as to how she and her 12-year-old daughter were taken in her car at gunpoint from the parking lot of a taco stand in south Phoenix. Goudeau made her strip naked and sexually assaulted her, then made her drive while he assaulted her daughter. Then he jumped out of the car and ran.

"His voice always stuck in my head," the mother said on the witness stand. "It's something I hear over and over. That's been my nightmare."

Goudeau does have a distinctive voice, creaky, almost twangy, in a pitch that defies description as high or low, but is sort of modulated in between.

The woman who had been ordered to strip naked but refused to perform oral sex on Goudeau took the stand. She told of the terror of having a gun pushed to her head and being told she would die, then hearing the click of a misfire and bolting from the car to safety.

The two sisters from Goudeau's first trial also testified. So did another rape victim who said she was hysterical and called her brother instead of police. The brother told her to calm down and he came to her, and together they called police. Then, as she told the court, when the reporting officer arrived he told her, "You don't look like you just got raped."

At that moment in testimony, the case agent, Alex Femenia, a former Phoenix police detective who helped spearhead the Baseline investigation, sat up in his chair at the prosecutors' table.

His eyes got big and he started dialing he phone as he stormed out of the courtroom to find out who that officer was.

Sharing their grief

In August 2011, a dairy worker told how he found the bodies of Romelia Vargas and Mirna Palma Roman in the lunch wagon where they cooked and sold breakfast burritos to workers at a west Phoenix housing development under construction.

He had arrived before dawn and saw that the lights were on in the truck, but he didn't see the ladies who worked in it. When he finally went in and found them dead, he tried to administer CPR, but it was too late. They had been posed like the other female murder victims, their pants unbuttoned and pulled down slightly; they had bullets in their heads.

When the dairy worker finished and left the court room, I saw Vargas's husband, Alvin Hogue, get up and follow him out. I followed Hogue.

Outside, the two men stood in the courthouse hallway. They were both enormous. Hogue extended a hand and said, "I want to thank you for what you tried to do for my wife."

Hogue's voice cracked as he explained he had been told that someone had tried to save her, but he didn't know who it was.

"I wish I could have done more," the dairyman said. The two giant men embraced.

His final say

At the end of October 2011, the jury found Goudeau guilty of 67 crimes, including nine murders.

He refused to cooperate with his lead attorney, Randall Craig, and when a mitigation expert began testifying about Goudeau's impotence during the sentencing phase of the trial, Goudeau pulled the plug and would go no further.

Still, he asked the jury to spare his life. "The only reason I'm standing here in front of you is because of my past," Goudeau said, referring to his 1989 convictions.

"People can change," he said. "I changed. ... I got out of prison and never looked back."

He criticized his attorneys for not representing him adequately.

"You know I can't talk about the crimes you found me guilty of," he said. Defendants aren't allowed to claim innocence after being convicted.

"But I can look you in the eyes and say, 'Mark Goudeau is no wolf in sheep's clothing.' And I can't blame you for the decision you made," he continued. "But I pray that one day you learn the truth about this case and the crimes I have been accused of. They assassinated my character. They painted me as a monster. I am no monster. Mark Goudeau is no monster. I am no monster."

The families of his victims got to speak, too.

Liliana Sanchez Cabrera's mother, Juana, who had attended every day of the trial, spoke to the jurors in Spanish, her words translated: "For a moment, I thought that if I could pull out my heart with my hand, I could show you my pain."

On Nov. 30, 2011, they sentenced Goudeau to death nine times.

In late July 2012, Hausner wrote me a letter from death row.

The Arizona Supreme Court had just upheld his death sentences, and he wanted to give up and die. He had asked the high court to waive further appeals and speed up his execution. Ironically, such requests make authorities question the sanity of the prisoner asking to die, so Hausner was assigned an attorney to represent him against himself.

"Now that I want to get executed, suddenly my mental state is in question. ... I am not insane," he wrote. "... I mean really, what's a guy got to do to get snuffed out?"

He figured it out.

Nearly a year later, on June 19, 2013, Hausner was found unresponsive in his cell at the Eyman Prison in Florence. He had overdosed on the antidepressant amitriptyline, also known by the brand name Elavil, obtained from another prisoner.

Arizona Department of Corrections officials said Hausner died at a hospital in Florence.

A video, released under the Arizona Public Records Act, shows correctional officers putting Hausner's inert body, blood dripping from a corner of his mouth, on a gurney and administering CPR as they wheeled him to a first-aid room where paramedics took over. Then they rolled him out to an ambulance.

One of Hausner's cell-block neighbors wrote me saying he had tried for hours to get someone to investigate the noises from Hausner's cell.

Dieteman and Jeff Hausner are both serving their sentences. Neither would agree to be interviewed. Nor would Goudeau, whose nine death sentences were affirmed by the Arizona Supreme Court on June 17 this year.

Even after 10 years, the emotion has not subsided.

When reached by phone, Goudeau's wife, Wendy Carr, said she did not want to talk about "the summer they railroaded my husband."

Those we lost

Demetris Coachman, who was a juror during Goudeau's death-sentence trial, told The Republic, "I think about it on a day-to-day basis."

When he goes by a car wash, he thinks of Carmen Miranda. When he goes by a charity donation box, he thinks of a woman taken at 32nd Street and Indian School Road. When he goes by bushes, he thinks of the two sisters in south Phoenix.

"I think about the girl in the Volkswagen who heard the gun click and ran; she testified and could hardly talk," Coachman said.

Paul Patrick, who was going to buy a pack of cigarettes when he was shot by Dieteman, waits out the days in his hospital bed in west Phoenix.

Saúl Guerrero, the combat veteran who saved Patrick's life by holding in his guts after he was shot, was inspired to become a paramedic.

I honestly still start crying every time I try to repeat aloud Adriana Gutierrez Cruz's plaint to her sister Claudia, who was killed by Dieteman, calling to her in heaven to please forgive for not being there to protect her.

Sophia Nuñez's daughter, Unique Martinez, posted a rap video called "Last Words" on YouTube to commemorate her mother.

Sophia's mother, Maria, lives in a house in south Phoenix. Inside the living room, the walls are covered with framed photographs of Sophia.

"The life sentence isn't just for Mark," she said. "All of us, our lives changed."

'Don't forget them'

Former Phoenix police Sgt. Andy Hill, the public face of both investigations, handed me a copy of an email he sent out about the two cases in 2011.

The last words of this tale are his:

"A city, a metropolitan area in fear. Two serial-killer cases at the same time in the same city; one a lone predator and the other with two suspects arrested and possible third investigated.

"Seventeen murder victims ...

"A child raped.

"Women raped, sodomized, shot and killed; men shot and killed or paralyzed or permanently injured.

"A child came home to find his mother brutally raped and murdered, a mother watched her daughter raped, a woman forced to undress and when she refused her attacker's attempted rape, had the gun pointed to her head and the trigger pulled. It clicked and she ran.

"Finally arrests.

"But years of suffering still lay ahead for the victims and the families. One child raped still remains institutionalized. ... Many other children of victims have endured years of loneliness, without help, trying to grow up, live, provide for themselves. ...

"Then the trials: rehashing the horrible events, hoping for justice, knowing nothing can change what happened. ...

"Except for a few, the media has long forgotten the victims. ...

"Surely the victims who survived and all the family members and loved ones don't forget. Even a conviction will not stem the tide of the torture of the memories of the evil acts. But a loving and caring community can help comfort.

"Don't forget them, don't forget them, don't forget them."


Getting small in Italy

You have to duck to get through the front door of the apartment building where Giampaolo Tomassetti has his artist studio, a testament to the height of the average Umbrian during the Renaissance, when the building was built.

It was my fourth visit to Città di Castello, a city of about 40,000 in the northwest corner of Umbria, near the Tuscan border, but the first time I had come just for fun and not for research. The city is surrounded by the walls built during the 16th century, when it was under the dominion of the Borgia family and the Papal State, and it's a short walk through tobacco fields to the Tiber River, il Tevere, flowing milky brown all the way to Rome, 140 miles to the south.

Tomassetti, 60, is an accomplished painter and sculptor, a native Umbrian who lives and works in Città di Castello. His studio is a jumble of frames and paintings and other detritus of the artist's life. In the entranceway is a self-portrait of himself as Don Quijote, and it bears three long diagonal slashes across the canvass over the face, the handiwork of an ex when she was through with him, he explained, and he kind of liked the way it looked so he left it.

There were other self-portraits, and paintings of animals and zaftig women, collages with newsprint and straight-lined buildings, evidence of manic work habits.

"When I get depressed, I work, I paint, I play music," he said, and indeed there were guitars all over the three-room apartment; leaning against the wall was a guitar case that had obviously got in the way of his paintbrushes, I imagine, during an evening filled with wine or rage or rapture.

His pallette looked like the midden of a pack rat on drugs, mounds of dried paint built up over years of art and angst.

"You can see I'm using a lot of yellow these days," he said, pointing to a still-wet glob.

We had interrupted him in the middle of his work day, my friend Roberta and I, but it was no problem, and he bustled around to fix us coffee.

We talked excitedly about where ideas come from. Only later did Roberta, whom I have known for years, let on that Tomassetti was her ex-boyfriend, and I didn't ask if she was the one who slashed the painting, though I knew she was capable of it.

Roberta and some of her local associates had lured me to Città di Castello to write a book about the region, and I did, kind of, with a collection of travel stories I wrote while researching my last novel, which I set in the city. I would go for weeks, spending hours in the main piazza, sitting and watching and listening, gathering conversations and observations to flesh out the book. This time, I was back just to relax.

There are no tourists to speak of in Città di Castello, other than the art aficionados who come to see the two museums dedicated to the artist Alberto Burri, who was born there. One of them is housed in a palace in town, the other in a giant black building that was once a tobacco-drying shed. In October, the Guggenheim Museum in New York will hang an exhibition of his work titled "The Trauma of Painting," to commemorate his centennial.

Città di Castello was the high point of a quick trip that started and ended in Rome.

Tourist Italy can be aggressive. The waiters and staff in the hotels and restaurants that cater to English speakers — which includes tourists from all over the world who speak to each other in English instead of learning each others' languages — can be impatient, even rude. But if you speak Italian — mine is passable — you step into a different Italy. And the farther you get from Rome, the more affordable and friendly it gets.

The truth: I had been to Italy many times, but had never gone to Rome except for the airport and a single dinner there before a flight home. So on this trip I made a point of getting lost in the tangled narrow streets of the old city, stumbling by accident upon the Spanish Steps, Piazza Navona, fighting off vendors trying to sell me selfie sticks, eating panini and porchetta from storefronts, failing miserably to decipher the map I bought, and not really caring.

I asked the bartender at my hotel where she would go for dinner if she were me, then armed with a name and a vague location, I flagged down a cab. The driver was a petite and pretty woman in her 20s with primped and tinted hair. Her car radio blasted Madonna, and she chair-bopped as she drove me to the Trastevere neighborhood, then stopped abruptly at a traffic light and pointed me up a pedestrian walkway to my restaurant, an outdoor cafe where the owner hand-carved the prosciutto. On the piazza nearby, a young woman twirled fire pots on chains and collected euros from bystanders. Then, also at the hotel bartender's suggestion, I descended into a basement bar where no one spoke English except the featured musicians, and only when they sang because they were a Beatles tribute band.

From Rome I went by train to Assisi, a medieval walled city on a hilltop that fills with pilgrims to the basilicas of Sts. Francis and Clare; at night the tourists go home and the empty city becomes mystic in the moonlight. Then: local trains to Città di Castello.

It was like peeling away layers. Life became calmer, food and wine were better and cheaper, service got more friendly, even as the Wi-Fi in the hotels got worse. Dinner for two in Rome, maybe 130 euros. In Assisi 70. In Città di Castello, 25. Breakfast at a cafe on the main piazza was coffee and sweet rolls. How much for the coffee? One euro. The sweet roll? One euro. Those panini? One euro. The next day, the silent old lady behind the counter at the cafe did not seem to recognize me, but the cost of breakfast was half again what it was the day before.

My friends would refuse to let me open my wallet. "This is my town," growled my friend Sandro, and after drinks, he marched me to what he thought was the best restaurant in town, showed me the raw steaks in the meat case and told the owners to take care of me. Roberta did the same with the best place to eat pizza.

On my last night in town, I was walking with a friend to have a nightcap in a bar near the edge of the walled city, when I heard someone call out my name.

It was Tomassetti. He was sitting with friends drinking fine red Montefalco wine at an outside table, and he invited us to join them. The night whizzed by, sometimes in English, sometimes in Italian, and sometimes in sign language. And then the surreal happened. Tomassetti made a remark about Americans and a song popped out of my mouth, "Tu vuo fa l'americano," a 1950s novelty song about Italians who wanted to be Americans, a song so kitschy that it has recently been remixed and launched into cybersharing.

And suddenly, all the Italians were happily singing along with me, there at midnight, on a cobblestone sidewalk in Città di Castello, Umbria, Italy, though I think it was me who wanted to be Italian, not they who wanted to be American.


A Vail Tale

From the balcony of my condo at the Antlers, I could hear Gore Creek burbling below me, and I could look up into Vail Mountain, its Aspens shimmering so brightly gold in the late afternoon sun that they looked like they were emitting light and not merely reflecting it.

I had spent the day hiking up to the summit, which you can’t even see from town. I took a zip-line ride. I ate grilled trout at a Creekside restaurant.

It was a home-coming of sorts.

I’ve had a 30-year relationship with Vail, Colorado, but I had been away a while.

Back in the 1980s and 1990s, I was a magazine ski and adventure-travel writer, and I was a regular visitor to Vail, dropping in to interview downhill racers or ski-town chefs, or just to ski. I had my favorite guides, my favorite drinking buddies.

Then, somehow in the late 1990s, I got seduced away by Utah, which was easier to get to from Phoenix than Colorado, and didn’t require a two- to three-hour drive from the airport.

But on this particular fall weekend, the flights were cheaper to Denver than to Salt Lake City, and on impulse, I called around and booked the condo in Vail.

Back in the day, the word on Vail was that it was an ersatz Tyrolian village pinched between 1-70 and the mountain. It has grown. The Antlers is at the western edge of town in an area called Lionshead Village, after the Gondola station there. And the architectural style resembles classier cities I’ve visited in Switzerland and Italy, pastel stucco shops and restaurants, arches and cobblestones, and flower-planted patios, all under the glowing greens and yellows of the snowless ski slopes above.

It’s a pleasant place. Vail’s management has always made sure of that, unlike many Colorado resort towns where the attitude tends toward “I live here, you don’t.” It has a certain serenity, as if stress were not allowed by zoning. It was full of people on that weekend, but somehow it seems to absorb the crowds, and seems wide open.

But it’s also a self-contained Disneyland. Sure, you could plan long daytrips, map out scenic drives. I chose to stay on the property.

The first evening I walked along the length of town (there is a free shuttle bus) trying to decide where to eat before settling at Up the Creek, where I sat at a table right on Gore Creek.

I was up early in the morning and bought an all-day ticket for the gondola ($28) out of Vail Village. The ride itself is scenic, and it drops you off mid-mountain at a couple of trailheads across the slopes and through the woods to the top of the Lionshead gondola a mile or so away, where there is a family-oriented activity center.

There are ropes course towers for adults and children, stables and restaurants, a couple of zip lines (one of those activities, like ballooning and parasailing, that feels less dangerous than it probably is), and climbing walls.

And trails snake up to 12,500 feet where you can look out over the vast back bowls that make Vail one of the largest ski areas in the world.

A thunderstorm shut the gondola down briefly, and the rain cooled the air to jacket temperatures. But the clouds put on a worthy show, and I drank a coffee until I could get back down.

That evening, I drove to the supermarket and bought a bottle of red wine and a steak to cook on the grill on my balcony. It was cool enough to light the fireplace in the living room, and by nightfall, the skies had cleared enough so that the stars filled the slim slit of night sky between the mountain and the eaves of my balcony.

I’ll be back, maybe this winter.


On the death of writer Charles Bowden

This morning I got an email from the newsroom asking if I could help them confirm that the Tucson writer, Charles Bowden, had died.

I hadn't been in touch with Chuck for years, I didn't realize that he had moved to New Mexico, but I sent a few emails myself, one to my friend, the Scottish novelist Barry Graham, and he sent a few more emails, and within minutes, he told me it was true.  Bowden was 69.

I read in the Tucson Weekly that he died in his sleep while napping. The reporter writing the story for my newspaper told me that it was not yet certain how Bowden had died -- possibly of complications from Valley fever, which Barry told me he had for years. 

Bowden was the author of more than two dozen books, mostly about the Southwest, ranging from the environment to the border and its drug wars, some of them so intensively researched and attributed that I felt vertigo wondering how he could juggle so much information in his mind and then get it down in words.

I went to my library and took down the copy of my favorite, Blues for Cannibals, which he published in 2002,  a wandering memoir and extended metaphor in which life is a mesquite tree; the book's prose is as lush and tangled as the branches of that hard-to-kill tree.

He wrote it as he was struggling with the deaths of four close friends, from cancer, a freak accident, and suicide. But it's about life, or rather the things that make life:  sex and lust and art and beauty and hate and murder and weather, and things you knew but never thought of, like inhaling the scent of a dog's face. 

It is episodic, picaresque, expressionist, old testament prophetic. On one page he's gardening, on the next he's banging a woman on the hood of his pickup truck in the desert, then at an execution, then writing about a historic Yaqui hero, then telling of an uncle cutting down a nephew who hanged himself. He writes about food and cooking in ways that are lustful. When he writes about desert flowers, it is near pornographic.

I was very pleased when he told me that the title was inspired in part by a story I once wrote about an Arizona State University professor who proved that the ancient Anasazi Indians were not peaceful potters and pueblo builders, but in fact cannibals.

He inscribed my copy with the words, "Michael, I hope you can tolerate this stuff, Chuck Bowden."

Today, I opened to this passage:

"I live in a time when death is off the table, the thing unsaid. We wish to live forever and because of this desire, we hardly live at all. I am trapped in the great age of caution, of watch out, of fear. But I was blooded in the age of desire and lust and love. I will always be a mesquite waiting for the rain and knowing it is coming even in those summers when it never comes at all."

And now he is gone.

We were not friends. I did not know him very well. But we had things in common; we wrote for some of the same magazines, we both started out in academia and then covered murder and mayhem for newspapers. He taught in Chicago, and I had spent so many years there that I started to think that I was from Chicago, too.

Bowden was almost famous. He had a cult following. His books sold. He was a regular contributor to the best magazines. And he was a mentor to me and to so many other less successful aspiring writers.

"I can't think of a writer who was more generous to other writers," Barry Graham told me today over the telephone.

Indeed, he wrote flattering blurbs to two of my books. He seemed aware of what I had been writing.

A few times I had the pleasure of visiting with him on the back patio of his Tucson home, drinking so much red wine that I was unable to drive home to Phoenix and would have to get a hotel room in Tucson. Barry Graham was even less polite than me and would linger until he was invited for dinner. Bowden was an accomplished cook.
"I often think about how, when I spent the night at his place, and we were up late and drunk, he'd still get up at three in the morning to write, a routine he stuck to no matter what," Barry told me today.

But the visits were really more like having an audience with a great mind; Bowden did most of the talking, and that was fine because the stories were so intriguing, like how he was pulled over by a cop as he was transporting the corpse of a friend packed in ice in the bed of his pickup truck. I particularly liked that he would play with young and full-of-themselves New York magazine editors by telling them something along the lines of, "I have to get off the phone, because it's Tuesday, and this is the day the mail truck comes down to the junction," when in fact, he lived in a Queen Anne bungalow in town near the University of Arizona.

Truth be told, there are stories that I can't recall whether he actually told me or I read them. It was the same voice, deep and resonant, ironic yet basic, full of wisdom, full of life. And I hardly knew the man.

The end of Blues for Cannibals:

"Rise now, kick the legs, ignore the screaming of the lungs. Back to shore.
The salt taste bites the tongue.
I think a woman is part of the answer, but then, I am a man."

Back to Lac Leman

It took two trips to Lausanne, Switzerland, to discover my new métier: absentee vintner of Chasselas, a fine, buttery, white Swiss wine from the Lavaux region on the banks of Lac Leman -- which English-speakers call Lake Geneva. 

I came to it through mental acumen, competitive superiority. Never mind the details.

As a long-time travel writer, I have a longer list of places I want to go back to than places I want to visit for the first time. Lausanne was near the top of the list, with its impressive views of the pre-Alps behind and the mountains of Evian, France across the water. I look at the views every day at home in the screensaver photos of two different computers and the background photos on my website and Facebook pages.

My first trip there was in April 2013. It was overcast and unseasonably cold. The vineyards were trying to come out from under winter brown; the mountains were still snow-capped, the gray clouds made the light on the lake flat and mysterious. But the flowers on the lake front promenades were exploding in pink and purple blooms.

I went back last month, July 2014. It was still overcast to the point of rain, languidly humid, achingly beautiful, green as Eden. I walked along the lake for hours, beyond the hotels and the Olympic Museum to where the path is just wide enough for two-way foot traffic, past sun bathers and swimmers, villas and boat docks.

In the evening I returned to the nightclubs in the city’s downtown, which is really uptown in an area they call the Flon after a river that ran there until they covered it over to keep it from flooding. Now it’s a conclave of rehabbed warehouses that throb with techno music from happy hour into the morning.

The Chasselas, the Pinot noir; hot chocolate as thick as hot pudding; fera, a white lake fish that swims twice, according to a local saying: once in the lake and the second time in butter and wine sauce.

Lausanne is headquarters for the International Olympic Committee, but the Olympic Museum was closed for renovations during my last visit. This time it was open. A German journalist there asked me, "Would Americans actually visit the museum?" Well, yes, I thought. There are exhibits of the torches carried, dioramas, photos, uniforms, history. It's worth the time.
Montreux is a short bus ride to the east, and the Montreux Jazz Festival seems to go on all summer long, and that is a fantastic thing. Outside the venues, it's a carnival of colored lights and booths selling everything you want, from food and drink to memento t-shirts.
This year’s performances included Van Morrison, Milky Chance, Stevie Wonder, Buddy Guy, Pharrell Williams and Outkast.
I was given tickets to see Robin Thicke, who I liked better than I expected, the debonair singer playing a baby grand like he was channeling Ray Charles, backed by a spectacular all-Black soul band.
But the opening act, Paloma Faith, blew me away. She's a bleached blonde, working class London girl with a tight dress and a big voice that ranged from baby doll to sultry. She did her genuine best to speak French, and murdered it, but it charmed the audience anyway. She sang Billy Holliday and Van Morrison and Sly and the Family Stone. And the final numbers rocked so hard, I thought the stage would levitate. I never felt such energy in a concert hall. I had tears in my eyes.
Ah, but the wine…
The vineyards at Lavaux are a UNESCO heritage site, and the wines, mostly Chasselas, Sauvignon Blanc, Pinot noir and Viognier, are superb. Very little is exported, because the Swiss drink it all themselves. I had hiked here on my last visit, sampled the wines. This time, I sat on my ass on a covered sun deck, drinking Chasselas and watching rainclouds over the lake below.
And that’s where I discovered my new métier. Truth be told, I won a trivia contest. The prize: Three vines in the Lavaux vineyards and a plaque with my name on them next to the vines. And since each vine produces about a bottle of wine per year for four years, I had won three bottles of wine per year for the next four years.
Now when people ask me what I do for a living, I can tell them I'm part owner of a Swiss vineyard.
They won’t know any better.

How to speak Euro-English

We were running a few minutes behind, which in Switzerland is a cardinal sin.

"I will invite you to follow me with a nice speedy leg," the guide said to us. 

To me, it sounded like she wanted a swift kick in the pants, but it made perfect sense to the other people on the walking city tour of Lausanne: a Spaniard, an Italian, a Belgian, a Russian, two Germans,  a French-speaking and a German-speaking Swiss. They dutifully picked up the pace. I took out my notebook and jotted down the sentence.

The tour was a planned event at a gathering of journalists from eight different countries. In Lausanne, the language on the streets is predominantly French, but the language of the gathering was English, though very few of the participants were native speakers.

The Swiss are phenomenal linguists. So, I have noticed, are Scandinavians. Not so much the citizens of other countries of Europe. They don't seem to learn each others' languages, sometimes because of deep-seated cultural conflicts.  

Instead they communicate with each other in English, or rather, in what I call Euro-English, which, like Yiddish in another century, is an amalgam. 

Often, in effect, they are speaking their own native languages using English words, and it makes perfect sense to them, because the syntax and cognates of their own languages may be more similar to each other than they are to English.

"You go always straight," I was told in Lugano after asking a Swiss woman for directions. In Euro-English, that means, "It's straight ahead."

But language is more round-about than straight, and how multilingual people decide which language to use when they speak to each other is a mystery.

Most of my Spanish-speaking friends at home in Arizona also speak perfect English, but when we get together as friends, we usually speak Spanish, I assume because Spanish has elements built into it to express friendship and affection.

But while my friends born in Mexico talk to me in Spanish, their kids talk to me only in English, even though they speak Spanish to each other and to their parents. So if someone of the younger generation speaks to me in Spanglish,  another amalgam, it's a showing of trust and acceptance.

Language flows like water. It seeks its own level based on comfort and linguistic ability. If you speak English better than I speak Italian, we're probably going to speak English

I have a journalist friend in Lausanne who comes to Phoenix regularly. His English is not bad. My French is ok. But because one of his parents is from Uruguay, his second language is Spanish, and that is the language we gravitate towards because we both speak Spanish better than I speak French or he speaks English.

Sometimes ego gets in the way: While in Lausanne, I made a remark in Italian to an Italian journalist, and she immediately corrected my pronunciation before asking my name. I offered to help her with her even worse command of English, and she was offended.

Then, later that week, in Lugano, I spoke Italian everywhere, with no complaints. Still and all, the day I spent there with a guide of Italian-Argentine origin was mostly conducted in Spanish, because my Spanish was better than her English or my Italian.
Nuance gets lost across cultures: One evening in Montreux, an Englishman and a Scottish woman and I were reflecting on the variants of our mutual language and discussing how the closer you are to the streets and the farther you are from education the less intelligible your accent will be to foreigners. A Russian woman thought we were talking about politics and excused herself because her bosses had told her to avoid political discussion at all cost.

I wonder how we might have expressed it in Euro-English.

The native languages wired into our brains make second languages seem like Microsoft programs running on Apple computers. It's called language interference. 

A lot of Euro-English sentences start with "It is possible to...," or "It is necessary to..." because that's how sentences start in French and Spanish and Italian. In standard English, we state options with "either/or" constructions. In Euro-English, as in most European languages, it's an "or/or" choice, as in, "Or you go this way, or you go that way."

So many things in Euro-English are "typical," apparently meaning "locally common," or "roman-teek," and I haven't figured out if that refers to a period or a mood. 

And don't confuse a strong sense of time with a sense of tense.

"Charlie Chaplin has been living a long time in Vevey, Switzerland," I was told, though the man has been dead for decades. But it makes perfect sense to French or Italian speakers, because they use the present perfect tense in their languages to convey the past. 

Once, in Italy, I heard a woman explain that cypress trees came to Italy from "actual Lebanon," because in most languages, "actual" means "present-day," and not "real." It's commonly heard in Euro-English usage.

And in Euro-English, the sentence "This metro is very particular, because it has wooden wheels," as I heard in Lausanne, means that the metro is "unique," not that it is "choosy" or "specific."

What to think of a person who is "world-known" in Lausanne? And what to make of a town whose "downtown" is significantly uphill?


Maybe that can be the title of a PBS series on Euro-English.


France for a day

I went to France last week for the first time.

I learned to speak French when I was 11, majored in French in college, minored in it in graduate school, but it took me until I was 61 to actually get there.

Three times in the last nine years, I was close enough to see it. Two years ago, I saw it from the top of a tower in Basel, where Switzerland, France and Germany all come together; last April, it teased me from across Lake Geneva in Lausanne, the snowy mountains of Evian, France, made famous by the logo for the bottled water. The closest I came was in 2005, when friends and I decided to ski across the border from Sestriere, Italy, but it was snowing too hard and we had drunk too much grappa at lunchtime to venture just one mountain farther to France.

So last week, when I arrived in Lausanne a day ahead of my business obligations, I got on a boat and headed across the lake.

It was an overcast morning, which turned the sky and the water into reflective whirls of gray. But the ride was smooth, and the benches on the outside deck were almost dry. And after about 35 minutes, I was walking along the promenade in Evian, looking back at Switzerland.

The difference between the two countries was nowhere near so dramatic as driving across the border from Arizona to Mexico, but it was still palpable, a wrinkle in time and space and attitude, perhaps:  The same colorful row houses and baroque buildings with elegant storefronts, though maybe a bit less freshly painted, the same accent in the voices of the waitresses, if just a little bit less polite, the same wafting restaurant aromas, if a bit stronger and more garlicky. It was delightful.

I strolled along the narrow cobblestone streets, watching people and eaves-dropping on conversations. I sat at a cafe and drank coffee and ate crepes. I sought out the source of the bottled water --  It runs anticlimactically out of two spigots on the retaining wall beneath a hillside park, and local residents trundle their empty bottles there to fill them up for free.

Maybe I stayed for two hours. Then I went back to the ferry and dozed in a sling-style deck chair for the short ride back to Lausanne.

It wasn't much. But now, if someone asks me if I've been to France, I'll answer, "Why yes, of course, yes I have."

"Mais oui."

Eternally existential

Barefoot dude in a flannel shirt hanging off a building.

I'm somewhere outside of Lausanne, Switzerland, sitting on the grass, waiting for the show to begin. It's a play of sorts, a supposed one-room apartment seen from above,  except it's really hanging perpendicular off a building that looks like a junior college. The silent protagonist is supended from wires, standing sideways on the side of the building, and the intended effect is that we are seeing him as if from above, except he's sidewqys. This is art.

"Je tombe," a voice intones, in a classically deep French voice, which makes it seem all the more profound.

"I'm falling. And I'm running, though I never leave my room."

Oh, OK, it's a millenial theme, but that's all right by me, because when I was 20, I had my mattress on the floor, too, and I read Sartre and Camus and considered myself an existentialist. 

So I sit through the next hour, and I clap when it's done, not because it's good, but because I appreciate the youthful artiness of it all, and I appreciate that the protagonist was hanging off the drop edge of yonder during the whole performance.

Then  I go to a disco in the Flon district and watch Swiss and Russian and Italian girls dance desperately to forget it all.

All Along Lac Leman

The Swiss are so incredibly polite.

This was my sixth trip to Switzerland, but I had to come to the French-speaking part of the country before anyone ever told me that my family name in Swiss German slang means "stoner" or "pothead."
I'd been traveling around all these years and my name might as well have been Michael Reefer instead of Kiefer, and yet no one had ever so much as cracked a smile until my new friend Pascale blurted it out in a wine bar in Vevey. We'd had a glass of the digestif abricotine,an apricot white lightning, and more than a bottle of Chasselas, a dry and buttery white wine grown here in the Vaud region. You see the vineyards all along the shores of Lac Leman -- Lake Geneva to you -- and it's so good that the Swiss drink it all so there isn’t enough left over to export.
It was a cloudy evening in Vevey, but that just enhanced the light off the lake along the promenade. You could see all the way past Montreux to the eastern end of the lake, and across to the south, less than 20 miles away, the glaciers atop the French alps shone like night lights. Though spring was late this year, the flowers were everywhere in beds along the lakefront. More than one Swiss I talked to grumbled about their tax dollars going to flowers, but I loved it, and I loved watching the lovers walk hand in hand, hugging and kissing without caring who was watching. They called out to perfect strangers. “BON-soir,” the women practically sang in soprano voices.
Charlie Chaplin lived and died here in Vevey. The 18th Century philosopher Jean Jacques Rousseau lived here as a young man, and folks still gossip about how he seduced a beautiful and rich married woman who lived in what is now the music academy on the grand square. Such things usually end badly, philosophically speaking, and poor Rousseau has been accused of contributing to upheavals like Romantic fiction and the French Revolution.
I started out in Geneva at the westernmost edge of the lake and took the train to Lausanne, less than an hour away, at about the lake's midpoint. There, I checked in to the venerable old Beau Rivage-Palace Hotel in a waterfront neighborhood called Ouchy. From the balcony of my room, I could look across at Evian, France, or more accurately at the Alpine mountain ridge that became the logo on the famous water bottles.
The metro is just a block away from the Beau Rivage, and with a card they give you at the hotel, you can ride for free. Most transportation in the region uses the honor system; they only occasionally check for your ticket or Swisspass or regional transport card, but if they catch you without one, you pay a fine of 80 Swiss francs, which is about $84.
The night clubs and fancy restaurants are four or five metro stops uphill in a neighborhood called Le Flon, and from there you can easily walk up toward the historic university and the cathedral, which I mention mostly because you want to take the stairs down from the cathedral and stop at the cafe called Le Barbare, where they prepare an incredible cup of hot chocolate. The Swiss didn't invent chocolate -- it came from the new world -- but they did figure out how to whip it into the smooth confection we know today. And a man named Nestle, who lived nearby in Vevey, figured out how to mix it with milk powder to make milk chocolate.
There are some things about a lake: the light, the smell, the sound of the water lapping against the rocks. In the summertime, there's swimming and water skiing as well, but it had been a long wet and cold spring, and I wasn't going in, though I saw some foolish college boys shrieking as they jumped off a dock in a residential area, and a couple of old men floating like walruses on what I had to imagine were lifelong daily regimes despite the snow-melt temperature.
But I went out on the water in one of the ancient steam-powered paddle wheelers that skirt the shore past the vineyards and take families and couples on afternoon cruises from town to town. I thought it might be a touristy thing to do, but soon realized that it was a local outing, lunch and a boat ride, and I rode it all the way to the castle of Chillon, a thousand-year old bastion on the lake that is so romantic that the poet Lord Byron sulked and brooded and composed one of his more famous works, The Prisoner of Chillon, about a monk named Francois Boniver, during his stay in Ouchy. He also committed vandalism by scratching his name into a column in the Chilllon castle dungeon where Bonivar had been imprisoned.
The next day I was in the village of Chexbres a few train stops west of Vevey in a vineyard area known as Lavaux, which since 2007 has enjoyed status as a UNESCO World Heritage site, a designation that affords protection of cultural resources.
"Il faut arriver a une heure buvable," said winemaker Eric Bovy, as he drew shot glasses of his 2012 Chasselas from an oaken barrel bearing a scene painted by his grandfather."You need to come at a drinkable hour," which means something like "It's five o'clock somewhere."
To be exact, it was 11 in the morning, and it was already Bovy's second wine-tasting appointment of the day. Nonetheless, he uncorked a bottle of his 2011 Chasselas and helped my companion and me finish it off. (Buvable, I also learned, could be said of a woman who becomes friendlier after a few drinks.)
Just then one of the paddle wheelers steamed into the dock below at Rivaz.
"When the whistle blows, you are allowed to have a glass of wine," Eric said.
Rationalizations, justifications; we were drinking anyway, and maybe his conscience was bothering him more than mine was. He threw a big hunk of salty cheese up on the slicer and laid a full plate in front of us.
"What kind of cheese is this?" I asked.
"I don't know. Something my wife bought."
The boat whistle blew. We raised another glass.
An hour later we were hiking through the vineyards with a nice wine buzz, my friend and I. There were no cars on the narrow roads, no people on the paths and walkways. The vineyards above were just trying to leaf out. The redbuds and fruit trees were in spring bloom. The grass was already a foot tall, and lilac-colored wisteria hung from the fieldstone walls of the houses. Below, the lake shimmered. We walked to the village of St Saphorin, then caught the train back to Vevey.
There was a fruit plate and a half bottle of wine waiting for me in my room at Les Trois Couronnes, which I partook of before going to the hotel spa to sweat out the day's excesses and exercises in the hammam steam room.
The manager at Les Trois Couronnes is a handsome young man named Jay Gauer, and one night over dinner, he explained the concept of wellness food.
"When you think of detox, you think of punishment," he said. "We think of pleasure."
Indeed, the hotel's food concept is based on wellness, a European word that means healthy more than it means fitness or diet. It's based on a Mediterranean diet high in grains and olive oil. After a year, it earned the chef a Michelin star, so, "Why change it?" Jay said.
Indeed, a bite of pan-seared tuna on a bed of riced squash. White and green asparagus on an asparagus puree with delicate sauces. Broiled sea bream with pistachios and hints of mint and lemon grass. A cheese plate. The usual Chasselas or pinot noir from the region.
Jay likes for the hotel visitors to return home with "stories": a romantic dinner for two at a solitary table above the lake in the vineyards; a watch-making class for two.
But let's talk more about food. The lake is there, so there is a lot of fish, specifically perch and a Lake Geneva whitefish called fera, which of course go nicely with all that white wine. Asparagus with every meal. Beef, though horsemeat is a local favorite, and rosti, which is a bed of fried, shredded potatoes with onions, which can be served as a side of potatoes or as the base for egg, ham or vegetable dishes.
Believe it or not, I had come to the region with the hope of staying outside as much as possible, but Mother Nature did not cooperate as much as I would have liked. The Swiss are always so prompt -- they make watches, remember -- and everything is so on time and organized. But even they can't control the weather.
I was supposed to go traipsing through Alpine meadows at 10,000 feet at a place called Rochers de Naye, the terminus of a cog railway that climbs straight up from Montreux. It was May after all. And indeed the meadows below were green and grassy under drizzly skies. The views were steep and spectacular--until we came out of the last tunnel near the top into a February snowstorm. So when things don't work out the way you planned, you can eat lunch. I opted for fondue, and my guide Angela ordered an asparagus salad with cherry tomatoes that looked someone had plopped a garden on her plate.
Angela is Italian, and she has a habit of quite innocently speaking in three languages at once. The first sentence might be French, the second Italian and the third English, and she would only linger in one language or the other if the subject matter demanded it. Every now and then she would burst into Spanish, just to see if I were paying attention.
Talk about global citizens: I met a woman in the Geneva airport who learned Danish as a child, but was raised in Colombia and lived in Lausanne. She spoke Spanish at home with her Swiss French husband and her three-year-old son, who was born in Singapore, though he spoke French at school. And she spoke English with her own parents whom she was going to visit in Miami, and she hoped her mother wouldn't speak Danish because four languages, as opposed to three, just might short-circuit the kids.
Back to the traipse: Angela and I rode the cog railway down below the snow line and into the greenery and got off to walk down staircases and pathways to the lake in Montreux.
Montreux is famous, among other things, for its annual music festival. Outside the casino is a statute of Freddie Mercury, the late lead singer of Queen, who lived and recorded in Montreux.
The weather did not cooperate the next day either. I took the train to the village of Aigle, beyond the lake, with the intention of continuing up to the glacier above the ski area, Les Diablerets. It, too, was socked in, so I hitched a ride to Les Bains de Lavey, a water park filled with hot spring water, where families go to pass the day on a weekend when the weather is ugly. The largest pools are outdoors, and the water is warm enough that you don't really care if it's drizzling or snowing on you. As a relief to most Americans, in the French-speaking part of Switzerland, people wear bathing suits in the saunas and steam baths, an apparent Calvinist hangover in contrast to the rest of Switzerland where everyone tends to go nude. But it becomes a social event, with whole groups of friends gather to talk and lovers float by locked in embrace.
On Saturday night in Vevey, they had set up a giant party tent in the Grand Place, with beer taps and giant sausages. Inside, a band played guitars and other stringed instruments I didn't recognize. A piper played, and the percussion was provided by one band member who stomped his feet rhythmically on some sort of board. The words were in French, but the melody and the music were decidedly Celtic, and though most of the partiers were sitting at tables drinking beer or leaning on the bar, a few brave souls hopped and bopped in front of the stage.
I wandered back through the crowds on the waterfront to the bar at my hotel. The bartender warned me that the beer on tap (although very good) was more expensive than the pinot noir I was drinking. I sat trying to figure out what language the piano player was using as he sang a Billy Joel tune. After a few lines, I realized he was singing in English, and I asked the bartender if he could tell.
"I'm English, and I can't understand a word," he said in French. We laughed and switched to English ourselves.
Somehow, after a few more glasses of wine, the lyrics to the songs became more understandable. The piano player’s voice went gravelly, his eyes winced as he sang a version of Lionel Ritchie's "Easy Like Sunday Morning" that was so beautifully smooth and soulful that I asked in French if he had been a black man in an earlier life. He didn't understand, so I repeated it in English -- he was singing in English after all. Still no.
"I'm Italian," he said, and he smiled when I posed the question a third time in Italian. Then he asked if I would like for him to serenade me in Italian.
"Certo!" I answered.
"Bien sur!"
"You bet!"

For Dad

May 17, 2014

My father, Robert Taylor Kiefer, died this morning.

He was 88, and he had been fighting cancer for several years. Doctors thought he would be dead a long time ago, and I have joked, as recently as yesterday, that he was as hard to kill as the mesquite tree in my back yard, which has fallen over twice and though I’ve sawed it up, it keeps growing back.

Bob Kiefer could be a generous man if he liked you, and he probably liked you from the start, unless you gave him good reason not to. He liked to tell jokes and give you the needle. He could be extremely difficult.

I know a lot of you are thinking  that sounds a lot like me, but it’s probably just a Pennsylvania Dutch genetic trait. My mother adapted an old “Dutchie” adage and said, “You can always tell a Kiefer, you just can’t tell him much. I’ll admit that we fought bitterly for many years.

Before he got out of the Army, my father had been a drill sergeant, and he thought he wanted to be a physical education teacher. He played football and basketball in college. But when he started interviewing for teaching jobs and they told him he couldn’t smoke or drink, he decided to go into some other line of work – not that he was a smoker or drinker, mind you, he just didn’t want anyone telling him what he could and couldn’t do.

Instead he went into sales, but he remained a jock, and I remember all during my childhood and young adulthood that he played softball and basketball and tennis and handball. My mother said that, even as an old man, if she didn’t know where he was, she’d look for the nearest ball game in the neighborhood, and find him there watching.

My father was a large man, more than six feet tall, and he weighed well over 250 pounds for most of his life, though the cancer whittled him down to my size at the end. He asked to be cremated, and my mother and my brother want to have a military funeral for him and have his ashes interred in a veterans’ cemetery in Cape Cod, where he spent his last years.

When I was a kid, I used to look at the medals in his closet, a couple of bronze stars that he’d earned in the Army Air Corps during World War II as a nose gunner in a B24 bomber. His leather bomber jacket hung in the closet. On the shelf nearby he kept a photo album from the war, full of tiny little black-and-white photos with scalloped white edges of his crew and his plane, “Pistol Packin’ Mama,” with its requisite nose cone painting of a scantily clad All-American babe.

My father and I had both attended Lafayette College in Easton, PA, where my grandfather had been an administrator. When I went past the shoemaker’s shop or into the butcher store, they would ask about my father, though he hadn’t lived there in decades. We actually shared one professor, my grandfather’s friend, Sam Pascal, a gnarled little, one-armed Italian dynamo, who taught me to speak Spanish and Italian. When my father came back from Italy after the war, Dr. Pascal told me, he had asked him several questions in Italian, which my father understood, but answered in English.

But my father never told me how he earned the medals, because I think it scared the shit out of him.  It took my mother half a lifetime to convince him to go back to Europe for a visit. My mother told me that at one of the squadron reunions they attended later in life, a man my age approached my father and shook his hand reverently because his own late father had talked about him

When I was in my early 20s, my parents invited my brother’s girlfriend’s parents over to the house for dinner. They were Germans, and the girlfriend’s father had spent time here in Phoenix at the prisoner of war camp during World War II. After the war, he made his way to New Jersey, where he settled down to raise his own family. At the dinner table that night, the talk turned to the war. My father explained that he had flown in the daytime air raids on the oilfields of Ploesti, Romania. Heinz, the girlfriend’s father, replied that he had been an anti-aircraft gunner at Ploesti. There was a long silence, and then the two men started laughing.

Two and a half years ago, I was in Assisi, Italy, eating dinner in a small trattoria off a side street from the main piazza and enjoying a glass of Montefalco red wine. The couple seated across from me was from New York via California. Their waiter had brought them a carafe of wine but had forgotten to give them glasses. They called the manager, who could only shrug and turn his palms up to say, "No Eeng-leesh." As he walked by to fetch the waiter, I stopped him and translated. He smiled, the New York Californians got their glasses, and everyone was happy.

I chatted through dinner with the couple, and they mentioned that a museum in town had an interesting exhibit about Assisi during World War II, and how the Assisi Underground had sheltered Jews who might otherwise have been sent to concentration camps.

I told them what little I knew about my father’s service in the Army Air Corps during the war, how he celebrated his 19th birthday in Naples, that he'd seen a prodigious number of planes go down on his first bombing mission over Ploesti. I repeated the few stories he had told me, about bullet holes stitching down the glass of his turret, where he had nowhere to duck, about seeing German jet prototypes zipping past the lumbering old propeller-driven bombers, about how they would return from missions in the freezing early morning hours and line up on the tarmac for a shot of whiskey poured into a metal mess cup, about the need for constant vigilance on the ground, never knowing which Italians were on which side.

Three Italian couples were seated at a nearby table, and one of the women seemed to be listening to our conversation. When they got up to leave, the woman said good night to me. I asked her in Italian if she understood English.

"Yes," she said. "Tell your father, 'Thank you.' "


Covering Marissa

Juror: DeVault’s three children saved her life

Michael Kiefer

The Republic |

April 30, 2014

Marissa DeVault's children saved her life.

DeVault had certainly plotted the murder of her husband, Dale Harrell. She had taken out insurance policies on him, talked to her lover about having him killed, asked an ex-lover to "take care of him," had told people he was already dead.

And ultimately, she confessed to caving in his head with a claw hammer in January 2009 in the bedroom of their Gilbert home.

Her trial began in early February in Maricopa County Superior Court. DeVault claimed that Harrell was abusive and that she killed him in self-defense. Prosecutors paraded friends and neighbors to the witness stand to say they had never seen Harrell raise a hand against her.

But then their oldest daughter took the stand in late March.

"It happened fairly frequently," Rhiannon-Skye DeVault Harrell, 18, told the jury as she detailed the beatings. Rhiannon testified again during the sentencing phase of the trial, and so did her two younger sisters.

It was not enough to persuade jurors to acquit DeVault, or to find her guilty of the lesser crime of second-degree murder. On April 8, DeVault, 36, was found guilty of first-degree murder. A week later, the jury determined that the murder was especially cruel, qualifying DeVault for the death penalty.

But the testimony affected the jury members as they pondered whether DeVault, 36, should spend her life in prison or take a one-way trip to death row.

On Wednesday, after three days of deliberations, the jury chose life.

On June 6, after hearing from the victims and DeVault's family, which in this case are the same people, Judge Roland Steinle will decide whether DeVault gets natural life in prison or if she will have a chance for release after 25 years.

The children swayed the jury.

"I absolutely think they did," said juror JoAnn Verdun, 33, of Peoria. "It was a big part of my experience and that of others."

Rhiannon was relieved.

"When you grow up with this kind of thing, you get used to bad news," she told The Arizona Republic on Wednesday after the verdict. "Slightly less than bad news is really good news. Sometimes not losing is the same as winning."

Not everyone agreed.

Harrell's cousin, Becky Mott, of Gilbert, told The Republic, "I wanted the death penalty. I didn't want her to have any freedom at all. I wanted her to have solitary confinement."

But Amy Dewey, of Tempe, who was friends with both DeVault and Harrell and once lived in their house, had mixed emotions.

Dewey attended nearly every day of the trial.

"When I first started coming, I was so angry. I wanted the death penalty," she said. "But now, I'm hoping for life as long as there's no chance of release."

Verdun, the juror, had a similar change of thinking. When she came into the trial, Verdun says, she believed in the death penalty.

"I no longer think that death is a logical penalty — in any case," she said.

It was a brutal murder.

When police responded to DeVault's 911 call at 2:45 a.m. on Jan. 14, 2009, they found her hysterical and covered with blood outside the Gilbert home she shared with Harrell, the children and DeVault's friend, Stan Cook.

Harrell, 34, was upstairs on the floor next to his blood-soaked bed, writhing and thrashing, with the right side of his face and head caved in. Cook, had apparently taken the hammer away from her. Harrell died three weeks later.

Police coaxed a confession out of DeVault on the morning of the attack. She claimed that she killed Harrell in self-defense because he had raped and choked her and had abused her for years.

DeVault was bailed out of jail by her lover, Allen Flores, whom she had met two years earlier on a website that helped women meet "sugar daddies."

But then DeVault changed her story: She suddenly claimed that Cook, who has brain damage that seriously impairs his memory, had killed Harrell while defending her. Flores helped out by editing Cook's confession letter.

Police did not buy the new story. The prosecution claimed that DeVault killed Harrell to collect on insurance policies she had taken out on him.

The details were sordid. During a forensic examination of Flores' computer, a specialist hired by the defense uncovered child pornography. Flores has not been prosecuted for the pornography or for his assistance to DeVault before and after the murder. Instead, he was granted limited immunity by both the Maricopa County Attorney's Office and the U.S. attorney in Phoenix, though County Attorney Bill Montgomery avers that he could still be prosecuted. In fact, the prosecutors defended Flores by trying to have the pornography precluded from evidence, claiming that the defense had violated his Fourth Amendment rights against illegal government search and seizure.

Flores became the principal witness establishing DeVault's premeditation in the murder. On the witness stand, Flores told how he had lent more than $360,000 to DeVault, money she told him she would pay back from trust funds and insurance monies she was due.

She told friends and family that Flores was her dead stepfather's gay lover, even though her stepfather was neither gay nor dead. And Flores isn't gay. She told Flores on one occasion that Cook already had killed Harrell and on another that she would have Harrell killed while the two stayed at a casino hotel.

Another of DeVault's former lovers also testified that DeVault had approached him to "take care of" her husband. He refused.

The trial was tumultuous. Superior Court Judge Roland Steinle frequently sent the jury out of the courtroom to reprimand the prosecutors and defense lawyers for their tactics.

He scolded the defense for arranging a telephone conference with one of DeVault's daughters despite a court order and for trying to introduce a PowerPoint display without prior notice.

He scolded the prosecutors for trying to embarrass witnesses with sexual details.

The jurors took a week to come back with a guilty verdict. They refused to agree that DeVault had committed the murder for monetary gain, even though the prosecution based its case on DeVault killing Harrell for insurance money.

"There was too much circumstantial evidence," Verdun said.

Instead, the jury settled on the more vague aggravator that the murder was especially cruel.

DeVault seemed optimistic as she waited for the jury's decision on Wednesday. She was dressed in a black blazer, with her auburn hair pulled into a ponytail that reached most of the way down her back. She gasped and cried and smiled and patted her attorney on the arm after the verdict.

Mott sat with her husband and Dewey in the back row. DeVault's mother and daughters did not attend.

Dewey was reflective after the verdict.

"We were friends," she said of DeVault. "There were times (during the trial) when I felt sorry for the person who used to be my friend — not the person who was manipulative, but the one who used to be my friend."

DeVault's mother, Samantha Carlson, was driving Rhiannon to work when she was reached for comment.

"I am grateful and relieved because I don't want the children to have any misassigned guilt for not speaking well enough when they look back on this," Carlson said.

Rhiannon got to the point.

"If she had gotten the death penalty, I would have been two for two on parents," she said. "She is going to get life now, so I'm at one and a half right now."

Juror JoAnn Verdun went home and posted on Facebook.

"At the beginning, I was sitting across from a monster who killed her husband for money," she wrote. "At the end, I was sitting across from a human being. I voted for life because her children should have the right to a parent, if they choose, at 18. When an 11-year-old tells you, 'I know why my mom did it, but two parents are still better than one,' I couldn't vote to take away another one."

Covering Jodi

Arias holding out hope jury will spare her life

She says she felt 'betrayed' by guilty verdict

Michael Kiefer | The Arizona Republic

May 22, 2013

On the evening after Jodi Arias' fate went to the jury, she seemed to hold out hope her life would be spared.

In a joint jailhouse interview Tuesday with The Arizona Republic, 12 News and NBC's "Today" show, Arias said she doesn't know if the jury will come back with life or death.

"Whatever they come back with, I will have to deal with it," she said. "I have no other choice.

"I don't know about the ultimate decision, but my attorneys think it will be quick."

So quick that she had already had her belongings moved out of her cell at the Estrella Jail late Tuesday. And a Maricopa County Sheriff's Office spokeswoman said that Arias will likely be transported to the Arizona State Prison Complex-Perryville immediately after the verdict, whether it is for life or for death.

After nearly five months, the circus at Maricopa County Superior Court came to an end.

Arias, 32, was convicted May 8 of first-degree murder for the brutal 2008 slaying of Travis Alexander.

"It felt like a huge sense of unreality," Arias said about hearing the guilty verdict. "I felt betrayed, actually, by the jury. I was hoping they would see things for what they are. I felt really awful for my family and what they were thinking."

Last week, the jury quickly found that the murder was committed in an especially cruel manner, opening Arias to a possible death sentence.

And then, when a mitigation witness failed to testify, claiming intimidation, and the judge denied a mistrial, Arias' attorneys pulled the plug on the phase of the trial during which mitigating evidence is presented to try to convince the jury to spare the defendant's life.

The lawyers apparently want to take their chances in appeals court.

Arias addressed the jurors Tuesday morning.

She told them that after the conviction, she wanted to die, but had since changed her mind.

"I can't, in good conscience, ask you to sentence me to death because of them," she said, pointing to her family.

She told them that she wanted to teach Spanish and literacy skills from behind bars, market T-shirts to benefit abuse survivors and to donate her hair to charities for cancer survivors.

She showed her artwork to the jury.

Then her attorney asked jurors to sentence her to life in prison. The prosecutor asked them to sentence her to death.

The jury left the courtroom and stayed until about 4 p.m. Jurors are supposed to be back today to resume deliberation, and the feeling around the courthouse is that they will not take long to reach a decision.

Arias, who has always liked media attention, agreed to meet with several media outlets after court, in what may turn out to be the last night she can do so before being whisked away to prison.

Ironically, she has not seen the media storm her case has created. Some of the new women on the jail pod tell her about it, but she has no access to the Internet, no TV other than the Weather Channel, and her only news comes from The Republic.

She would have no way of knowing that just a simple tweet that The Republic was going to conduct an interview with her would unleash literally hundreds of angry responses of why anyone would talk to the woman who some characterize as the most hated person in America.

The public claims she never apologized for the murder; for shooting Alexander, her lover, in the head; for stabbing him nearly 30 times, for slitting his throat and then leaving him dead in the shower of his home.

"I certainly did," Arias said, on the witness stand and in her Tuesday allocution. "I don't know if I could ever adequately apologize. It's just a word. I caused a really huge loss and it caused a lot of pain and I have to live with that. I wish I could take all of that pain."

When she turned 30, she said, she thought about how Alexander was 30 when she killed him. During court Tuesday, prosecutor Juan Martinez reminded the jury of that.

"He's still, today, 30 years old, because of her," Martinez said.

When asked Tuesday night if she ever dreamed of Alexander, she said that shortly after her arrest, while she was still in jail in California, she dreamed that he was there with her, lounging in "the tank." When she asked him what he was doing there, he said, "We all have to do time for what we've done."

She doesn't understand why she didn't remove herself from her relationship with Alexander.

"I want to reach back in time and shake myself," she said. "I feel like there was this hook and I couldn't unhook myself."

She was mortified when the nude photos of her were displayed in court, maybe even more mortified when the prosecution played the videotapes of her police interrogations.

She can't imagine ever being in another relationship.

"I feel gross," she said. "I feel dirty. I don't want a relationship with anyone. I want therapy."

And if she were dead?

"I've completely effed up my life and I think I would be doing everyone a favor," she said.

But if the jury comes back with a death penalty, she said, "I would feel shell-shocked again."

Then she would pursue appeals, she said.

And she had an answer for those who think that the only justice for Travis Alexander would be for Jodi Arias to be put to death.

"That's not justice," she said. "That's revenge."


May 9, 2013

On June 9, 2008, a young woman named Mimi Hall became concerned that she hadn't heard from her friend, Travis Alexander. Alexander, 30, was wooing Hall, though she claimed she was not that interested in him. Nonetheless, they were supposed to go together to Cancun, Mexico, on a trip that Alexander had won through his work at a company that sold prepaid legal insurance.

Hall went to Alexander's Mesa home and rang the bell. Inside, Alexander's small dog barked wildly, but no one came to the door. She called friends and returned to the house with them, and one of them obtained the security code for Alexander's garage door. His car and bicycle were both there.

When they opened the door into the laundry room, they were hit with the smell of death, though none of them recognized it. They crept through the house and up the stairs toward the bedrooms and heard music coming from one of them. When they knocked at the door, one of Alexander's roommates opened it. He had a key to Alexander's locked bedroom.

The room inside was a horror: A semicircle of blood had soaked the carpet where the bedroom opened onto a hall toward the master bathroom. The floor and walls and sink were spattered with blood, and Alexander lay curled on the floor of the shower stall, his throat slit, a bullet in his head, and with nearly 30 stab wounds in his torso, his back, his hands and feet. He had been dead for five days already, and his body was streaked with the blacks and blues and greens of decomposition.

The friends told police that Alexander had a stalker named Jodi Arias.

Then police found Alexander's camera in the washing machine of the townhouse and were able to recover photographs: Alexander and Arias in various sexual poses.

Arias was arrested a month later at her grandparents' home in Northern California and charged with first-degree murder.

Over four months of trial in Maricopa County Superior Court in downtown Phoenix, her case dominated headlines and TV tabloids across the country, a tale of sex and violence viewed more as reality TV than reality.

The general public took it as a morality play, canonizing Alexander, and villainizing Arias as an evil seductress.

But the reality was more sordid: a mutually obsessive and jealous sexual relationship that played out in text messages and e-mails. The whole world viewed the grisly crime-scene photographs and the pornographic snapshots the lovers took of each other in the hours before the murder. And they listened to them talk dirty in a recorded telephone conversation that crescendoed with real or imagined orgasms.

Yet despite the battling, those same text messages, the journals, even the phone-sex recording, showed a deep affection between the lovers, which makes the sudden explosion on June 4, 2008, the day Alexander was killed, even more unfathomable.

Arias and Alexander had officially been girlfriend and boyfriend, first meeting at a conference in 2006, and Alexander brought Arias into the Church of Jesus Christ of Latter-day Saints, baptizing her himself; that same day, he took her to bed and sodomized her for the first time, Arias said. They'd had angry splits and sexy reconciliations. They would tell people they had split, but would still meet for late-night trysts and take vacations together.

Nonetheless, Alexander told his friends that Arias was a stalker. But then again, he also led his friends and family to believe that he was still a virgin, though, over the course of the trial, it was revealed that he was juggling more than one girlfriend. In fact, in the days after his body was found, a woman called police to say she thought that her husband might have killed Alexander out of jealousy; that woman has since committed suicide, and her husband was sent to prison on unrelated matters.

About a month after the murder, Mesa police contacted Arias at her grandparents' home in Yreka, Calif., near the Oregon border.

At first she denied involvement and expressed shock.

Then, when police confronted her with the naked photos Alexander had taken of her the day he was killed, she made up a story about armed intruders who burst in on them, killed Alexander and threatened to kill her, too. She even repeated that for TV interviews, and boasted, "No jury will convict me: Mark my words."

Police also knew that shortly before the murder, someone stole a .25-caliber handgun from the home of Arias' grandparents. Alexander was shot with a .25 caliber bullet. The gun has never been found.

And then, Arias confessed.

Prosecutor pulls a surprise

Over the next 4 1/2 years, Arias went through several lawyers and for a brief period last year tried to represent herself. Two lawyers assigned to the case resigned, and her final team became two former public defenders on contract with the county: Kirk Nurmi and Jennifer Willmott. During the pretrial period, they battled with Deputy County Attorney Juan Martinez over what evidence came in and what stayed out. As late as November, they were still fighting over access to Alexander's computer.

Also during that time, the prosecution's story was that Arias first shot Alexander in the head, then stabbed him with a knife as he fought her off. Lastly, she slit his throat.

But in December, just days before they were to pick a jury, Martinez suddenly announced that Arias had in fact stabbed Alexander first, then slit his throat, and as he lay on the floor, dead or dying, shot him in the head to finish him off. Never mind that the probable cause to pursue the death penalty was based on the original theory.

"She killed him three times over," Martinez said. One of the stab wounds would have been fatal, the medical examiner opined, and possibly the gunshot wound as well. The slit throat would bring immediate unconsciousness and death within minutes, the examiner said.

Opening statements were Jan 2.

There were photos of the blood and gore, the spatter and stains, Alexander's lips curled away from his teeth in a macabre death grin, his head cut halfway off.

There, too, were the photographs of Arias posing nude on a bed with her newly dyed brown hair in pigtails; some of the photos of her private parts were as graphic as medical textbooks. In other photos, Alexander lounged naked on his bed.

The last three photos: a close-up of Alexander's face as he sat in the shower (that photo would later be blown up to show a vague silhouette of Arias holding a camera, but no gun or knife); a blurred photo of the ceiling as if the camera fired as it was dropped; and an accidental photograph showing Alexander bleeding on the floor of the hallway, his head and one arm slightly lifted, and Arias' leg and stockinged foot next to his head.

The three photographs had been taken within a span of one minute and 45 seconds.

Martinez rested his case in less than three weeks.

Arias took the stand during the first week of February — and stayed there until the middle of March, giving an unprecedented 18 days of testimony that raised the bar on the term "too much information."

She claimed that on several occasions, Alexander had struck her. She detailed their sex life, describing the role play and sodomy she claimed that she and Alexander would engage in, the sex toys they would use, the lubricants, the sex acts they would perform with candy. Some of those preferences were corroborated when the defense played the torrid phone-sex recording.

In February, the defense dropped a bomb when Arias claimed she had caught Alexander masturbating to a picture of a young boy. Martinez fought hard to discredit the allegation.

Arias also claimed she had intended to drive directly from California to Salt Lake City in June 2008 to see a man with whom she was considering a relationship, but that Alexander had persuaded her to detour to Mesa instead.

Martinez at one point prefaced a question with "When you drove down from Yreka to kill Mr. Alexander ..." Arias refused to answer it.

And when it came time to talk about the murder, Arias said that Alexander had tied her to the bed for sex, had bent her over the desk in anger and sodomized her. And then, while she was photographing him in the shower, she claimed Alexander became enraged when she dropped his camera and slammed her to the bathroom floor. She got out from under him, she said, ran to his walk-in closet to grab the gun she said he kept there. Then, when he charged at her, she said, the gun went off accidentally.

"I didn't mean to shoot," Arias said. "It went off."

The next thing she claimed to remember was driving near Hoover Dam with blood on her hands and throwing the gun into the desert before continuing to Salt Lake City where she pretended to act normal.

When it was Martinez's turn to cross-examine Arias, the two sparred for days, exchanging barbs. Martinez discounted everything in her story, including her inability to remember.

"Give me the factors," he shouted during one heated exchange. "I want to know about a specific circumstance. What factors influence you when you're having a memory problem?"

"Um, usually, when men like you are screaming at me or grilling me or someone like Travis is doing the same," Arias shot back.

But eventually, she broke down under Martinez's attacks.

While walking her through the crime-scene photos, Martinez asked her to put her finger on a spot where Alexander's body lay bloodied. She sobbed out loud.

"Ma'am, were you crying when you were shooting him?" he asked.

"I don't remember," Arias said, still crying.

"Were you crying when you were stabbing him?"

"I don't remember."

"How about when you cut his throat?"

"I don't know."

Jurors get their chance

The jury had more than 200 questions for Arias, many of which mirrored the prosecution's disbelief.

Willmott then called a psychologist to the stand to aver that Arias had post-traumatic stress disorder and that it was common for people in fight-or-flight situations to experience amnesia. She called an expert on domestic abuse to testify that Arias had been abused by Alexander. Martinez ridiculed them on the stand.

And so did the general public.

Because the trial played out in 24-hour coverage on cable TV, because it was streamed live and followed on social media, because it had to do with a handsome young couple, and because it concerned sex and lies and videotape and a dozen other media that hadn't yet been invented when that cliché was coined, it exploded onto the world.

People thousands of miles away became obsessed, siding overwhelmingly against Jodi Arias.

People traveled from across the country to stand in line early in the morning, hoping for one of a few dozen available seats in the courtroom.

They called up court officials, law enforcement and media reporters with theories and revelations they gleaned from the Internet or made up on their own.

They published the phone numbers and e-mail addresses of Arias' family.

They also went after the witnesses and the defense attorneys, phoning and e-mailing threats against their careers and even their lives.

Alyce LaViolette, an expert on domestic abuse, testified on Arias' behalf. Afterward, trial watchers posted her personal information on the Internet and through Twitter and Facebook.

More than a thousand angry people posted negative reviews of her best-selling books on and called organizations with which she had scheduled speaking engagements, urging that she be fired.

Willmott received death threats, including one in which a caller said, "You don't have to return my call, but I'm just telling you: If Jodi, if you get her off of the death penalty, we will find you, we know where you're at, we will kill you. I told Alyce the same thing, and we're tired, and we're sick and tired of you defending this person, and we will get you."

Juan Martinez emerged with an international following, even signing autographs for admirers who came from all over the country to watch him in action.

Among the Facebook posts are Photoshopped pictures of Martinez with angel wings or posed so that it looks as if he is standing next to Travis Alexander with an arm around his shoulder.

On the other hand, Nurmi's face was Photoshopped onto a whale, onto the body of a shirtless executioner standing next to Arias, who is laid out on an execution table, and even onto a crime-scene photo of Alexander lying dead in the shower.

Martinez's autograph-signing was just one of the reasons Nurmi cited in motions for mistrial. He also cited the change in the facts of the case, and an alleged attempt by a prosecution witness to contact a defense witness, and difficulties in getting Martinez to turn over evidence.

Three jurors were dismissed in the last weeks of the trial, one for talking out of turn, one for a lingering illness, and one for being charged with DUI and then telling police he was on the jury. It was hard not to imagine that each dismissal was strategic for one side or the other.

And Judge Sherry Stephens responded by holding countless hearings in chambers and sidebars at the bench, drowned out by a white-noise machine and sealed in the record to hide what was going on.

It seemed it would never end.

The last of the witnesses took the stand on May 1, in a hearing that began at 9 in the morning and didn't finish until 8:30 that evening, and the attorneys made their final closing arguments on May 3, four months and a day after the trial began.

On Wednesday, after fewer than three days of deliberation, the 12 jurors convicted Arias of first-degree murder.

The extreme life and dramatic death of Michael Marin

Michael Kiefer | The Arizona Republic

August 19, 2012

Michael Marin was on top of the world in May 2009.

He was standing on top of Mount Everest, a place only an elite group of climbers have ever reached.

Two and a half months later, he was in jail in Phoenix. His Biltmore Estates mansion had been gutted by fire, and Marin faced an arson charge that could lead to decades in prison.

The two extremes framed Marin's life.

He had traveled the world and lived in foreign countries, flown planes, traded in complex investments, charmed beautiful women, bought and created art. He could sing and play the piano like a professional musician. He doted on his children and had close friends all over the world.

In short, Marin seemed to have everything and to be capable of anything.

But there was a dark spot inside of him, an insecurity that few people saw. The drive and ego that pushed him to be an overachiever could also lead him into petty and destructive fights and a fixation on perceived slights.

He mounted a vigorous legal defense against a traffic citation. He spent two years fighting a paternity claim. In 2009, a few months after summiting Everest and after authorities smashed his plan to raffle off the house that had him deeply in debt, he took another defiant step: A jury believed he lit a fire that tore through the home on Biltmore Estates Drive.

But even that would not be his most dramatic act.

The blaze, which he denied setting, drew media attention not so much for its ritzy location but for Marin's unlikely escape. He told investigators he had awakened to find the house in flames, donned scuba gear stored in a bedroom closet, and escaped by breathing compressed air before making his way down a rope ladder.

Maybe he was telling the truth — or maybe he was just trying to stage a dramatic scene. He had a flair for appearing understated when he was being grandiose.

But instead, he became a comic figure — that guy who climbed out the window wearing scuba gear — and that is who he was to the jury that found him guilty of arson on June 28. He was to be taken into custody immediately after the hearing.

The verdict led to the final act of his life. As a live TV camera focused on his face, he slipped something into his mouth — an autopsy would reveal it was cyanide. Fifteen minutes later, he lay dead on the courtroom floor.

What Marin left behind helps define the highs and lows of a storybook life:

A stack of writings, unpublished or self-published, record an inner dialogue and an outsized biography.

A family of four grown children refuses to speak about him except to say that he was innocent. His friends and lovers say the same.

And if they were shocked by his suicide, they were not all surprised.

"He killed himself because he's Michael Marin," said his former attorney Richard Gierloff. "It's because he didn't set that fire. And if people misunderstand him so badly they thought he did this crime, then he's through with people."

"From Everest to jail is just him," said Marin's ex-wife, Tammy Gunderson. "He's not one who did things anywhere in the middle."

An adventurer's life

Michael Marin was born in December 1958 and was raised in Oak Harbor, Wash., a Navy town on Whidbey Island, north of Seattle. As a faithful member of the Mormon Church, he attended Brigham Young University and served a mission.

It took him to Japan, where he learned Japanese. After college, he attended Yale Law School, and after being admitted to the New York State Bar in 1987, instead of going into private practice or working in government, he went to work in the legal department of banks, which sent him back to Japan. From there he put his mathematical mind to work as an investment banker, and made a fortune trading in complex investments for Merrill Lynch, Salomon Brothers and Lehman Brothers.

He traveled extensively in Asia. A book he wrote about investment banking in Asia purports hair-raising adventures in Papua New Guinea, firefights in Cambodia, a trumped-up drug bust and torture by Malaysian police officers.

His kids were raised in Asia and in Chicago; his wife, Tammy, left him in 1992, after 12 years of marriage, and she moved to the Phoenix area. Then, in the late 1990s, after a decade of working the Asian market for Wall Street banks, Marin returned to the United States, eventually landing in Gilbert.

"He was very charming," said Christine Marie Katas, who dated Marin in 1999 and 2000 and entered into a business agreement with him.

"Michael definitely lived his life to the fullest," said Kristin Martin, who dated Marin in 2004. As for his personality, she said, "There's a level of arrogance when you're that smart."

He created artwork that showed his love of women, acrylic busts molded on women's bodies then draped in color or dressed in shells and coins.

He collected art as well; his mansion had paintings by LeRoy Nieman on the wall, and he bragged that his Picasso etchings were worth millions.

He had a walk-on role in Arizona Opera's production of "Aida" this spring.

Marin could be heroic: After his death, a woman wrote on his Facebook wall, recounting a visit to Yosemite's El Capitan, a destination for big-wall rock climbers: "I can still hear your calming voice talking me down the final rappel when I was injured, and I will never forget how you carried me up the steep path back to the road that day."

He climbed the highest peaks on six continents: McKinley in Alaska, Aconcagua in South America, Elbrus in Europe, Kilimanjaro in Africa, Kosciusko in Australia, Everest in Asia. When he went hiking he sometimes wore a jacket with the names of the summits on it and a check mark next to the ones he had climbed. All that remained unchecked was Vinson Massif in Antarctica, but he intended to take that peak next year.

There's a clip from a documentary film that shows Marin at his best before his life fell apart.

He's being interviewed at the Burning Man Festival in Nevada, an event he attended every year, dressed as a commercial pilot — which he wasn't — to give free rides in his Cessna to fellow festivalgoers.

Never mind what he's saying: His eyes are alive and flashing beneath the brim of his captain's cap, his smile gleams, his voice flows musically.

He waxed purple about mountaineering, once writing:

"I have dared to climb the highest mountains in the world, appalling pyramids of unforgiving snow, ice, and living rock, and set my feet on windswept heights known only to the courageous and the crazy, where views far too beautiful for mere words to express dazzle the senses and touch in the soul a paradise of peace and joy where the horrors of the half-lived life are unfamiliar. I have dared to profane with my presence high sacred places where the thin veil between here and now and the mystery of the great beyond is but a frozen whisper in a howling wind. Feeling excruciating fatigue, gasping for breath in the rarefied air, mindful of lost friends, and worried loved ones, I have experienced things you may never know, even in your wildest dreams, and while pushing myself beyond the boundaries of human endurance, facing mortal danger with every step, I have opened my eyes and beheld the face of God. I am awake."

An unreliable narrator

But there were other facets of Michael Marin's personality, and they led to his unraveling.

And for all his adventure and showmanship, Marin was an unreliable narrator of his own life.

He claimed his Picasso etchings were worth millions of dollars. But a girlfriend who was with Marin when he bought them in Las Vegas said he was sincerely moved by their beauty, but had paid only a few hundred thousand dollars for them.

He had photographs of himself in exotic destinations around the world, and stories of his trips that he had long told to friends, so his travels were mostly real.

But his self-published book "Fluctuations," which told of his adventures and close calls in Southeast Asia, also carried this note on the copyright page: "This book is a complicated hybrid of fact and fiction. Virtually all of the stories and incidents are true, but in many instances, names, places, and other details have been changed or fictionalized to protect the privacy, anonymity, and safety of the individuals to whom they refer."

He wrote "Fluctuations" after he left Asia and investment banking. Marin described the book's tone as humorous and ironic. It also is full of animus, and at times seems a rant.

In the book, he issues warnings to his former colleagues, boasting that he has firearms training and that if anyone tries to sue, he could unleash information that would reveal their mistresses or open them to criminal investigation.

In its first pages, he admits he will never work in banking again, given the bridges he burns over the rest of the book.

One former female friend said he could be a bully.

He could not let go of his defeats, however trivial, and instead lashed out self-destructively.

In 2000, Marin got a traffic citation in Gilbert for running his motorcycle into a car. He went over the handlebars and ended up in the hospital, and was issued a citation for failure to control a vehicle to avoid collision.

One might think that the rich man and world adventurer would pay the fine and go on with life. But Marin appealed, acting as his own attorney, and lost the case. He wrote a self-aggrandizing and condescending brief to the court, detailing the charity work he had done right before the accident, and his driving expertise for having attended a world-famous driving school.

He got a new trial — but only because the audio recording of his first trial was garbled. He lost the second trial as well, but he didn't let it go. In 2002, he self-published another book, this time about "moron drivers."

And one might think a man who doted on family would own up to fathering a child.

Marin lived with a woman for three months in 2003. In 2004, she filed a paternity suit, seeking support for her newborn daughter. Marin spent two years fighting her until a Maricopa County Superior Court judge ruled that he was indeed the child's father and needed to pay child support.

Finally he softened: He accepted the child as his own. He introduced her to his four children by his ex-wife, Tammy. He called every Sunday night at 7p.m.

Tragically, the child's mother died of natural causes just six days before Marin's death.

An unbelievable escape

How Marin ended up with a multimillion-dollar mansion in the Biltmore Estates is as fuzzy as everything else in his life story.

He bought the house in September 2008, after a friend and business partner lost it to foreclosure, and he paid for it through a complex series of transactions. It came with a monthly mortgage payment of $17,250 and an imminent $2.3million balloon payment.

The next spring, Marin devised a lottery to sell the house. He would sell 176,000 lottery tickets at $25 each. Then, in the end, the mortgage would be paid off, Marin would make a profit, and the rest would go to a worthy charity he had chosen, a crisis center for children.

Later, he would explain his plan to New Times reporter Paul Rubin: "I thought, 'Here's my chance. I'm gonna sell this house anyway and pay a real-estate agent $200,000 or $300,000. Why not sell it a little bit at a time with the raffle?' I wasn't going to make any money on the deal, just get out of it what I put into it and move along. If it went well, the center would have gotten maybe $500,000, so it sounded like a great thing, no downside."

In May 2009, Marin climbed Mount Everest. He thought publicity from the climb would aid in the sale of lottery tickets. He did live interviews with a local TV station while he was atop Everest.

But then state authorities determined that the lottery was illegal and shut it down.

The lottery drawing was supposed to be on July 4, 2009.

On July 5, Marin called 911 to report that his house was on fire and that he was going to escape using a rope ladder. He claimed he was asleep inside the house when he heard the smoke alarm. As he struggled through the thick smoke, he remembered that he had a scuba tank in his bedroom closet. He said he put on the tank and mask, climbed out a window and descended a rope ladder to escape.

Media responded to his incredible escape. That evening, he did interviews from his hospital bed.

Arson investigators — and the insurance company that held Marin's home-insurance policy — took a closer look. Marin's prized paintings were not in the house when it burned, nor was his pet macaw. They found boxes full of old telephone books stacked end to end, as if to fuel the fire. And they claimed the fire had been intentionally started in four separate spots in the home.

Prosecutors charged Marin with arson of an occupied structure, a crime with penalties as severe as second-degree murder — even though the "occupant" was Marin himself. He was arrested on Aug. 19, 2009, and spent 10 days in jail before being released on bond.

His former attorney, Richard Gierloff, claimed that the fire had started in an electrical box and that the boxes of phone books were in such a position because Marin was only moving in, and the newsprint in the books was to be used in Marin's decoupage artwork. Marin worked with resins, which could explain the open containers of acetone that the arson investigators suggested were accelerants.

But Marin was out of money. Prosecutors later showed that his bank account had dwindled from about $900,000 in 2008 to $42,700 just before the fire. His 401(k) had only $50 in it. And he was facing new legal expenses.

In September 2009, he sent an e-mail to his friends, asking if they could help him financially.

"Alternatively, perhaps you (or someone you know) might like to take advantage of my situation and purchase one or more of my remaining assets from me at rock-bottom, fire sale prices (if you will pardon the unfortunate metaphor)," he wrote. "How would you (...) like to buy a Picasso on the cheap? Or an airplane?"

"I've exhausted all of my other options. I am literally at the end of my rope."

He needed somewhere to live while awaiting trial, so Jana Bru, Marin's best friend of 12 years, former girlfriend and business partner, took him into her Chandler home.

By April 2011, he had to let Gierloff go and request a court-appointed attorney. At the end of the required financial statement, he penned a note explaining that he no longer had any assets.

A month later, in May 2011, he bought a canister of cyanide from a California mail-order chemical supplier for $93.77 including shipping.

That same month, two of Marin's friends were struck by a post on Facebook in which he asked something like, "What would you do if you only had a short time to live?"

Robert Morgan Fisher, a childhood friend of Marin's who had recently reconnected with him on Facebook, was alarmed by the post.

Recently when he went back to the site to look for it, he found it had been deleted. Fisher's own response was still there, asking if Marin was in bad health or if something else was going on.

Former girlfriend Kristin Martin saw it, too, and in hindsight she related it to something Marin had once said about his detention in Malaysia, as if he was saying he would never go to prison.

"He told me he would never be in a situation like that again," Martin said.

The inner man emerges

In December 2011, Marin contacted Fisher on Facebook to tell him he had written a play about his 10 days in jail after his arrest. Fisher is a writer and a singer-songwriter, and Marin wanted his opinion as to whether the play was any good.

The play's main character is named Michael Marin, and he is in jail after being falsely accused of burning down his house. The character Marin has climbed Mount Everest.

"I reached the summit a little over three months ago," he says. "It's been downhill ever since."

And one beat later: "I've wanted to say that ever since I got arrested."

The onstage Marin has the hallmarks of the real character's life of extremes. He's an intellectual. He's a karate expert — his cellmates pronounce him to be "hard-core, bad-ass." The script compares his character to the man from the television beer commercials: The Most Interesting Man in the World.

He talks about his time in Asia, his mountain conquests, his brushes with death, his artwork. But then the arrogant promo turns into heartfelt confessional. The tough-guy voice softens, and the inner Michael Marin emerges.

"I really don't know what things are like for most people, but for most of my life I've been terribly insecure," he says.

"I'd like to think that for all of my strengths and weaknesses, good points and bad points, successes and failures, I am fundamentally a good person, worthy of being loved and accepted just the way I am, simply because I'm a human being, but it seems like the only forms of love and acceptance I've ever experienced are highly conditional."

At the end of the play, the Marin character is beaten unconscious by sheriff's detention officers and, one presumes, left to die.

Outwardly upbeat

On May 20, Michael Marin made this post to Facebook:

"Three years ago today, I was on top of the world. Tomorrow my trial begins. ... One ceases to recognize the significance of mountain peaks if they are not viewed occasionally from the deepest valleys."

The opening arguments in Marin's arson trial were on the morning of May 21.

Deputy County Attorney Chris Rapp said, "Michael Marin couldn't pay his mortgage, so he burned down his house."

Marin's defense attorney, Lindsay Abramson, countered, "The state wants you to make a leap, that because he is eccentric, because he saved his own life wearing a scuba suit, that he committed arson."

Abramson pointed out that many of the prosecution's experts were paid for by the insurance company that covered the house.

At trial, forensic accountants detailed Marin's finances and arson investigators went through their findings. Marin did not testify.

To his friends, Marin seemed optimistic and controlled despite the pressure. He made Facebook posts with quotations by the Rev. Martin Luther King Jr. and Will Smith and others: "In the end we will remember not the words of our enemies but the silence of our friends." And "If you're absent during my struggle, don't expect to be present during my success."

He was outwardly upbeat.

Susie Spicer, Marin's last girlfriend, was with him during the trial. The two had met sometime in 2011, Spicer said, "synchronistically, on the top of Camelback Mountain."

"In the last weeks, Michael was very much at peace and very focused on actively working toward feeling happy despite his life circumstances," Spicer said in an e-mail. "He was very spiritual. He meditated daily and spent weekends mountain climbing and canyoneering."

Marin, however, fought with his court-appointed attorneys. He especially felt they didn't understand relevant fire science that would exonerate him.

In a note that his family and closest friends received after his death, ostensibly to relay his wishes for his burial, he said, "I wrote lengthy memoranda to help my lawyers, but it was like I was playing piano for ducks. They just didn't get it."

After his death, Marin's son Paul posted a message to one of Marin's Facebook friends, saying his father "felt the investigation was biased and flawed, that the prosecution was overzealous and unfair, and that his defense was grossly inadequate and the sentencing overly harsh. He prepared a document for us to release concerning his vision of how his defense should have gone. We (his kids) are unsure as to whether releasing this would just add fuel to the undesired raging media attention."

A man in despair

The verdict was reached on the morning of June 28. It was to be read at 1 p.m.

Marin messaged Spicer to pick him up, and they went to court in her car. He had already e-mailed someone in his family to let them know where his car could be found in the event things went bad.

The hearing began late. Marin sat at the defense table; Spicer sat behind him in the gallery. The jury entered; the clerk read the verdict.

Marin closed his eyes in despair when he heard the word "guilty" and that the jurors found it to be a dangerous crime, which meant he would not be eligible for parole and would be taken immediately into custody to await sentencing.

He rubbed his hands up his face, with one hand cupped, and as he brought them back down, it appeared as if he opened his mouth and swallowed something.

The jury left the courtroom, and Judge Bruce Cohen was talking to the attorneys about how they would argue the trial's next phase, when the jury would decide if Marin was eligible for a harsher-than-average prison sentence. Cohen would make the final decision: the usual, or "presumptive," sentence was 10½ years in prison, but Cohen could have given Marin up to 21 years.

About seven minutes had passed since the clerk read the verdict. Marin looked to Spicer and nodded. He mouthed the words "I love you," and she said the same back to him.

He reached out as his attorneys' paralegal offered him a box of tissues, then put his head down. Spicer heard him say, "I can't do this." He began shaking.

Suddenly Marin gasped like a man who had been holding his breath underwater and had finally breached the surface. He started to collapse forward, making a loud snoring noise as if his trachea were a balloon releasing air.

Abramson, his attorney, caught him as he buckled toward the floor. Nearly everyone in the courtroom froze, but Spicer rushed forward and she and Abramson laid Marin on his back and tore off his tie and opened his shirt collar.

The judge stayed on the bench, watching in shock. The prosecutor stared blankly. Marin's other attorney paced anxiously. Two dozen spectators sat numbly in the gallery, and a few laughed nervously.

Sheriff's deputies and even the fire captain who had investigated the arson attempted to administer first aid. When clear liquid began flowing from Marin's mouth, they turned him on his side to keep him from choking. Spicer laid Marin's cheek on her thigh and stroked his hair.

Paramedics arrived and started administering chest pressure. Minutes later, they wheeled Marin out of the courtroom on a stretcher. His cheeks were blue, and he was already dead.



From Speaking English


When I got back to the apartment, Sofi was sitting in the living room with the lights off, and I could tell she had been crying. I asked what was wrong.

                “It’s my brother,” she answered.


                Junior was still in the Army and had been stationed in the Philippines, and I had no idea what he did there, because like a lot of career military guys, he didn’t ever really talk about it. I shuddered to think that something had happened to him, especially knowing how Sofi and her parents doted on him.


I let the word hang on the air for a moment, unsure exactly what to ask, because as far as I knew, Sofi only had one brother. I was mistaken.

                “My other brother, Guadalupe.”

                I still didn’t have words to say.

                “The one who ran away when we were kids. We were all so ashamed because we thought that he hated us so much that he left and never came back. So we never said much about him, even to ourselves. He’s been gone for more than ten years.”

                She took a deep breath. “Well, I found him.”

                “Where is he?” I asked.

                “He’s dead.” She sobbed as the words came out. But I stayed in the dark.

                “OK, Sofi, you’ve got to let me know what this is about. I’d like to help, but I’m so confused, I don’t know what to say.”

                “Just let me cry for a few more minutes, Ok Miggy?”

                I sat next to her and cradled her against my shoulder. She shuddered inconsolably as she wept into the sleeve of my sweatshirt. This was a deep secret, and it seemed as if these were tears that came from deep inside, as if they had waited to well up and be cried. I had known Sofi more than ten years and had never heard a thing about it.

                It took nearly an hour before she could speak, and the voice came from somewhere so low and far away that I almost didn’t recognize it.

                “Lupe was my baby brother. He was three years younger than me and he was my parents’ favorite. But I could live with that because he was a special boy. He wasn’t real tall and he wasn’t real good looking—none of us are, you know—but he was good at sports, especially baseball, and my father always thought he played well enough to get a college scholarship. We thought it would be him instead of me who would be the first person in the family to go to college. I think I probably only went myself because somebody had to pick up the responsibility.

                “He was good at school, too, and when he helped out at the restaurant, he would always charm the customers. He knew how to shake hands with the men and flirt with the ladies, especially the old ladies—God, they loved him. You know, he knew how to make a customer feel good even if the food didn’t come out just right.”

                What could I say? “He sounds wonderful,” is what came out, and as a heartless cynic, I wondered how much he had been aged and perfected with the passage of time. But Sofi was talking about a brother, and knowing how she felt about her family—her sister Tina, Junior, her parents, they could do no wrong. And not just them: She would slug anyone who said anything bad about me--I took her at her word.

                “So what happened?”

                “He fell in love.”

                I didn’t know where this was going and let her rest a few seconds until she could explain.

                “He had a girlfriend, and it worried my father. Oh, I don’t know if she was a bad girl or anything. I don’t think we ever even knew her last name, and if we did, I’ve forgotten it, and I couldn’t tell you where she is today.

                “But Lupe started cutting baseball practice to spend the afternoons with her, and no one would have known except that one day, the girl’s mother called my mother to say that Lupe and her daughter were having sex. She had found a receipt or an appointment card or something from Planned Parenthood, and when she asked the girl about it, she admitted that she had gone to get a pregnancy test because she was worried.”

“Was she pregnant?” I asked.

                “No. But Lupe was just 15, and my parents, as you know, are so traditional and so conservative, my father, especially. But forget for a moment how Catholic my parents are. It wasn’t that my father didn’t want Lupe to date, it was more like he didn’t want Lupe to be one of those teen parents in the neighborhood, kids who had to drop out of school to support a baby and a marriage that was doomed to fall apart by the time they were 20. He didn’t want Lupe to be one of those cholos bragging about his “baby mamas” and the children he had fathered here and there. I can’t blame him. He had other plans for Lupe.

                “But Lupe was in love, and when my father said he couldn’t ever see the girl again, he ran away. He didn’t go far the first time, just to my Uncle Tony’s house and my father went to pick him up the same night. And then the next day he ran to the girl’s house, but her mother wouldn’t let him stay there so he slept in the park. We found him there at about two in the morning.

                “He and my father fought about it for a few days, and then Lupe seemed to come to his senses, and he settled down. But my father started to leave the restaurant in the afternoon to go watch Lupe at ball practice, mostly to see if he actually went. And he did.

                “But then about a week later, when my mom went to his bedroom to wake him up in the morning, she found his bed stuffed with clothes and pillows to make it look like he was sleeping. But he was gone.

                “We looked everywhere: we went to the girl’s house and she said she hadn’t seen him. We called all the relatives, even in Mexico. And of course, we filed reports with the police, though they didn’t seem all that interested in looking for him when they heard the back story about him running away and having a forbidden girlfriend and all that. The girl never heard from him either, and that worried us the most.

                “We called other states, checked into accidents, asked if there were unidentified dead. He was gone. Just gone.” She shuddered a moment. “Gone. How can someone you saw every day of his life just suddenly be gone? Disappeared?”

                She coughed. “I always held on to this silly idea that one day he’d come home, all apologetic like the Prodigal Son in the Bible. And like in the Bible, I would sure forgive him. I thought maybe he’d have a kid of his own that he’d want us to see and know. And then he’d remember that we weren’t all that bad, and that maybe he was a little bit to blame, too, that he’d been a dumb kid with a girlfriend and an early taste of forbidden fruit. But he was dead the whole damn time.”

                Now she sobbed hard and had to get up to go to the bathroom to throw up. When she came back, she refused to sit on the couch, and instead paced the room with a tissue in one hand and the other clutching her shirt tail.

                “So yesterday, the ambulance brings this kid into the ER who was found nearly dead with his head caved in, in the basement of some abandoned building on the South Side. Kid couldn’t have been more than 13. But he had no identification, and the cops figured he was a homeless kid who had been living there. We checked his vitals, hooked him up to an IV, started fluids and antibiotics, and then basically just watched him die before we could ever get him into surgery.

                “I wanted to call his family, but there was no way. It really hurt me, Miggy, and I wasn’t sure why. Well, yeah, I knew why: Here was someone’s kid, someone’s brother, someone’s grandson. Someone must miss him somewhere. And I asked the cop who came with him what was going to happen to him now. ‘We’ll take him to the morgue and wait a few weeks to see if anyone claims him. And if not, then we’ll give him to the county and they’ll find a cemetery that will give them space to bury him.’

                “So I’m already getting shivers, you know, like there’s something uncomfortably familiar about all of this. Like this dead kid is telling me something, and I asked the cop if there would be some sort of record kept, in case people came looking for him after he was already in the pine box and buried and disposed of. And when he told me that they had file cabinets full of those records and photos of the dead down at the station and that they just kept getting fuller all the time, I knew what I had to do. I told my boss I was going home sick, and I made the cop take me downtown to see the files. I almost really did feel sick, worried about what I was going to find, and my stomach fluttered all the way there in the cop’s car. I think maybe I scared him by how pale I looked.

                “The station was a hole, one of those old, old buildings, and the ‘John Doe’ files filled three little rooms, cabinet after cabinet spilling thin manilla folders. They were arranged by date, and out of the blue I remembered that Lupe disappeared two or three days before my 18th birthday, so I started there. In fact, there was one with that exact date, but when I read the label on the outside, it said the person was ‘Mexican/Indian, age 25-35.’ I thought that couldn’t be Lupe, because he was only 15. But I opened the file anyway, and found a horrible photograph of a face. The man’s face had been badly swollen, and it didn’t look like my brother. But there was something about the eyes that caught me, and begged me almost not to close the file.

                “I looked at ten or twelve more files without finding anything. But I kept thinking I needed to go back to the first file. It still wasn’t Lupe. I read the text: same weight, more or less, same height as I imagined Lupe might have been. The body, according to the fact sheet, had a birthmark on the lower left leg—and I seemed to remember that Lupe had a birthmark on one leg or the other. But I wasn’t sure, and besides, it wasn’t his face. I had to go home.

                “So I stopped by my parents’ house and started pulling out photo albums looking for pictures of Lupe. I got three or four of the last we ever took of him, and I started feeling more and more sick to my stomach. Then, I saw the baby book my mother had saved for Lupe, and inside there was a baby foot print taken at birth. And better yet, a card with a thumb print that they’d had made at some promotion at school—you know, one of those programs to identify kids while they were teaching about “stranger danger’ or some shit, I don’t know. I went back to the police station this morning.

                “I went to the same file, and this time, instead of looking at the face on the photo, which was clearly swollen from whatever killed the guy, I compared the hairline and the eyebrows of the file photo with the ones I brought from my parents’ house. Yeah, it was looking more and more like him. I showed the cop the thumb print, and it took them a couple of hours to confirm that it was Lupe. My baby brother, and I’m looking at his swollen dead face. I don’t know how I kept it together.

                “So in the meantime, I got the cop to pull the incident report connected to the body. And damn it all, he got killed the same damn day he left home, and it was only a few damn blocks from his girlfriend’s house, so he was probably just sneaking out to see her. Some drunk veered off the street and into a bus stop, and just ran Lupe down from behind. He never knew what hit him. And no one even saw him. The first witnesses who ran to the crash found the driver passed out at the wheel. They woke him up and he bolted, ran clean away. Then when the tow truck pulled the car off the sidewalk and out of the bus stop, they found Lupe underneath. Who knows if they could have saved him if they knew he was there?

                “He didn’t have any ID on him, and they obviously never matched him to the missing person’s report my parents filed—maybe because they thought Lupe was older than he really was. Or maybe because he was just one more West Side Beaner and who cares anyway? They buried him somewhere on the South Side—I got the directions to the grave. But even if they didn’t bother to track down who he was, they sure as hell went after the guy who killed him. They arrested him that same night, took him to trial, convicted him of vehicular homicide and sent him to prison for 15 years. Whoopee, we put one more Mexican in prison—who gives a good damn about the other Mexican he killed?”

                Sofi stopped and took a few deep breaths as if to fight back her anger, her fear, her grief. I’m sure she couldn’t separate one from the other herself.

                “So here I am, not knowing what to feel: I’m relieved that my baby brother didn’t actually hate us so much that he ran away forever. But then again, he’s dead, isn’t he? And that feels like shit. And you know what gets me the most? The fact that they prosecuted the Mexican who ran him over, get one in jail, you know? But they couldn’t care enough to connect this poor dead kid with the people who adored him. And we did adore him.”

                I didn’t know what to say, but she had collapsed onto the sofa again, and I knew I had to hold her, had to be strong for this woman who was always so strong for me.


You live with someone for ten years and you think you know them. But how much do you really know? I wondered.

                It took me years to notice, for example, that when she was really delighted, Sofi smiled not only with her top teeth, but with her bottom teeth as well, which made her look as if the delight were stretching her entire face. It was beautiful.

                What else did I learn? I learned to love the feel of her ample body after we made love, while I was still trembling, with one leg straddled over her lower body, and my head on her breasts as if they were pillows. Those breasts:  I’m sure that Mexican women did not invent breasts, but they may well have perfected them. And isn’t that just the sort of piggish thing that a man would think? God forbid I should ever say something like that out loud, because it would be met with a punch in the stomach and a cry of ¡Cochino!  “you pig.” Still and all, that would not necessarily mean that the utterance was completely unappreciated.

                The things I learned: Yeah, well I probably shouldn’t tell you this, but Sofi liked it when I bit her lower lip while we made love; of course, it took me years to figure that out, too, and I have no idea how I did because I never would have wanted anyone to do that to me and she was certainly never going to ask me, either. One day I just knew she wanted me to, and from her reaction, it was as if she had always been waiting for that moment, too.

                It was a paradox. She was always so conservative, but she would surprise me with sudden brazen acts. Once she made me pull over to the side of the road while we were driving at night, and she practically raped me in the front seat of the car. Of course, we never mentioned the event again to each other, because it was understood that certain moments should be experienced and not explained. Likewise, there was a time we were jogging in Lincoln Park at dusk, and she suddenly pulled me off the trail and into the trees and kissed me like she might never see me again. To my astonishment, we made love standing up against a tree that shielded us from the view of the jogging trail. I’ve never forgotten the moment, though we never talked about that again either.

                Certainly, since Sofi came to rescue me in Peru, we spoke Spanish more and more frequently—not all day long, mind you, just when the emotion demanded it. When things were funny or tense or maddening, we shared it in Spanish. Business and everyday conversations could be conducted in English, but anything that demanded conspiracy or camaraderie was in Spanish.

                So not surprisingly, we usually made love in Spanish, which was kind of ironic, because it seemed that the things we did in bed didn’t have words in Spanish, at least none that I ever learned even when I asked her. But the pillow talk was somehow more intimate and more sheltered in Spanish.

                As the joke would have it, she should have been becoming more guera “by injection,” if you take my meaning. But the reality was that I was becoming more and more Mexican by absorption, and it showed in my voice, so much so, that when I spoke to strangers in Spanish they could never figure out where I came from. They knew I didn’t come from where they were from, they knew I had an accent, but they didn’t know what kind.

                From my gabacho face they’d assume I was Spanish, and when I said no, they’d ask if I were Argentine. When they finally asked, “Where are you from?”  I would answer, “From here,” but they wouldn’t have it.

                “What about your parents? Your father? Your mother?”


                “Your grandparents?”

                Gueros, también.”

                And if they were smart-assed, they’d ask, “Y Sancho?”  because in Spanish, Sancho is the guy who’s screwing your wife or your girlfriend when you’re not around, sort of like the old American jokes about kids resembling the mailman or the milkman instead of their fathers.

                No, I would tell them, I’m puro guero, and when they told me I didn’t look like one, I’d say that was because everyone’s father or grandfather came from some other country and they just didn’t know what real gueros looked like anyway.

                But they’d keep speaking Spanish to me, even if they spoke fluent English. It was like being the member of a special club and speaking Spanish was the price of admission.

                The more I knew, the more the language fascinated me, especially the purely Mexican expressions. Mexicans from the northern Mexican states, for example, say “Mande” when they didn’t hear or understand what you just said. It’s not even a question. Instead of meaning “what?” it’s more like “give me an order,” and though I haven’t researched the origin of the word, I’ve always assumed it was a relic from colonial times, when the mestizos had to serve the Spaniards. Elsewhere, in other Spanish-speaking countries, you might say “¿Perdón?” whose meaning is obvious, or “¿Cómo?” which means “how?” There were other words for asking questions, not all of them well regarded:  for example, if a Mexican kid said the abrupt “¿Qué?” meaning “what?” to his mother, she just might smack him across the mouth for being so damn blunt and churlish. The problem with “mande” however, was that no other Spanish speakers used it, or even understood it. I remember once that when it popped automatically out of my mouth during a conversation with a Cuban, it derailed the conversation, and the Cuban switched right back to English, which he spoke badly.

                I was the Spanish teacher, remember, but I myself had an unwilling tutor. Speaking Spanish was one thing, but analyzing the crap out of it was quite unnecessary as far as Sofi was concerned. When I would ask her questions about pronunciation, for example, why the word for “I” sometimes came out of her mouth as “yo” and sometimes came out sounding like “Joe,” she would never understand what I was talking about, or why it mattered since she couldn’t hear the difference anyway. And then she would shrug off my attempts at finding a linguistic reason and tell me I thought too much.

                Even if she spoke to me in Spanish to show her love and affection, she would also address me in Spanish when she was really, really angry, because in addition to its facility for slipping into a more intimate gear, it also had some very effective built-in devices for pulling yourself away to a frigid distance. Instead of the familiar “,” I would be addressed with the formal “Ud.” As in “¡Que tenga Ud. buena noche!” “Have a good night, sir,” which of course, meant the exact opposite.

                “You’ve made sure I won’t have a good night, haven’t you?” I’d say.

                “I’m not responsible for how you feel,” she would snap back.

                Oh, but she was. And I would squirm and chafe all day long until I finally found some reason to get my arms around her and kiss her and then she would give in and everything would be all right again in my world.

                But she never, ever apologized. Oh sure, she would say “I’m sorry,” but that only infuriated me because she once admitted that she felt that Americans used the phrase so easily and so frequently that it didn’t mean anything and that when she used it, it meant that she wasn’t the least bit sorry at all, but was just saying it to end a fight.

                How do you say you’re sorry? “Perdóname” might be what you say when you fart or bump into someone, “Permítame” when you need to pass by. “Discúlpame,” means “forgive me,” but not necessarily in so drastic a context as it sounds in English. It could be only that I forgot to mail the letters this morning—Discúlpame-- or maybe so serious as that I’m sorry that I ran over your dog by accident.  Discúlpame, por favor.

                Then there is an even more vague phrase, “lo siento,” that literally means “I feel it,” but runs a range from “I’m sorry,” to “I feel bad,” to “I really, really feel bad and I’m on your side with this.” Context and intonation are everything, and the meaning expands and contracts magically to fill the sorry space. And that was what I needed at that moment. So I did know what to say after all.

                Lo siento, mi amor,” I said. I’m so very, very sorry.”

                And with that, I felt her body relax. “Te adoro,” she whispered, and then she fell asleep in my arms. And I sat there all night weeping for a young man I never knew and for a woman I thought I knew but didn’t. Even now I wonder if I ever will.


Sofi called her sister Tina in the morning and broke the news about finding Lupe, and the two of them decided to go together to tell their parents. So, late in the morning, Tina and Pauly came by the apartment. Tina and Sofi left in our car, and then Pauly told me that we had work to do.

                “We’re going to put a marker on Lupe’s grave,” he told me, matter-of-factly. “It’s not going to wait another day. The poor kid’s been lying there, all alone and unknown for too fucking long already.”

                As we got in the car, I asked Pauly if he even knew that Sofi and Tina had a brother named Lupe, and if Tina had ever told him.

                “Yeah, well, but she don’t talk about it much. The whole family is pretty much freaked out by it, always has been. I heard about it before me and Tina married, but that’s about it.”

                “Well, I never heard a thing about it,” I said. “You could have knocked me over with a feather when she told me. All these years we’re married, you’d think she’d say something about it.”

                “Yeah, well women are goofy,” Pauly responded. He gave me a dumb-shit sidelong glance and a snort as punctuation. “So how old are you now Mikey, and you haven’t figured that out yet?” He snorted again. “Check this out as an example of everything you need to know about women: Just the other day, me and Tina are in the kitchen cleaning up after lunch, and suddenly she’s standing there making this nasty snoring noise and holding her hands up to her throat.” The word came out sounding like “troat.”

                “I’m not any frickin’ rocket surgeon, but I figured out pretty fast that she was choking, so I go up behind her to do the hiney lip mover…”

                “Heimlich maneuver.”

                “Whatever. What the hell? So I put my arms around her from behind and squeeze her right under the tits, but nothin’ happens. She just keeps making sucking noises like a vacuum cleaner, and her eyes are all wild. So I did it again, grab her around the front, clasp my hands together and give it the one-two, like a backwards punch in the stomach, and whaddaya know, this piece of hard candy pops out her mouth into the window sill so hard I thought it might break the window.  I’m all like, whoa! dude!” He paused for dramatic effect. “So whaddaya think she does?”

                I waited, knowing he’d answer anyway.

                “She turns around and smacks me, right in the bread basket. ‘What the hell was that for?’ I says, and she goes, ‘You did it wrong.’ ‘What the hell do you mean I did it wrong? I says, You were choking, I did the hiney lip mover, the candy pops out your mouth. That’s what’s supposed to happen. How did I do it wrong?’

“‘You hurt me,’ she says. ‘It’s not supposed to hurt.’ And guess what? She’s pissed at me the whole damn day because of that.”

                Yeah, go figure, I thought, but I sat silently as Pauly pulled off the freeway into a neighborhood that I wouldn’t willingly go into with a police escort and in an armored car. But Pauly never seemed to notice those things—the bombed out buildings, the bums on the sidewalk, the graffiti—and so I squirmed and tried not to look as uncomfortable as I was.

                We wove up and down blocks until we found the cemetery, which was named Morbid Acres. But what we couldn’t find was a way in. So we circled the tall wrought iron fence for a half hour, having to cut around blocks where the cemetery did not abut the road. And when we finally found the main gate, and got out of the car to push on it, it was locked tight with a big old chain and a padlock.

                I’d never heard of a cemetery being locked before this, but given the neighborhood and how old and overgrown the graveyard looked, there was a good chance that it had been full so long that anyone who remembered the people buried there was probably dead too. A sign on the gate listed a phone number for visitors, but the last two numbers were scratched out—and this was in the day before cell phones anyway, so we had two choices. My preference was to go home and think of something else. Pauly was in favor of plan B.

                “All right, as always, we’re going to have to do this the hard way,” he said.

                Then he yanked open the back door of his car and pulled out a three-foot tall wooden cross, stained a light wood color, with the bottom sharpened into a stake from the back seat. As homemade artwork, it wasn’t half bad. He’d used a wood burner to free-hand engrave the name, “Guadalupe Delgadillo” and the date he died. Then underneath he had burned the words, “Lupe, lost and found. We never forgot you, bro.”  Even if the epitaph was unconventional, the marker had soul, and you could see that Pauly had put his blue-collar neighborhood heart into it.

                Then Pauly took a big sledge hammer out of the car, and hoisted it with a ceremonial flourish. I followed him to the fence and watched him look up and down and study its height.

                “You’re kidding,” I said, when I realized he planned for us to climb over the fence.

                “You see any other way?” he answered.

                The fence was easily nine feet high, with points on the end of each of its Gothic iron bars. Pauly slipped the cross and the hammer between the bars, then cupped his hands together as a step for me, looked up at me and said, “Let’s go, Mikey.” I stepped up as he lifted my foot and I managed to grab the top rail of the fence with his push, struggled to get one foot on it, then the other, and delicately maneuvered the family jewels over the points on top.  Then I did the same for Pauly, putting my arms through the rails so that he could step on my hands and hoist himself over.

                Given the neighborhood, I should have felt that we were safer on the inside of the fence than we were on the outside (and I was pleased that as long as we had to leave a car there unprotected, that it should be Pauly’s car and not mine). But now I worried about being somewhere we weren’t supposed to be, and besides, we had to find an unmarked grave in an overgrown graveyard that spread over several acres. We started walking across and between plots until we found a road. Pauly put down the cross and the hammer for a moment to pull a piece of paper out of his pocket. In his clipped handwriting he had scribbled, “plot 324west, 18north-a,” the number that Sofi gave him, whatever that meant. We wandered among the stones until we realized that there were numbered markers on the roadside and at the far end of each row. We were at 90 east, and we could see that if we went straight, the numbers dropped and then started up again with “west” designations. Ok, now.

                Then we heard a voice. “Hey, you guys! What are you doing?” It was a fat, middle-aged black man waving his arms at us from across the lawns. He was running in our direction.

                “Ignore him,” Pauly said. But in a minute, the man was upon us, huffing like a tenement radiator in January. Apparently he’d never run so far or so fast in his fat life.

                “You can’t be here,” he said.

                “Says who?” Pauly shot back. “Obviously we are here. Did you think you were just dreaming about us?”

                “Says me. I’m the caretaker here.”

                “Caretaker? Nobody’s ever taken any care of this place, from the look of it.” He paused for effect. “Oh wait, I get it, it’s like a job with the city, where you don’t actually have to do any work, right? Nice work if you can get it.”

                “I don’t need no bullshit from you buddy, you got to leave.”

                “Can’t you go cut the grass or something?” Pauly snapped back. “Oooh, never mind, from the look of you, you don’t even take care of yourself, let alone take care of this place.”

                “I don’t appreciate that mister, but you’ve got one minute to get off this property, because I’ve already called the police.”

                Pauly didn’t even look around. “Look, we’re busy,” he said. Then he kept following the numbers. “We’ll leave just as soon as we find our brother-in-law and take care of a little business,” he said. I felt like an innocent bystander. Maybe not all that innocent.

                “Aren’t you listening to anything I’m saying?” the man asked.

                “As a matter of fact, I’m not, and I can’t work while you’re hoovering over me.”

                “That’s ‘hovering,’” I said.

                “Mikey, don’t correct me right now. I’ve got a sharp stick and a big fucking hammer in my hands. I can’t be held responsible.”

                “Is that a threat?” the caretaker sputtered.

                Pauly stopped for a second and turned. His voice took on fire.

                “Now that I think of it, yeah. Yeah, it’s a threat,” he said. “So how come you’re still bothering me?”

                “Gonna be the police bothering you in a minute,” he said. “I already called them.”

                “Good for you,” Pauly said without seeming to care. The caretaker followed behind as we paced down the numbers: 300 west, 310, 320, 324, then turned north. Whereas most of the cemetery had standard headstones on the graves, or old-style plaques mounted on iron stakes, this area, obviously a potter’s field, just had simple iron plaques laid right on the ground. The grass had grown over many of them and the letters of the names and descriptions were clogged with dirt, so we got down on hands and knees and scrubbed the metal with our shirt sleeves.  After a few minutes, I found it: at least I found a plaque that read “Unknown male, Rest in Peace.” The date matched Lupe’s death.  We both stared for a bit. Pauly took the cross and pounded it into the ground over the grave. Then Pauly shocked me.

                “Let’s pray, Mikey,” he said. I’d never imagined Pauly praying, let alone seen him do it, but he grabbed my hand and squeezed it.

                “Jesus,” he started. To be honest, it sounded like he was taking the Lord’s name in vain by the way he pronounced it.

“Jesus, you know I’m not too good at this, but this is our brother in law, Lupe, who didn’t deserve to die that way and didn’t deserve to be buried this way.

                “But we’re going to make it right, Lord, as God is above us. We’re going to give this boy a proper burial with a mass and all that crap. Sorry, Lord, I shouldn’t say crap. We’re here for him now, Amen.”

                “Amen,” I echoed.

                “Oh shit,” Pauly said. I saw what he was looking at. One of Chicago’s finest was halfway to us from the gate, hand on holster as if he were expecting to make a big bust. Pauly turned back to the grave and stood with his hands folded. When the cop reached us, he called out, “What’s going on here?”

                Pauly didn’t even turn around.

                “Who are you?” he asked. “The fucking Prince of the City?”

                “Look,” I said. “Um Officer… what’s your name?”


                “Yeah, Officer Farkus. This here is our brother in law buried here. He was lost for 10 years, and my wife found out where he was buried, so we came to put a marker on his grave until we have a chance to get him reburied.”

                “They threatened me,” said the fat caretaker, “and they ain’t allowed to be here. This here is trespass, don’t you know?”

                “That so?” the cop asked.

                “No, not exactly,” I said.

                “All right you guys,” the cop said, “get this stick out of the ground and get the fuck out of here before I run you in.”

                “No,” Pauly said. “The cross stays. It’s only right. Why do you have to be an asshole?”

                “Who you calling an asshole?”

                “Do you see any other assholes here?”

                “I see a couple of them, and they’re soon-to-be arrested assholes.”

                “You know,” Pauly started slowly. “I’ve never been stupid enough to hit a police officer, but in this case it might be fun, and I know for sure that I can beat the shit out of your fat ass.”

                With that, Officer Farkus pulled his gun.

                “Go ahead and put a couple of warning shots in my back,” Pauly said. “We were just leaving anyway.”

                We started the long walk toward the cemetery gate, which was now open. I didn’t like having a drawn gun behind me, obviously—unlike Pauly, I knew full well what a bullet felt like. But we kept walking.  And we almost got to the sidewalk before two more squad cars pulled up, spilling out four more police officers. I looked back to the grave just in time to see Officer Farkus pull the cross out of the ground and head in our direction.

                We were under arrest: handcuffed behind our backs, pushed into the back of one of the squad cars. As the car pulled away, I turned to Pauly.

                “That prayer was fucking beautiful,” I said.


We couldn’t call Sofi or Tina because they were with their parents—that was what we told ourselves; the truth is that we were ashamed--and so I used my one phone call to call Rudy. He was startled when I told him what happened, but promised to come get us as soon as he finished rodding a toilet for some tenants on the second floor. There was too much information on the way…

                “I keep telling them not to flush rubbers inna crapper,” he said. “This the fourth time. I tell the guy to throw them inna garbage can or keep his little dick in his pants, ‘cause I don’ wanna come back no more to fix the toilet.”

                As I pondered the poetry of that thought, Officer Farkus wrote us out citations for criminal trespass and vandalism, and he argued with his sergeant about whether he could charge us with aggravated assault on a police officer, a major felony, because Pauly called him an asshole and said he could beat him up, but the sergeant took him to task.

                “Farkus, you jackass, he shouted, “You want to send these guys to prison for carrying a cross around a South Side cemetery? You think a judge and jury are going to put up with that? I’ve got half a mind to kick your ass myself.”

                Nonetheless, as a testament to how dangerous we were, we were left handcuffed to chairs in the squad room until Rudy could come and get us. Pauly was so angry that he couldn’t even talk. There was a definite “Alice’s Restaurant” feel to the whole thing. Or maybe it was more like an afternoon in the principal’s office in junior high. I could almost hear the scolding: “You know that this may be a mark on your permanent record.” But mostly, I was too struck by the absurdity to think, so I watched the shadows lengthen through the windows and then dozed in the chair for what must have been at least an hour.

                I heard Rudy before I saw him, though I couldn’t make out everything he was saying. He seemed very animated—not that that was peculiar—and his voice came and went as if he’d gone outside and come back in.

                “I’m alla time tell those guys to behave,” he was saying in a loud voice. “I’m sorry but I try to keep them under control and I promise they won’t cause no more trouble,” he was saying.

                What the hell? Whose side was he on? When he came into view he had the cross and the big hammer, and when he saw us, he pantomimed a big mug of exasperation when he saw us handcuffed to our chairs in the squad room.    “Look at you guys!” he shouted accusingly. “I’m talk to nice Officer Fuck-us here and he say he gonna let me take you home if you say you don’t cause no more mess.”

                Farkus seemed to wince at Rudy’s pronunciation of his name, but he didn’t say anything, perhaps assuming it was part of Rudy’s thick accent. I myself wasn’t sure.

                “So, ok, you tell Officer Fuck-us that you sorry and let’s go.”

                We signed some papers and shuffled out to Rudy’s big old car in the parking lot. Pauly sullenly got into the back seat without saying anything. I rode shotgun. Rudy fired up the old machine, and when it stopped whining, he let it lurch into gear.

                “Looky there,” he said pointing out one of the squads. “That there is that nice Officer Fuck-us car. I know this ‘cause he let me get you stuff out of it.” Then as a seeming side thought, he suddenly said, “You know what, little brother? I’m think I got a low tire on you side,” and he braked the car hard so that it stopped right next to Farkus’ vehicle. Then Rudy rooted around in the glove compartment until he found a tire gauge. He left the car running when he got out of the car on the driver’s side.

                I had my window open and watched as Rudy bent down to check the air in his front passenger-side tire. Simultaneously, surreptitiously, he reached in his other pocket and took out the three-inch switchblade that he always carried, popped it open and sunk it into the front driver’s side tire of Farkus’ car. I could hear the whoosh as the air rushed out through the gash. Rudy got back in the car.

                “My tire fine,” he announced happily. “But that tire on Fuck-us car look low. Somebody oughta tell him. Too bad, we gotta go now.”

                Rudy drove us back to the cemetery where Pauly’s car was hopefully still parked.

                “You know what, my little brother?” he said. “This a gift from God.” At first I thought he meant him bailing us out, but then he continued. “Inna war, people alla time disappear. My mother: Where she at? My cousins? Where they at? I cry at night ‘cause I’m never gonna know these things. Maybe they got bury, maybe not. God, he come to you wife, and he tell her, Mischa, he tell her where her brother is at, and that, my little brother is a gift. You gotta know it.”

                We reached Pauly’s car at the cemetery, just as it was getting dark, and Pauly and I started wearily toward it when Rudy suddenly asked, “Where you think you go, you guys? We got work to do.”

He was rooting in the trunk of his car, his rolling tool shop, tossing aside shovels and hammers and tool boxes and took out a long pair of bolt cutters. Then he walked directly to the front gate of the cemetery and quickly snipped the chain that held it shut. He threw the bolt cutters back into the car trunk and then took the cross and the hammer from the back seat.

                “OK, show me where to go,” he said.

                We pulled the gate open far enough to slip through, closed it quietly behind us and walked back to Lupe’s grave in the dark. Rudy looked a moment, then, as if he were performing any other daily task, he set the point of the stake on the ground and quickly pounded it in with a three deft stokes of the hammer. He closed his eyes and put a hand to his forehead and muttered something in Magyar—a prayer, I could only imagine. And when I saw a tear streak down his cheek, I started to cry myself, and to my surprise, when I looked over to Pauly, he was wiping away tears, too. There was nothing else to say, so we solemnly walked back to our cars, slipped out of the gate and shook hands with Rudy.

                “Mischa-batchi?” he said.

                “Yes Rudy?”

                “You cut the grass tomorrow for me?”

                “Of course.”

                Pauly drove us to Sofi’s and Tina’s family’s main restaurant. The old man was behind the counter, looking pale. I figured he went to work to keep from thinking about what he had learned that day. He was surprised to see us, grunted a greeting and shook our hands.

                “We took care of it,” Pauly said.

                Then he smiled for a quick moment and hugged us both, slapping us roundly on the backs. He brought us beers and bowls of menudo, which we ate without speaking, and then we just we went home. Sofi was already asleep when I got there, so I slipped into bed and put my arms around her and fell into an uncomfortable sleep.


I was pleasantly surprised at how quickly things happened in the next few weeks. Rudy’s shyster lawyer uncle got Pauly’s and my criminal charges dropped, free of charge. And of course, Rudy, the ultimate handyman, the quintessential neighborhood guy, had a cousin who owned a funeral parlor and had his gravediggers exhume Lupe’s casket, also free of charge, though I expect it got tacked onto the bill of some other poor grieving customer.

                Sofi’s father purchased a plot in a West Side cemetery and the family gathered for a small mass to be said in Lupe’s name at the church where Sofi grew up. Rudy was there, with his wife, Nadia, as were a handful of Sofi’s aunts and uncles and cousins and close friends of the family. But the whole idea was to keep it small and intimate, and other than the immediate family, who really cared anyway? As I listened to the priest pray in Spanish, I compared the words and the cadence with the sermons and recitations of my Sunday school past—I had not spent much time in church in the last decade. I wondered if I should be there more, or just let my soul lay where it was, stuck between cultures and between the hell I dreamed at night and the paradise I felt in Sofi’s arms before I fell asleep.

                Sofi seemed tranquil, almost happy, a welcome contrast to the tenseness and shock of the days after she found Lupe. After the priest had finished, Sofi’s father stood up to eulogize his lost son: He talked about his ball playing, his good heart, the love that cost him his life, and about his own hopes that God would forgive him for being a harsh disciplinarian when after all, the worst sin his son had committed was to fall in love. I wept, like I always weep at funerals, lost in the old man’s grief. I cry at weddings, too, and even if I try to read aloud something that is very beautiful. I had to memorize the Robert Frost poem, “Stopping by woods on a snowy evening” when I was eight years old, but every time I recite it, my voice cracks and my eyes water by the time I get to the last lines, “The woods are lovely, dark, and deep/ But I have promises to keep/ And miles to go before I sleep/ And miles to go before I sleep.” The lines were running through my head at that very moment. “And miles to go before I sleep.” Nothing brings those words home more than the untimely death of a young man.

                We met the body at the cemetery—the remains had been sealed into a new casket, and we prayed again as it was lowered into the ground at the Catholic cemetery.

                Afterward, we all reunited at Sofi’s parents’ favorite Mexican restaurant down in the Pilsen neighborhood on the near South Side. Even though we had reservations, there was a short wait. The hostess fretted over Sofi’s parents, knowing full well that her father owned the number of restaurants he did, and she promised that we would have the very next table that came available.

                Pauly fidgeted and tried to flag down a waitress to get a margarita. Behind us was a gaggle of fat white folks, three couples, it seemed. And when I say they were fat, I say it because it was pathological. They were all fat, not just one or two of them, and I suspected that they were related—or else belonged to some perverse club with a name like Overeaters Anonymous.

                Pauly got his margarita and winced as he took the first gulp, though I don’t know if it was because of the strength of its tequila, or because of the inane patter of the fattest lady, as she rambled on about all the people she disliked.

                The hostess came up to us and told us that our table was ready, but as my mother- and father-in-law started to follow her, the loud fat lady pushed in front of them.

                “I’m sorry, but we’ve been waiting longer. That’s OUR table,” she said crossly as she grabbed the menus out of the hostess’ hands. Then they rushed to the cleared table.

                My mother-in-law, who would never in her life have thought to touch another person in a public setting the way she had just been jostled, had a frozen look of horror on her face after being pushed so rudely.

                “Don’t ever get between a fat lady and her lunch,” Pauly quipped.

                My father-in-law suggested we all go someplace else. The hostess was mortified and apologized profusely for the rudeness of the gueros gordos.

                “Look, look, we can wait,” I said, trying to be conciliatory. I turned to Sofi. “I’ll be damned if we’ll act like those people.” She squeezed my hand in response, then calmed her parents. Pauly sipped his margarita.

                And within minutes, the hostess had recruited a couple of waiters to set up a table for us by the window. We settled in and ordered drinks. Sofi’s mother was still mortified; her father seemed pacified. Rudy was smiling broadly and was already studying the menu and asking questions about the food, and Pauly was ordering a second margarita. Then I noticed the mariachi band.

                There were four of them: two guitarists, a bass player, a trumpeter, dressed in their elaborate costumes with the big sombreros and all the metal buttons. I flagged them over.

                Alguna canción para Uds., amigos?” the leader asked. “A nice song for you, my friends?”

                Not for us, I explained. But here’s five dollars, I said in Spanish. See that table over there? I want you to go over there and play the most offensive, nasty and mean-spirited song you know. Can you do that?

                A la órden,” he answered with a hint of a smile on his face. “At your service.”  Seconds later he was tableside with the piggies and his conjunto launched into a filthy song about a Venezuelan beauty queen who fucked her way to the top. All the Spanish speakers in the restaurant turned to look, their mouths open with surprise that turned to smiles. The piggies had no idea. They clapped happily along with the cheerful music without realizing what was being sung. Tables of people began laughing. Sofi kicked me under the table, but I was smiling broader than anyone.


After lunch, we took Simon, the dog, down to the lake. Sofi held my hand all during the half-hour walk there. She was quiet, but she seemed at peace with herself and at peace with me. I still had a bit of a lazy-afternoon margarita buzz going, and I assume that she did too.

                Lake Michigan sparkled playfully just beyond Lake Shore Drive. Even today, every time I see it, I’m struck by its vastness. It rolls and heaves like an ocean at times, then lies quiet and foreboding at other times. But Chicagoans have always used it as a bearing. The lake is east, always east, and if you know where the lake is and can read the numbers on the street signs, 2400 north, 600 west, you know exactly where you are.

                I loved the lake. I was one of the few and the crazy who visited it in the winter, too. Even if it was deadly cold, the water only froze 20 to 30 feet offshore and coated the pilings with ice so that they looked like igloos. To fall through that ice would mean quick death. But the water was frigid even in the summer, too cold to swim until late August, then after a few weeks when the nights turned crisp again, the temperature would drop too low for a body to stand.

                I’d seen the lifeguards pull kids from between the rocks and then pump on their chests and breathe into their mouths to bring them magically back to life. Once I experienced a mini seiche, which is like a tidal wave; I was standing dry-footed on a piling about a foot above the waterline. An instant later, without seeing anything change, I was suddenly standing in water up to my shins.

                On the day of Lupe’s mass, it was late August. I still carry an image in mind from about a year later, the next August, when Sofi was very, very pregnant with our first son. We’d had a sweltering heat wave and had fled to the lake to cool down. She wore one of those old-fashioned pregnant-lady bathing suits with a flap of fabric to cover the belly, and I remember she was treading water on a blue-sky perfect Saturday afternoon, hanging on to a piling so that only her head poked above the water, with that big lovely belly floating like a beach ball just beneath the surface of the water. I’ll carry that memory to the grave with me. So the lake was the perfect place to go that afternoon, and Simon the perfect distraction from the day’s drama.

                As always, Simon carried his own ball, excited about what was to come. I’d taught him to swim when he was a pup. Dogs don’t really swim instinctively: they thrash and paw at the water with their heads straight up and their hind legs straight down and have to be taught how to move on a level keel. When he was real little, I would take Simon down to the harbor where there was a shallow little back water and entice him with a stick, holding it in front of him over the water. He would go after it, but I’d always keep it just out of reach until he was in over his head and didn’t even realize he was swimming.

                He was a natural retriever, ball-obsessed like most Labs, and when he had grown a little larger, I took him to the beach at Fullerton Avenue and tossed the ball into the shallows. He’d jump through the waves to get it, then surf back to shore, shake vigorously, scattering a rainbow of drops, and then charge back to where I stood ready to throw it again, leaving a wake of sand flying behind him.

                I first let him swim in the deep water off the rocks at Diversey Harbor on a warm day in March, and he didn’t care how ghastly cold the water was, then or since. I threw the tennis ball about 15 feet out, and he launched like an athlete, leaping fearlessly and headlong to a mighty splash and swam out to the ball. Unfortunately for me, when he got to the ball and grabbed it in his teeth, instead of turning around and swimming back toward the rocks, he kept swimming straight out to sea, headed toward the state of Michigan, if he could make the 60 or so miles to the other shore. I called him several times, but he was on a mission, and I had no choice but to jump into the frigid snowmelt water and swim after him—much to the amusement of the people watching from shore. I’m surprised I didn’t have a heart attack from the temperature drop, but I was younger then, and I loved that dog. I did not much love the laughs of the sunbathers as I sat shivering and gasping for breath, trying to dry out in the sun after Simon and I climbed back onto the rocks.

                But Simon learned from his mistakes, even if I never did. And as he got better at retrieving from the deep water, he’d leap into four-foot seas, then effortlessly glide back and pull himself up out of the water to return the ball at my feet. It was so beautiful to watch that he often drew a crowd. And there was something very relaxing about the thoughtless rhythm of throwing and watching him jump and swim and throwing and watching him jump and swim.

                Sofi and I spent an hour at least that day, hardly talking, but enjoying each others’ company and drawing energy from the dog’s pure joy at doing what he was bred to do. He launched himself joyously into the water over and over, and we laughed as hard as we needed to laugh. Then, because neither of us wanted to go home, we started to walk up the lakefront while the sun dropped lower and lower in the sky. It was a perfect evening, up until that point. Other strollers passed by, apparently in the same mood as us.

                But the crowds thinned up by Belmont Harbor where the sailboats tie up to the docks, and our bliss overshadowed the city street smarts that tell you that when it’s too calm and too quiet and too lonely, things can quickly get too scary. Sofi pulled me along down the steps to the piers so that we could walk among the yachts and fantasize about taking one out to sea.  I didn’t even hear the kid sneak up on us.

                “Whassup?” he said. We both turned and there he was, looking like the dictionary definition of “punk ass.” Why kids wore ski caps in the summertime, I’ve never understood. His was pulled low. His pants hung halfway down his ass, and his shoelaces were untied—which also made no sense to me, because if you’re going around jacking people, as he was, you’d think you’d want to be ready to run away in a gangbang second. I imagine that would be pretty hard to do in untied loose shoes and with your pants hanging down around your knees, but I’m just an old guy and what the hell do I know? And he had asked me a question.

                “Excuse me?” I asked.

                He pulled out a little gun and pointed it at us. “No, excuse me, mister. I want your money.”

                Another little man with a gun; I marveled for a moment at how tiny the gun was, and then got that sinking feeling that things were starting over again for me, but I did take the $15 or $20 I had in my front pants pocket and handed it to him. He turned to Sofi and said, “Now you.”

                Mande?” she said. The kid looked to be Mexican, but he didn’t seem to understand Spanish, and she was pretending not to understand English. Simon clearly didn’t understand anything except that he wanted to move on, because he walked up to the kid and licked his free hand and then stuck his nose in his crotch. The kid jumped back.

                “Get him away from me,” he shouted. “I don’t want to have to shoot no dog!”

                Not to be discouraged, the dog picked up his ball and stuck it in Sofi’s hand, and she took it.

                “Give me your fucking money,” the kid shouted at Sofi. She nodded, acting, as if she understood this time and started digging in a pocket, but as she did, she started moving closer to the pier’s edge. The kid seemed somewhat pacified that he was getting what he wanted, and he sidled in the same direction with her. I didn’t know what she was going to do, but it didn’t seem wise to me. Then the ball just kind of, sort of, dribbled right out of her hand and rolled between the kid’s legs.

                The dog bolted to chase after it, and when the ball passed between the kid’s legs, so did the dog. The kid fought to keep his balance, but Sofi was on him, with a quick shove, and she caught him when he already had one foot in the air. The push moved him completely off his feet and he splashed backwards into the water. He went under for a second and then coughed his way to the surface, flailing wildly.

                “Help me!” he burbled. “I can’t swim!”

                Silly me, I looked around for a pole or something to extend his way and pull him out, but Sofi let out a piercing shriek. “¡Pinche cabrón!” she shouted—“You fucking bastard!” The dog, oblivious to all of it, brought the ball back to her, and she angrily grabbed it and drew a bead on the kid, throwing it hard and true and hitting the little fucker right in the forehead. It knocked him briefly back underwater. He flailed more, coughing up mouthfuls of frog’s eggs and brackish harbor water.

                But the dog was thrilled to see the ball thrown, and before I could grab him, he had leapt off the pier, bouncing the ball off his nose, and in the process, pawing the kid and pushing him underwater again.

                Sofi was still screaming obscenities, and she seemed to looking around on the ground for something else to throw. I managed to grab her just as she picked up a small anchor from one of the sailboats. She pulled on it hard and carried it toward the water, then jolted back when she reached the end of the line that tied it to the boat.

                “My God, you’ll kill him with that,” I said.

                ¿Y eso?” she answered—basically meaning, “So what’s your point?”

                The dog had swum around to shore and dropped the ball a second to shake off water before running back to us. I grabbed Sofi’s hand and said, “Let’s go.”

                She held back for a second and then followed me. We ran laughing all the way back to our apartment, hand in hand, and we made love all night long.

From Into Umbria


Every time I go to Italy, I fall in love with the way Italian women walk.

It’s a floating strut, usually done in high heels, regardless of the irregular cobblestones and sidewalks. Their heads and shoulders never slip from a seamless level trajectory, they float stationary, and yet somehow they can still make that thick ponytail bob or that impossibly curly hair flow behind like a comet tail.

Ladies, warn your gentlemen friends: If they look too longingly—or just too long—they’re likely to get a talking-to. Italian women don’t like to be stared at. Once in the Rome airport, I didn’t even realize I was looking in the direction of a busty blonde, until I noticed she was angrily sticking her tongue out at me.

Oh, don’t get me wrong. I’m not a peeper. I like watching everyone when I travel, but this is something else, and I’ve often thought I could make a fortune by opening a chain of schools that teaches women to walk like Italians.

Le italiane will pretend not to see you if they don't know you. You need an entree to converse. For example, on the train to Rome, I sat across from a young woman who looked every way but in my direction, her gaze seeming to slip over me without pausing. Then, after an hour on the train together, she yawned.

"Now you'll have me doing that too," I said in Italian with mock drama. She laughed and then happily told me her life story over the rest of the trip.

Such a wonderfully quirky people; Italians are closed and suspicious until you get an introduction, after which they greet you warmly when they see you out on the piazza, and they cry like they’re sending you off to war when it’s time for you to go home.

They can be churlish: One day I was walking from the school to my apartment and I heard a splat and a rattle when a woman dropped her plastic grocery bag as she was mounting her bicycle. An older man grunted a loud “eh” as he passed, without offering to help. She let out an angry stream of displeasure, and all I could make out was that she was telling him how impolite the men of Naples are.

Or frustratingly obtuse: One Friday morning, Roberta picked me up at my apartment to drive me to the Laundromat in the walled section of Città di Castello. She sped off in her car after I got out, and when I reached the door of the Laundromat, I realized it was closed. I waited a few minutes with my filthy clothes bulging out of a satchel. Eventually two old ladies came out of an adjacent door.

The sign on the door said “Open every day, 7 a.m. to 11 p.m.”

E chiusa, It’s closed,” one of the older women said, as if I should know that already. “La signora e morta, The owner is dead.”

I supposed that was what happened to you if you worked every day, but I didn’t walk away soon enough.

Cosa voleva?” the old woman asked without seeming to notice the load of dirty clothing I was balancing. “What was it that you wanted?”

“To wash my clothes!”

She shrugged because it was not her problem and lumbered off.

We are responsible only for ourselves, I suppose, an attitude that applies out on the Italian highways. It’s every man for himself, Mondo Cane, and for that reason, driving in Italy without swearing would be like driving in New York City without the use of a middle finger.

I also learned never to get into a philosophical conversation with an Italian woman while she is driving. We were going 80 kilometers per hour on the highway, tailgating the car in front of us. I don’t even remember what we were talking about, but suddenly, Roberta was looking straight at me instead of the road, with both hands off the wheel, because she needed to wave them at me to make her point.

Shortly afterward, we were pulled over by two carabinieri, federal police wearing blue and red hats. They had parked their squad car along the highway, and one waved a wand at Rob’s car, which meant she had to pull over. The officer then asked for license and registration and ran a check on the numbers.

Rob was smirking when we drove off again, and I asked why. When her daughter Eliza is pulled over, and the cops ask her why she is not wearing her seat belt, Rob said, Eliza grabs her breasts and kneads them, emitting “eh’s” and “ah’s” in staccato chirps to express the obvious and unpleasant fact that her bosom is chafed by the seat belt, and before long, the officers are so uncomfortable that they let her go without a ticket.

What do I like about Italians, aside from that mischievous sense of humor? They are generous to a fault and went out of their way to show me their country.

I love that when there are adults and children together, there is always animated conversation between them. The youngsters on their way to school on the train are pleasantly ebullient, hands flying around as they talk. At the soccer field down by the Tiber River in Città di Castello, the gray haired-men and the young studs play together, shouting “Dai! Dai!” “Come on!” as the forward makes his run. A pass and a shot; a goalie charges out of the box to snag the ball one-handed before drop kicking it.

“Ecco! There you have it!” his teammates croak.

There are moments of gratuitous delight: I was watching the street life from a table outside a cafe on the piazza. A mother walked by carrying a very small boy, and an older man at a table said “Ciao” and waved to him. The tot raised a hand, fingers together, and, unable to master the sibilants of “Ciao,” instead shouted, “Ow, Ow, Ow!”

Minutes later, an inexplicable parade passed by, seemingly important people sporting over-the-shoulder sashes, followed by older men wearing uniform warm-up sweats as from a sports team. The music sprang up suddenly from around the corner and the marching band miraculously appeared, snaked around the Bar Centrale and disappeared down the main street.

There is love lost expressed in unexpected places: Graffiti on the wall by the Duomo desperately said “Simi, Ti amo troppo bene, I love you too well,” and I can only hope that Simi, the intended recipient, saw it there.

On a concrete walkway over a thin, chalky stream running into the Tiber, I found two laments painted in blue paint and 10-inch letters on the bridge:

When I loved someone

I only realized she

was important after

I lost her.


It all began here

But you were

Important already

From the first.


I love the sounds of Italian, which can be lilting and musical or clashing and cacophonous. I’m fascinated by the generational differences in its voices. One day, there were two baristas at the café, a beautiful young girl, with short straight blonde hair in a long bob and a stud under her lip who spoke in a high baby-doll voice and a 40ish woman with curly short hair with a deep and resonant voice. Older men and women speak very low in their throats, which makes the voice box honk or rasp or trill like a cartoon character. The children sound like Topo Gigio, a famous Italian mouse puppet from “The Ed Sullivan Show” in the 1960s.

While speaking French or Spanish I find that women are naturally easier to understand than men because they speak more slowly and clearly and pronounce words more distinctly. In Italian, it’s the contrary, especially among college-educated men who speak in a slow, halting cadence that allows me enough space to catch up to what they are saying.

The language is as complex as the people and to an extent, Umbrian men and women have different accents. The women, for example, pronounce “Arrezzo,” the name of a town just over the Tuscan border, the way it’s supposed to be pronounced in Italian: Ar-RETS-zo. The men, however, lisp it Ar-RETH-tho, like Castilian Spanish. But if they are speaking in local dialect, I understand nothing.

Italians are natural hostage takers, whether you are in the lecture hall or in a private car. One day Rob asked if I wanted to come to her house for lunch between classes, and I told her I was not hungry.

"Well, I have to cook for my daughter," she said, "so will you come along?"

“Ok,” I said.

When we got to her apartment, she pulled out the broccoli she bought at the farm store the day before and started cleaning it while boiling water for pasta. I assumed she was preparing dinner for later that evening. Then the parboiled broccoli was cut up and dumped into a skillet with garlic and olive oil and then garnished with cheese.

"Ok, what do you want for a second plate?" she asked.

"Rob, I said I’m not hungry."

"Yes, but I made this food. You need a second," she said, as she shredded lettuce and radicchio for salad.

Sometimes you just have to shut up and eat.

The Gray Area of Prosecutor Conduct


Michael Kiefer | The Arizona Republic

October 27, 2013

Noel Levy was Arizona Prosecutor of the Year in 1990 when he convinced a jury to convict Debra Milke of first- degree murder for allegedly helping to plan the murder of her 4-year-old son. A year later, he convinced a judge to send her to death row.

It was a scandalous case: Prosecutors charged that in December 1989, Milke asked her roommate and erstwhile suitor to kill the child. The roommate and a friend told the boy he was going to the mall to see Santa Claus. Instead, they took him to the desert in northwest Phoenix and shot him in the head.

But neither man would agree to testify against Milke, and the state's case depended on a supposed confession Milke made to a Phoenix police detective. Milke denied confessing. The detective had not recorded the interview, and there were no witnesses to the confession. When Milke's defense attorneys tried to obtain the detective's personnel record to show that he was an unreliable witness with what a federal court called a "history of misconduct, court orders and disciplinary action," the state got the judge to quash the subpoena.

"I really thought the detective was a straight shooter, and I had no idea about all the stuff that allegedly came out," Levy recently told The Arizona Republic.

But in March of this year, after Milke, now 49, had spent nearly 24 years in custody, the 9th U.S. Circuit Court of Appeals threw out her conviction and sentence because of the state's failure to turn over the detective's personnel record so that Milke's defense team could challenge the questionable confession.

The 9th Circuit put the onus on the prosecution.

"(T)he Constitution requires a fair trial," the ruling said, "and one essential element of fairness is the prosecution's obligation to turn over exculpatory evidence."

The 9th Circuit judges ordered that Milke be retried within 90 days or be released. The chief circuit judge referred the case to the U.S. Attorney General's Office to investigate civil-rights infringements. Under the 9th Circuit order, prosecutors must allow the detective's personnel record into evidence if they use the contested confession.

Prosecutors are responsible for the testimony of the law- enforcement officers investigating their cases. Cops and prosecutors are the good guys. They put criminals in prison, sometimes on death row. Juries tend to believe them when they say someone is guilty. They don't expect them to exaggerate or withhold evidence. They don't expect their witnesses to present false testimony.

Yet The Arizona Republic found that, when the stakes are highest, when a trial involves a possible death sentence, that's exactly what can happen. In half of all capital cases in Arizona since 2002, prosecutorial misconduct was alleged by appellate attorneys. Those allegations ranged in seriousness from being overemotional to encouraging perjury.

Nearly half of those allegations were validated by the Arizona Supreme Court. Only two death sentences were thrown out, one for a prosecutor’s tactics that were considered overreaching but not actual misconduct because a judge had allowed him to do it. Two prosecutors were punished, one with disbarment, the other with a short suspension.

There seldom are consequences for prosecutors, regardless of whether the miscarriage of justice occurred because of ineptness or misconduct.

In fact, they are often congratulated. Since 1990, six different prosecutors who were named prosecutor of the year by the Arizona Prosecuting Attorneys Advisory Committee also were later found by appeals courts to have engaged in misconduct or inappropriate behavior during death-penalty trials, according to The Republic's examination of court documents.

And when prosecutors push the limits during criminal trials, whether crossing the line into misconduct or just walking up to it, there are risks: Convictions like Milke's get overturned, even if it takes 24 years, and innocent people, like Ray Krone, go to prison.

'Critical evidence'

In 1992, Levy helped send Krone to death row for a murder he did not commit. Krone's conviction and death sentence were thrown out three years later because the court had allowed Levy to present a videotape about matching bite marks into evidence that the defense had not had time to review.

Krone was dubbed the "Snaggletooth Killer" because of his twisted front teeth, and Levy found experts who said that those teeth matched bites on the victim's breast and neck.

"The State's discovery violation related to critical evidence in the case against the accused," the Arizona Supreme Court ruled when it tossed the case. "Discovery" refers to evidence that the opposing attorneys are supposed to make available to the other side before trial.

At retrial, Levy got another first-degree murder conviction for Krone, though at the second trial, Krone was sentenced to life in prison, where he spent seven more years.

In 2002, Krone was exonerated by a true DNA match; another man was convicted of the murder.

"It never came out that one expert said it (the bite mark) wasn't a match," Krone told The Republic. There were footprints that didn't match, DNA that was sketchy. And, as Krone said, other evidence was disregarded: an eyewitness account about a man seen near the crime scene who turned out to be the real killer, for example.

Krone sued Maricopa County and the city of Phoenix for his conviction and settled for more than $4 million.

Levy retired from the Maricopa County Attorney's Office in 2009 for medical reasons while in the middle of another capital murder trial with accusations of prosecutorial misconduct. That was the trial of Marjorie Orbin, who was charged with killing her husband and cutting his body into pieces, one of which was found in a giant plastic storage tub left in a desert lot in north Phoenix.

During Orbin's trial, Levy was twice accused of misonduct by Orbin's defense attorneys.

The first allegation was for denying Levy had spoken at the sentencing hearing of a jailhouse snitch who testified against Orbin, when he had. Then, Levy was accused of threatening another snitch who had recanted her story; during a break in her testimony, while the judge and the jury were out of the courtroom, he asked her and her attorney if they knew the maximum penalty for perjury, according to appeals court records.

Levy told the court that he was only "kibitzing" with the witness' attorney and not actually speaking to the witness herself.

The judge made a special instruction to the jury as a remedy, essentially telling them what had happened, and denied the motions for misconduct. Levy was stricken ill before the trial ended and another prosecutor took over. Orbin was found guilty, but the jury did not impose the death sentence.

There were no repercussions for Levy in that case, just as there were none in the Krone or Milke cases. The Maricopa County Attorney's Office refused to turn over his personnel file to The Republic, despite a request under the state's public-records laws, saying it was in "the best interests of justice."

"I just did my job, and I did it ethically," Levy said. "I'm fully aware of my ethical obligation to present evidence. It's up to the jury to make a decision."

As for how he feels now that a man spent 10 years in prison because of one of those jury decisions, Levy answered, "I don't look back and judge myself to say I did something wrong to Ray Krone.

"Did I commit some kind of sin? Should I go to confession and confess to you?"

Given great latitude

Prosecutors, not judges, not police, determine what, if any, charges to file, and they obtain indictments from the grand jury. They, more than a jury, determine whether a defendant acted in self-defense. They have enormous discretion over how the case unfolds, and judges grant them great latitude in their arguments.

"Prosecutors wield an enormous amount of power, including the ability to seek someone's death," said former Maricopa County Attorney Rick Romley. "Considering the magnitude of this power, prosecutors have an obligation to exercise good judgment, and they must temper their powers with wisdom. Winning at all costs should play no role in being a prosecutor. Then and only then will justice be ensured."

But that doesn't necessarily happen, and Romley's 16-year tenure as county attorney was not free of allegations of misconduct by his line prosecutors in capital cases: Krone's and Milke's, for example. The way the justice system really works is that if you are charged with a crime, you are likely to be found guilty of something.

In Maricopa County Superior Court, for example, of 2,700 felony cases terminated in July of this year, 1,706 ended in plea agreements, according to sources. Only 2 percent of felony cases went to trial. Of the 65 trials that ended that same month, 59 ended in guilty verdicts, four in mistrial and two in acquittals.

"You indicted somebody, now you've got to win," said defense attorney and former Watergate prosecutor Larry Hammond.

"Prosecutors really don't take seriously the ministry of justice," Hammond said. "They see themselves as adversaries."

And they often fight their battles in the gray areas of the law.

On a recent afternoon, a Maricopa County Superior Court judge was talking about prosecutors.

She drew a line on the table with her finger and then placed an eating utensil there to mark the line.

"That's misconduct," said the judge, who asked that her name not be used. Judges are loath to comment on cases for ethical reasons, and because they need to remain impartial to the attorneys who come before them.

Then she placed another utensil an inch away and parallel to the first on the table.

"That's reversible error," she said, referring to the level of misconduct that can get a sentence or conviction thrown out.

She put her finger in the space between the utensils and said, "That's where a lot of prosecutors operate."

Maricopa County Attorney Bill Montgomery had a quick counter.

"If courts are not enforcing the Rules of Professional Responsibility as they pertain to the conduct of defense attorneys and prosecutors, they are then responsible for what goes on in court," he said. "However, mere differences of opinion as to how a case should be tried cannot be the standard either."

Montgomery says he has beefed up prosecutor training to avoid misconduct and maintains an ethics committee to look into the actions of prosecutors, judges and defense attorneys alike.

"I'm trying to create an environment where prosecutors hold each other accountable," he said.

Tricks of the trade

As in any profession, there are tricks of the prosecutorial trade, ways to sway a jury without crossing the line.

You ask compound questions and then demand yes or no answers, for example. When the witness can't answer, you accuse him of being argumentative.

When the defense attorney is making a good case, you might accuse her of unethical conduct. You make objections in the same way football coaches call timeouts to slow a drive to the end zone.

And sex not only sells, it convicts.

"A good way to turn a questionable capital case into a definite capital case is to inject the sex component," said Tucson attorney Rick Lougee, "very often with little or no proof of the allegation."

You might also drag your feet on disclosing evidence and witness lists.

"Every piece of evidence is a fight, even if it doesn't matter to them," said Alan Tavassoli of the Maricopa County Public Defender's Office.

When does trickery become misconduct? The most frequently cited instances in appeals are withholding evidence that could aid the defendant, presenting false evidence, excluding jurors for racial reasons, making over-the-top statements, letting slip information that has deliberately been kept from the jury and disobeying a court order.

There have been few studies of prosecutorial misconduct. The cases are hard to identify, because they are simply not tracked in court databases. Instead, researchers have to rely on prominent cases memorialized in case law or anecdotal information.

According to a Pulitzer Prize-winning study by Ken Armstrong and Maurice Possley at the Chicago Tribune, between 1963 and 1999, at least 381 homicide convictions nationwide were thrown out for those infractions, including 67 in which the defendant had been sentenced to death.

And according to the Tribune, though the appellate courts frequently excoriated the prosecutors' actions, only five were punished, but not by any state lawyer disciplinary agency. More frequently, the Tribune reporters wrote, the offending prosecutors were rewarded for getting the convictions.

A similar study conducted in 2010 by Possley and Santa Clara University law professor Kathleen Ridolfi on behalf of the Northern California Innocence Project identified 707 instances of prosecutorial misconduct between 1997 and 2009 in California courts. But only 159 of those cases resulted in a mistrial or a reversed conviction or sentence. The study found that prosecutors were disciplined in only 1 percent of those cases.

Ridolfi and Possley also took a look at Arizona and found 20 state and federal cases between 2004 and 2008 in which prosecutors were found to have committed misconduct. Only five of the convictions were reversed. No prosecutors were disciplined.

'Harmless error'

In Arizona, all death sentences are subject to a mandatory "direct" appeal to the Arizona Supreme Court. The Arizona Republic reviewed all direct appeals of death sentences issued by the court between 2002 and the present.

Among those 82 direct appeals, there were 42 in which the defendants alleged prosecutorial misbehavior or outright misconduct, 33 of them from Maricopa County, which, as the largest county, has the busiest Superior Court.

The Supreme Court justices found that impropriety or misconduct had occurred in 18* of those 42 cases. But only two were reversed and remanded because of the behavior (in one case characterized only as overreaching). Two prosecutors were disciplined.

The offenses varied in seriousness from rolling eyes and sarcasm to introducing false testimony and failing to disclose evidence that might have helped the defendant.

But, overwhelmingly, even when misconduct was found, the high court determined that it was "harmless error," the defendant would have been convicted anyway, or the judge had cured the problem by making a jury instruction. Some of the most egregious instances do not show up in The Republic's study because the misconduct triggered a mistrial or caused the prosecution to offer a sweetheart plea deal; for instance, when a prosecutor had improper contact with a disgruntled member of the defense team or when it appeared as if the state had been listening in on a defendant's jail calls from his attorney.

According to case law, in order to declare a mistrial for prosecutorial misconduct, a trial must be "permeated" with bad behavior on the part of the prosecutor that "so infects the trial with unfairness as to make the resulting conviction a denial of due process."

Judges are reluctant to risk such drastic measures. If a judge or appellate court were to reverse a case because of misconduct, the defense could claim it amounts to double jeopardy, making it impossible to retry the suspect.

Prosecutors are allowed great latitude during closing arguments, the justices wrote over and over in the death- sentence direct appeals. Or because a defense attorney didn't object at the time of the alleged infraction, the defendant forfeited the option of appellate scrutiny.

"There are no consequences," said Susan Corey of the Office of the Legal Advocate, one of the county's three indigent-defense agencies. "There's absolutely no repercussion."

The majority of attorneys disciplined by the state Bar are attorneys who handle money: divorce attorneys, probate attorneys, civil attorneys. More defense attorneys than prosecutors are referred to the Bar, partly because the County Attorney's Office has an ethics committee.

It was established by former Maricopa County Attorney Romley. His successor, Andrew Thomas, focused on attacking defense attorneys. Thomas was later disbarred.

Montgomery said the ethics committee "only looked at possible referrals (to the disciplinary agencies) of judges and defense attorneys."

He said that it now looks at prosecutors as well, though he would not reveal any details or if anyone had been referred.

"Sometimes defense attorneys are hesitant to file Bar complaints against prosecutors because they're afraid for their next case," said John Canby from the Maricopa County Office of the Legal Defender, another of the three county defense agencies. "Playing nice and getting a good plea is usually the way to go."

"Lawyers in general don't like filing Bar charges," said Karen Clark, who represents other attorneys charged with ethical violations and has served as a prosecutor for the Bar.

"Nobody likes a rat," Clark said.

Repercussions possible

Filing a complaint, in fact, can have more repercussions for a defense attorney than unethical conduct has for prosecutors, as Rick Lougee discovered when he referred a prominent Pima County prowsecutor named Ken Peasley to the state Bar.

Peasley was Arizona Prosecutor of the Year in 1994, the year after he got death penalties imposed against two men and a teenager charged with murdering three people in a South Tucson mom-and-pop store called the El Grande Market.

During his career, Peasley prosecuted 140 murder cases, about 60 of them capital cases. He was a death-penalty machine, charming, forceful, well-respected by judges and lawyers alike. Except that he cheated.

"Prosecutors like Peasley have learned that you try people, not facts," Lougee said.

They go after the defense attorneys, the witnesses. They convince the jury that regardless of the facts, the defendant is a bad person and must be guilty of something.

Peasley got all three of the El Grande Market defendants sent to death row, largely on the testimony of an informant. But Peasley misrepresented the informant's knowledge, claiming that police knew nothing of the defendants until the informant brought them up. In fact, police were already aware of them. Nonetheless, Peasley lied to the judge and the jury and encouraged a witness to commit perjury.

Two of the three convicted murderers were granted a new trial because the jury foreman in their joint trial wavered on whether he supported the verdict when the jurors were polled.

The two defendants granted retrials were tried separately the next time. Peasley brought in the same perjured testimony during the retrials. One of the defendants was sent back to death row. Lougee got the other defendant acquitted in 1997, but he had figured out the deception. He filed his Bar charge that Peasley conspired to present false testimony and had repeated the perjury in the retrials.

The complaint made no difference at first, and Peasley was promoted shortly after the complaint was filed. He was named Prosecutor of the Year again in 1996. Judges rallied around him. He traveled the state to train other prosecutors. He won national awards.

Lougee said he was shunned by the legal community for having made the accusation.

But the state Bar took the complaint and passed the investigation to Karen Clark. It took Clark seven years to work out the case, but it ended, in 2004, with Peasley being disbarred by the Arizona Supreme Court. He has since died.

After his disbarment, the death penalty from the retrial was thrown out because of Peasley's behavior. The third defendant remains in prison, though his death sentence was commuted to life in prison when the U.S. Supreme Court ruled that killers cannot be executed for murders they committed before the age of 18.

"Ken Peasley corrupted the system for 15 years," Lougee said. "That puts the system at risk for more than just my clients."

*After this series was published, two Deputy Maricopa County Attorneys complained about having cases included in the online database. One was a case in which the Supreme Court wavered over whether a prosecutor had gone over the top but concluded that even if he had, the trial judge had dealt with the problem. The second was a clear-cut Brady violation that compelled a judge to preclude evidence; the prosecutor argued that the Supreme Court had not found the misconduct, even if the trial judge did. The newspaper wrote corrections. Nothing other than the numbers in the database were affected.



Accusations of misconduct rarely result in mistrials

October 28, 2013

Richard Wintory was Arizona Prosecutor of the Year in 2007.

Wintory had spent 20 years as an assistant district attorney in Oklahoma, another seven in the Pima County Attorney's Office, and by 2010 had moved on to the Arizona Attorney General's Office, where he continued to try criminal cases, especially death-penalty cases. Now he is chief deputy in the Pinal County Attorney's Office.

He is also the focus of an investigation by the State Bar of Arizona because a Pima County Superior Court judge referred him to the Bar for improper contact with a member of a murder suspect's defense team.

Prosecutors are frequently accused of misconduct during criminal cases, and even if a trial judge or a court of appeals agrees that they acted badly, it rarely affects the conviction or sentence of the trial defendants.

Wintory calls himself an "impassioned" attorney; others might say he pushes the envelope.

"In the 30 years I've been a prosecutor, I've had many people file complaints and lawsuits against me, but I've never been disciplined," he said.

In Arizona, prosecutor misconduct is alleged in half of all capital cases that end in death sentences. Half the time, the Arizona Supreme Court agrees that misconduct occurred in those instances, but it rarely throws out a conviction or sentence because of it.

The Arizona Republic reviewed all of the Arizona Supreme Court opinions on death sentences going back to 2002. Of 82 cases statewide, prosecutorial misconduct was alleged on appeal by defense attorneys in 42 and the court found improprieties or outright misconduct in 18* instances. But only two of those death sentences were reversed because of the improprieties, and only two prosecutors were disciplined.

The offenses varied in seriousness from excessive sarcasm and vouching for the sincerity of witnesses to introducing false testimony and failing to disclose evidence that might have helped the defendant. But overwhelmingly, even when misconduct was found, the high court determined that it was "harmless error." The most serious examples did not appear in those cases because the misconduct caused a mistrial or the prosecution offered a favorable plea agreement to avoid mistrial, as in Wintory's case.

It is rare for prosecutors to be referred to the state Bar for misconduct, let alone be disciplined by the Bar or sanctioned by trial judges. And whether Wintory will be disciplined remains to be seen.

Formal complaint

Wintory had a history of allegations of prosecutorial misconduct in death-penalty cases before he came to Arizona. One death-penalty sentence he obtained in Oklahoma was thrown out because of Wintory's closing argument, which included "yelling and pointing at the defendant as he addressed him directly," according to a ruling by the Oklahoma Court of Criminal Appeals.

"This Court finds that the prosecutor in this case committed serious and potentially prejudicial misconduct," the opinion went on to say.

Wintory says he learned from the experience.

"Since that trial, I don't point at defendants. I don't do closings like that anymore," he said. "The reason why is you don't want to put (the victim's) family through those kinds of cases."

In 2010, while at the Pima County Attorney's Office, Wintory got an indictment against Darren Goldin, who was accused of hiring a hit man to kill a fellow drug dealer named Kevin Estep in March 2000. Goldin, the triggerman and a third accomplice had already been convicted of another drug-deal hit in Maricopa County. Goldin was sentenced to 16 years in prison on his conviction of second-degree murder

Wintory changed jobs before the case went to trial, but he took it with him to the Arizona Attorney General's Office, where he worked out of the Tucson office. He sought the death penalty in the Pima County case.

Capital cases require that defense attorneys find mitigating evidence that may persuade a jury to spare the defendant's life. Goldin was adopted, so his defense team hired a "confidential intermediary" to track down Goldin's birth mother. She found the mother and got her to tentatively agree to cooperate in Goldin's case.

But then the intermediary got into a disagreement with the defense attorneys over their decision not to tell the birth mother that Goldin was in prison, according to the state Bar investigative file. The intermediary withdrew from the case, and shortly after, the birth mother decided that she did not want to cooperate after all. Then the intermediary called Wintory and left a message.

It is highly improper for prosecutors to have secret contact with members of the defense team. But Wintory called her back, at least eight times, according to the record, even after the judge in the case had told him to cease contact with her.

Wintory's supervisors questioned the number of calls between Wintory and the defense-team member, but Wintory was said to be evasive. He claimed he had not learned anything about defense strategy, but he did know that the birth mother had also been adopted and knew nothing about her own family history that could help in the case.

In May 2012, Wintory's superiors at the Attorney General's Office took him off the case. That August, the office withdrew its intent to seek the death penalty. With the case in a tailspin, Goldin was offered a plea agreement to second-degree murder and a prison sentence of 11 years, five years less than the presumptive sentence for that crime.

The Bar investigative file says the death notice was dropped primarily because of case law from another Arizona county, but that the "apparent misconduct" figured into the decision to offer a reduced sentence.

"Whatever I did or didn't do had no influence on the plea," Wintory told The Republic.

When Pima County Superior Court Judge Paul Tang accepted the plea, he noted the "apparent misconduct allegedly engaged in by the prosecutor." At Goldin's sentencing, Tang told the defendant how lucky he was to have reaped the benefit of Wintory's conduct; then Tang noted that he would report Wintory to the Arizona State Bar.

Earlier this month, the Bar filed its formal complaint against Wintory, charging him with violating three ethical rules: knowingly making a false statement of fact or law or failing to correct a false statement; engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; and engaging in conduct prejudicial to the administration of justice.

A Bar spokesman said a disciplinary hearing will be scheduled, unless Wintory reaches a settlement.

"I'm confident that if we get before a hearing panel and lay the facts out, they will see I had no intention to mislead anyone on this matter," Wintory said.

Slow-moving process

The disciplinary process is not rapid. It took seven years to disbar Ken Peasley, a Pima County prosecutor who was caught presenting testimony he knew to be false. Disbarment, however, is extreme, and Wintory could be punished with lesser sanctions, such as a suspension.

In 2004, Peasley was the first American prosecutor to be disbarred because of his conduct in a death-penalty case, according to the New Yorker magazine.

Arizona has had two more prosecutors disbarred for ethical violations since then. Former Maricopa County Attorney Andrew Thomas and one of his deputies, Lisa Aubuchon, were disbarred in April 2012 for filing criminal charges and a civil racketeering lawsuit against Superior Court judges and Maricopa County officials to further Thomas' political goals. Two other deputies received lesser sanctions for their participation in the affair.

"The only people that got anything out of his 'reign of error' were judges and supervisors," defense attorney Susan Corey said. Several of Thomas and Aubuchon's targets received vindication, and tidy court settlements.

Thomas and Aubuchon were not charged criminally for their actions, prosecutors are prosecuted even less frequently than they are disbarred, but it took three years for the system to rein them in and cost the county more than $5 million to settle lawsuits from judges and officials and millions more in legal fees.

"It's a culture that's set from the top," said Karen Clark, an ethics expert who prosecuted Peasley. "If you have a bad-apple prosecutor at the bottom, it's not tolerated. But when it comes from the top, it's rewarded."

During Peasley's tenure, there were two other Pima County prosecutors who came under scrutiny by the state Bar; one of them was suspended.

Maricopa County Attorney Bill Montgomery says he has beefed up prosecutor training to avoid misconduct and maintains an ethics committee to look into the actions of prosecutors, judges and defense attorneys alike.

"I'm trying to create an environment where prosecutors hold each other accountable," he said.

But Montgomery admitted he was not aware of many of the instances of misconduct or improprieties that are described over the course of this series, even those that occurred while he has been in office. That information rests with the middle-management supervisors, he said.

Montgomery has spent much time this year on statewide issues, lobbying against the medical-marijuana law passed by voters, for instance, and defending an Arizona abortion law found unconstitutional by the 9th U.S. Circuit Court of Appeals.

He said he does not weigh in on how prosecutors try their cases. "The attorneys are trying the case, I'm not going to step in," he said. "They're on their own."

And if they need to be put in their place, "that's the job of the judge. It's the job of the defense attorney to object," he said.

Minor sanctions

Even when prosecutors do get called before the Bar, most sanctions are minor.

Thomas Zawada, a contemporary of Peasley and a fellow prosecutorial superstar in the Pima County Attorney's Office, was disciplined in 2004 for misconduct during a murder trial 10 years earlier. According to an Arizona Supreme Court opinion, the state Bar inquiry into his conduct found that Zawada's “misconduct included (a) appeals to fear by the jury if (the defendant) was not convicted, (b) disrespect for and prejudice against mental health experts that led to harassment and insults during cross-examination, and (c) improper argument to the jury."

The Supreme Court justices thought that Zawada's behavior was so egregious that it threw out the murder conviction and attached double jeopardy so that the murder suspect could not be retried. As punishment, the state Bar hearing officer recommended that Zawada be censured, put on probation for six months and told to seek continuing education in dealing with psychological testimony. Instead, the high court suspended Zawada from practicing law for six months and one day, meaning that he would have to reapply to the Bar afterward. According to the state Bar website, Zawada has never been reinstated.

Deputy Maricopa County Attorney Ted Duffy was suspended from practicing law for 30 days in 2009 after being referred to the Bar by a Superior Court judge for repeatedly disobeying a judge's orders in a capital murder case to not mention evidence that had been precluded from trial, including the defendant's prior convictions. The trial ended in a hung jury, and the defendant was acquitted when Duffy took him back to trial.

But most findings of misconduct are not reported to the state Bar and have little or no consequence for the prosecutor involved.

Even when they make findings of prosecutorial misconduct, judges do not necessarily report the offenders to the Bar, which would then investigate the offenses in light of the state's rules of attorney ethics and determine whether to set to disciplinary hearings.

Jonathan Mena Cobian, who goes by the name Alex, was at his mother's house in Phoenix when a group of gang members came looking for his half-brother John Mitchell Mena to take him to task for trying to leave their gang. According to court filings, they asked Alex to step outside to help them with a car problem, then attacked him, and when Alex knocked one to the ground, they told him that they would come back to kill him.

Another brother had called 911; Alex talked to the dispatcher about the attack and the police officer who came to the house advised Alex that he would be within his rights to carry a firearm in case the gang members returned. Alex went to get his guns, picked up John at the mall and returned to their mother's house.

According to motions filed by Alex's defense attorneys, the gang members pulled into the driveway behind him. Alex told them to leave, and when they advanced on him and John, the brothers fatally shot two of them. Someone inside the home called 911 again.

Alex and John were charged with first-degree murder. Court records show that the prosecutor, Deputy County Attorney Eric Basta, did not want to turn over evidence of the victims' criminal past, a matter brought to the Arizona Court of Appeals. The case was remanded to the grand jury twice, and Superior Court Judge George Foster ordered Basta to play the potentially exculpatory 911 tapes for the grand jury. Basta had already been told to do so by another judge who had the case before Foster.

When Basta refused, Foster threw out the indictment. He wrote in his ruling that Basta had denied due process to the two defendants. "The court further finds prosecutorial  misconduct and that the appropriate remedy is dismissal without prejudice of the indictment as to both defendants," Foster wrote. Then he sealed the order from the public record.

When asked why he didn't refer Basta to the Bar, Foster told The Republic that he felt that dismissing the indictment was sanction enough.

Alex and John were subsequently reindicted on second-degree murder and aggravated assault charges, respectively, and their case is expected to go to trial this fall. misconduct

Bill Montgomery said he was not aware of the case or of the finding of misconduct. Basta declined a request for an interview.



Justices critical of Arias prosecutor's behavior in other cases

October 29, 2013

 Juan Martinez was Arizona Prosecutor of the Year in 1999, more than a decade before he became a media darling with his performance in the Jodi Arias murder trial.

This year, Martinez persuaded a jury to find Arias guilty of first-degree murder, but the jurors could not reach consensus on whether to sentence her to death or life, and Arias likely faces a new trial to make that decision.

Martinez helped send seven other killers to death row since he was hired by the Maricopa County Attorney's Office in 1988.

He was accused by defense attorneys of prosecutorial misconduct in all but one of those cases. The Arizona Supreme Court characterized his actions as constituting misconduct in one of them and cited numerous instances of "improper" behavior in another, but neither rose to the level where the justices felt they needed to overturn the cases. Allegations of misconduct by Martinez in the second case and at least two others are pending in state and federal courts.

It is not uncommon for defense attorneys to allege misconduct against prosecutors. A study by The Arizona Republic determined that it has been alleged in about half of all death-penalty cases since 2002 and validated in nearly one-quarter of them.

But it is rare for Supreme Court justices to call out a prosecutor’s conduct in open court.

One day in mid-2010, the Arizona Supreme Court was on the bench as lawyers presented arguments during the direct appeal of a first-degree murder conviction and death sentence for a man named Mike Gallardo, who killed a teenager during a Phoenix burglary in 2005.

Transcripts show that Justice Andrew Hurwitz turned to the attorney representing the Arizona Attorney General's Office, the prosecutorial agency that handles death-penalty appeals.

"Can I ask you a question about something that nobody's discussed so far?" he asked. "The conduct of the trial prosecutor. It seems to me that at least on several occasions, and by and large the objections were sustained, that the trial prosecutor either ignored rulings by the trial judge or asked questions that the trial judges once ruled improper and then rephrased the question in another improper way. ... Short of reversing a conviction, how is it that we can ... stop inappropriate conduct?"

The assistant attorney general struggled to answer.

Justice Michael Ryan then stepped into the discussion.

"Well, this prosecutor I recollect from several cases," Ryan said. "This same prosecutor has been accused of fairly serious misconduct, but ultimately, we decided it did not rise to the level of requiring a reversal," Ryan said. "There's something about this prosecutor, Mr. Martinez."

There had been multiple allegations of prosecutorial misconduct against Martinez in Gallardo's appeal. Ultimately, in its written opinion, the court determined that Martinez had repeatedly made improper statements about the defendant. During the oral argument before the Supreme Court, the justices fixed on a question that Martinez asked three times, even though the trial judge in the case had sustained a defense attorney's objections to the question.

But, in the end, the justices ruled that Martinez's behavior still did not "suggest pervasive prosecutorial misconduct that deprived (the defendant) of a fair trial."

And, as the justices noted, it was not the first time that Martinez had walked away unscathed.

"It's his MO," Deputy Maricopa County Public Defender Tennie Martin said when asked about trying cases against Martinez. "He's kind of Teflon."

Retired county Superior Court Judge Kenneth Fields, himself a former federal prosecutor, said, "You're at war, almost nuclear war, the minute you come up against him."

Fields was one of several judges who sued Maricopa County and received settlements after being falsely targeted by the anti-corruption crusade of disbarred former County Attorney Andrew Thomas and Sheriff Joe Arpaio.

Martinez declined to talk to The Republic for this story. The County Attorney's Office refused to turn over his personnel file despite a request made by The Republic under the state's public-records law. The office said the denial was "due to the best interests of justice."

The National District Attorneys Association honored Martinez with its "Home Run Hitter Award for Outstanding Prosecution" for 2013 because of the Arias murder trial and conviction.

The general public loved the trial, but Martinez's live-streamed aggression in the courtroom, his pacing and arm-waving, his constant sarcasm raised concerns among legal pundits. Arias' defense attorneys filed numerous motions for mistrial alleging prosecutorial misconduct. All were denied by the judge.

County Attorney Bill Montgomery denounced the circus atmosphere in the courtroom, though he did not criticize his prosecutor.

"I do not believe the coverage of that trial furthered the understanding of the criminal-justice process," Montgomery said. "I had no idea it was going to turn out like that."

More allegations

Not counting the allegations of misconduct during the Arias trial this spring, Martinez has been called out in at least two other cases this year.

The defense attorney in the Richard Chrisman trial, which ended in a hung jury on two counts last month, filed motions in January to protest Martinez's failure to disclose an expert witness whom Martinez had retained a year and a half earlier. The judge ordered that the defense attorney be allowed to interview the tentative witness.

Then, during the penalty stage of the trial, the defense attorney asked for a mistrial on the grounds of misconduct because he thought Martinez was trying to shift the burden of proof from the state to the defendant. The judge called it "close to the line of burden shifting" but let the trial go on.

Earlier this year, another attorney referred Martinez to the State Bar of Arizona after a dispute over whether he and the defense attorney had reached an agreement on preliminary court actions and for failing to file a pretrial statement.

According to state Bar investigative files, Martinez denied there had been an agreement but acknowledged he "unknowingly failed to comply" with the deadline for the pretrial statement. The Bar closed the case in June; it did not sanction Martinez, but sent him an "instructional comment" on filing documents "in a timely manner."

Misconduct has to be "pervasive" for a judge to throw out a case or for the Supreme Court to throw out a conviction. It is rare for a prosecutor to be sanctioned by the court or disciplined on ethical grounds by the state Bar.

A study by The Arizona Republic found that improper behavior by prosecutors was alleged in half of all death penalties reviewed by the Arizona Supreme Court since 2002. The high court found that prosecutorial impropriety or outright misconduct had indeed occurred in nearly half of those allegations, but only twice found that it rose to a level where the conviction was overturned.

But other instances of misconduct do not appear among those numbers because the misconduct caused a mistrial or encouraged prosecutors to offer a plea deal to a lesser sentence to avoid mistrial.

Former Deputy Maricopa County Attorney Noel Levy, who was Arizona Prosecutor of the Year in 1990, was never sanctioned, even though he helped put Debra Milke on death row that year based on a questionable confession. He and law enforcement were successful in blocking the defense attorney's attempt to impeach the detective who said Milke confessed.

And then two years later, Levy helped put an innocent man on death row, as well. Ray Krone spent 10 years in prison before he was exonerated by DNA. Milke's conviction and death sentence were overturned in March of this year. Courts acknowledged prosecutorial lapses in both cases and overturned the verdicts and sentences.

Montgomery also refused to divulge Levy's personnel file "due to the best interests of justice."

Levy told The Republic: "I just did my job, and I did it ethically. I'm fully aware of my ethical obligation to present evidence. It's up to the jury to make a decision."

Tactics challenged

Sex and outrage often figure prominently in Martinez's cases.

In 2004, Martinez persuaded a jury to send Wendi Andriano to death row for murdering her husband in an especially cruel manner. She poisoned him, and when that didn't work fast enough, she stabbed and beat him to death.

Like Arias, Andriano claimed to be a victim of domestic abuse. On appeal, Andriano's defense team argued that Martinez had unfairly prejudiced the jury because "he took every opportunity to infuse the trial with marginally relevant information about Andriano's partying and man-chasing."

The Arizona Supreme Court pushed away the allegation, saying that closing arguments are not evidence and that the jury would have known that because it had been so instructed.

During a second-degree- murder trial in 2005, Martinez accused the defendant of covering up prior crimes that the judge had ordered withheld from the jury. Martinez revealed them anyway, which the Arizona Court of Appeals deemed improper. Then, during his rebuttal, Martinez repeatedly compared the defense attorney, who is Jewish, to Adolf Hitler and his "big lie."

The trial judge told the jury to disregard the remarks but did not grant a defense request for a mistrial. The Appeals Court called the analogy "reprehensible" but did not overturn the case because, "In recognition of the frequently emotional nature and sometimes rough and tumble quality of closing argument, attorneys, including prosecutors, are allowed wide latitude in their arguments to the jury."

Also in 2005, Martinez obtained convictions and death sentences against Cory Morris, who killed five prostitutes in 2002 and 2003 and dumped their decomposing bodies in alleys. Martinez told the jury that Morris took them to the camper bus he parked behind his aunt's house in the Garfield neighborhood of central Phoenix, strangled them during sex, and then continued to have sex with their bodies until they rotted and fell apart.

On appeal, Morris' lawyers noted that Martinez and not the medical examiner had decided that Morris engaged in necrophilia. Once again, the Supreme Court justices wrote that prosecutors have "wide latitude."

"While the evidence in this case does not compel the conclusion that Morris engaged in intercourse with the corpses of the victims, the record includes sufficient evidence to permit the prosecutor to make such an argument," the justices wrote when affirming Morris' death sentences. Furthermore, they pointed out, Morris' trial attorney had not objected to the allegations during trial.

The high court did disapprove of Martinez singling out jurors in comments during his arguments, drawing comparisons to Morris and his victims, which it deemed misconduct.

It found Martinez to have been inappropriate when at one point he took a jacket worn by one of the dead out of a plastic evidence bag for the jury's "smelling pleasure." The jacket filled the jury area with the smell of decomposition, but the justices said: "This single remark did not deprive Morris of a fair trial."

Morris' convictions and death sentences were upheld, but the allegations of necrophilia are being debated in Morris' ongoing appeals. In its filings, the state reiterates the words of the Supreme Court that Martinez had "wide latitude" to deduce necrophilia from the facts at hand; the appeals judge felt there was room for argument and set an evidentiary hearing.

'Everything ... is attack'

In 2009, Martinez tried Douglas Grant, who had been charged with first-degree murder in the drowning of his wife, Faylene. It was another bizarre case.

Grant, a dietitian who worked with the Phoenix Suns, had divorced Faylene and was dating at least two other women. Faylene, who was a self-described Mormon mystic, asked Grant to repent and remarry her because she had visions that she would soon die and she needed to have a husband to be admitted into heaven.

She also selected one of Grant's interim girlfriends as a suitable mother to raise their children after her death, and she encouraged Grant to marry the woman when she was gone. Faylene wrote numerous letters to friends and relatives about her anticipated demise and filled her journals with her thoughts.

On Sept. 24, 2001, while on a second honeymoon with Grant to a sacred Mormon site in Utah, Faylene fell from a cliff. Her visions told her that would be the day she died, but instead, she survived with injuries that were painful but not life-threatening. A relative sent to Grant's house shortly afterward found many of Faylene's prized possessions laid out and tagged with Post-it notes telling who she wanted to have them after her death. Two days later, Faylene drowned in a bathtub while impaired by pain medication and sleeping pills. At first, the death was ruled an accident; then, four years later, Grant was arrested and charged with murder.

Grant was represented by Mel McDonald, a former Superior Court judge and a former U.S. attorney for the District of Arizona.

The prosecutorial high jinks, which McDonald chronicled in motions, began in the pretrial stage. Martinez had to be compelled to turn over Faylene's letters and journals in which she happily proclaimed that she would soon die and go to heaven.

The court record shows that Martinez avowed that he had turned over all farewell letters from Faylene when he hadn't. Martinez also denied having tape recordings of interviews with certain witnesses, though they eventually materialized. The judge ordered that the materials be turned over and threatened to dismiss the case "on the basis of ongoing discovery issues."

In pretrial hearings, Martinez grilled Grant's new wife and another former girlfriend about intimate details of their sex lives, down to whether they wore thong underwear or had performed oral sex in cars.

During his opening statements in the 2008-09 trial, Martinez claimed that Grant had lifted Faylene while she was unconscious and had placed her in the bathtub to drown her. In his closing arguments, he said Grant had her kneeling at the side of the tub and pushed her head underwater. He feigned surprise when a witness on the stand came up with a story of which McDonald had not been informed.

The courtroom interaction was vicious.

"Everything he does is attack," McDonald said. "There's a time to attack, but you don't attack every witness on every point, every time. I couldn't even ask a question without him objecting."

Grant was portrayed throughout the trial as a sex-obsessed Lothario, and the jury told the media afterward that they had convicted him because he was a "scuzzbag."

Martinez did not get a first-degree-murder conviction, however. The jury found Grant guilty of manslaughter, and the judge sentenced him to only five years in prison. McDonald said he did not file appeals alleging misconduct to avoid the risk that Grant might be awarded a new trial and then be found guilty of a more serious murder charge.

"If you go in on a Murder 1 and walk out with only five years in prison, you would have to be brain dead to file an appeal," he said.

Contentious Arias trial

The Jodi Arias trial won Martinez international attention, but, like other trials, it has been rife with allegations of misconduct.

Arias' attorneys filed numerous motions to protest Martinez's actions, not just in trial but in the years of discovery and evidentiary hearings between the 2008 murder and the 2013 trial.

The two judges who handled the case over those four years repeatedly ordered Martinez to produce e-mails, photographs and social-media posts that fueled the salacious case.

Martinez would repeatedly deny such materials existed. A month before the jury was picked, he was still fighting with defense attorneys over the whereabouts and contents of victim Travis Alexander's computer.

When Arias' defense attorneys asked for more time to study the thousands of images in its drives, Martinez objected, saying that the defense had already had four years in which to analyze the computer.

Arias admitted that she killed Alexander and claimed that she shot him after he attacked her. For four years, police and prosecution maintained that Arias first shot Alexander and then stabbed him and slit his throat. But days before jury selection, Martinez changed the facts of the case, saying that Arias had shot Alexander last instead of first. Arias' attorneys, Kirk Nurmi and Jennifer Willmott, protested that the rationale for seeking the death penalty had been based on the first theory.

They filed a motion for mistrial alleging prosecutorial misconduct when Martinez appeared on television, signing autographs and posing for photos with fans.

Martinez verbally attacked Arias and her witnesses. He painted Arias as a sexual predator. He asked compound questions and then accused witnesses of being non-responsive when they would not answer yes or no.

"I would not have let the cross-examinations go on for that long," said Fields, the retired judge. "It was just badgering and bullying the witnesses in an attempt to ruin their credibility. It crossed the line."

As video and transcripts later showed, many of the trial's most contentious moments took place in the judge's chambers or at the bench, out of earshot of the rest of the courtroom and the cameras. Etiquette is a given during court proceedings. Martinez was frequently insulting.

The first question he posed to Arias during cross-examination set the tone, when he displayed a photograph to the courtroom and described it to her as a "picture of you and your dumb sister."

One day at the bench, as the attorneys debated whether to admit a statement about whether Alexander wanted to kill himself, transcripts show Martinez said, "But the thing is that if Ms. Willmott and I were married, I certainly would say, 'I f---ing want to kill myself.'"

Willmott objected, and two days later at another bench conference, Martinez said to Willmott, "Well, then, maybe you ought to go back to law school."

Nurmi asked Judge Sherry Stephens to step in, but she did not.

"In my view, that would have been a fine," Fields said. "I probably would have reported him to the Bar. It shows his bias. It's just inappropriate."

But it didn't matter. Martinez became a rock star. He got the conviction. Whether he ultimately gets a death sentence for Arias remains to be seen.

"All the young prosecutors want to be like Juan Martinez now," said Alan Tavassoli, an attorney with the Maricopa County Public Defender's Office. "He's a role model. And so was Noel Levy."



Clearer definition of misconduct, strong judicial oversight are key

October 30, 2013
For three days, The Arizona Republic has examined prosecutor conduct and misconduct, citing cases in which prosecutors stepped over the line without suffering consequences to themselves or the convictions they win.

The question remains: What can be done about it?

Options already are in place.

When a prosecutor steps over the line, it's up to the defense attorney to call it to the court's attention, and it's up to the judge to decide whether an offense has been committed and whether it affects the defendant's right to a fair trial.

Yet neither likes to do so.

Prosecutors are arguably the most powerful people in the courtroom: They file the charges and offer the plea agreements. They determine whether to seek the death penalty, and, given mandatory sentencing, predetermine the consequence of a guilty verdict.

Defense attorneys worry that if they cross a prosecutor, future clients could be treated more harshly the next time they face that prosecutor in court. Judges worry about prosecutors who use court rules to bypass those judges who rein them in. Both know that prosecutors are rarely sanctioned by the court or investigated by the State Bar of Arizona for ethical misconduct.

So, overly aggressive prosecutors continue to have their way in the courtroom, as long as they win cases, experts say.

"It comes from this 'end-justifies-the-means mentality,'" said Jon Sands, federal public defender for Arizona. "We'll do anything we can to bring someone to justice."

What is ' misconduct'?

Part of the problem of reining in prosecutorial misconduct is defining it.

When a defense attorney does something wrong while defending a criminal client, it's called "ineffective assistance of counsel."

When a judge does something wrong, it's called "judicial error."

But when it's the prosecutor who is under scrutiny, it's called "prosecutorial misconduct." It's a fuzzy concept rooted more in constitutional law than in rules of professional conduct: A "term of art," according to the American Bar Association.

But what constitutes misconduct depends on a judge's ruling. Even then, such rulings tend to blur the distinction among what is improper, "inartfully stated," bad judgment or outright.

"The vast, vast majority of prosecutorial-misconduct claims go to inadvertent slip-ups rather than calculated interference with the wheels of justice," said Judge Peter Swann of the Arizona Court of Appeals.

It's a view shared by defense attorneys and prosecutors, as well. In 2009, the American Bar Association recommended that states amend their rules of court procedure to create a new term of “prosecutor error" to force judges to determine the intent of the prosecutor.

"Prosecutors are human and will make mistakes," said Yavapai County Attorney Sheila Polk, who is president of the Arizona Prosecuting Attorneys Advisory Committee. "The judge needs to address it at the time, especially for a less experienced attorney.

"However, if an experienced attorney is playing with the rules and the judge knows it is deliberate (or has seen it before), then the court needs to address it. ... It simply cannot go unaddressed. That goes for defense attorneys as well as prosecutors."

Judges make a difference

When an allegation of misconduct is made before or during a trial, judges have to think long and hard about whether to dismiss a case or sanction a prosecutor.

That is the question facing Maricopa County Superior Court Judge Sally Duncan in the case of Jeffrey Martinson.

Martinson was found guilty of murdering his 5-year-old son. But in March 2012, before the jury could decide whether to impose the death penalty, his attorneys, Treasure VanDreumel and Mike Terribile, uncovered juror misconduct, and Duncan declared a mistrial.

Deputy County Attorney Frankie Grimsman then filed multiple motions to have the judge and the defense team removed from the case, all of which were denied by Duncan and by the court's then-presiding criminal judge, Douglas Rayes.

Grimsman also tried to dismiss the original indictment and re-indict Martinson, this time without a notice to seek the death penalty, which intentionally or coincidentally, would result in a new judge and defense team. In the original indictment, Martinson had been charged with felony murder, meaning the child died during the commission of another crime, namely child abuse. Grimsman was now alleging premeditated murder.

Duncan refused to dismiss the original indictment and pointed out in a ruling that through the first trial, Grimsman had said that she did not have evidence to charge Martinson with premeditation but had argued it anyway.

"The court further finds that the state either deliberately disregarded the court's rulings or acted in a willfully blind manner," Duncan ruled in October 2012.

Grimsman appealed Duncan's ruling in the Martinson case to the Arizona Court of Appeals for her right to dismiss the original indictment and won, sort of. The Court of Appeals reversed Duncan's ruling but gave Duncan the option to determine whether the state attempted to dismiss the indictment improperly.

"The State has done nothing improper in seeking to re-indict this case," Grimsman and another deputy county attorney wrote in a response to Terribile and VanDreumel's motion to dismiss the charges, alleging bad faith. "Defendant has made numerous spurious assertions which have no basis in fact or reality."

Terribile and VanDreumel then filed a motion to dismiss the case altogether, alleging prosecutorial misconduct for charging Martinson with felony murder and then trying him for premeditated murder. They argued the motion case to Duncan on Oct. 3.

Duncan took the case under advisement and, as of this writing, still has not ruled.

The County Attorney's Office declined to comment on the case because it is ongoing.

What can be done?

Karen Clark, a private attorney, not only defends lawyers against state Bar complaints, she prosecutes for alleged ethical lapses that could lead to disbarment. Clark, for example, prosecuted Deputy Pima County Attorney Ken Peasley, who was disbarred in 2004 for encouraging perjury during capital-murder trials.

She says systems are in place to control courtroom conduct without putting bad guys back on the street.

"We are a self-regulating profession. ... Just because the other (checks and balances) aren't working doesn't mean you have to overturn convictions," Clark said. "You get the other wheels working."

Maricopa County Attorney Bill Montgomery said that he is "trying to create an environment where prosecutors hold each other accountable."

Montgomery told The Republic that his office's ethics committee, which historically has filed complaints against defense attorneys and judges, now also considers prosecutor ethics.

But Montgomery's office has not responded to a request for details about the committee made July 30 under the state's public-records laws.

The request asked for the names of the people on the ethics committee and a list of judges, prosecutors and defense attorneys referred to the office ethics committee and a list of those whom the ethics committee referred to the state Bar.

Polk said there is communication in Yavapai County among judges, prosecutors and public defenders to identify bad actors before they cause damage.

But for a defense attorney to make a referral puts him or her in the crosshairs, according to David Euchner, president of Arizona Attorneys for Criminal Justice and an assistant public defender in Pima County.

"They're afraid of the blowback they'll get," Euchner said.

To combat the threat of reprisal, his organization of defense attorneys has recently created a panel to gather information and file Bar complaints against rogue prosecutors. It is intended to mirror the ethics committee of the Maricopa County Attorney's Office.

"That's why we decided to put together our own panel to give attorneys a cover," Euchner said. "So that a statewide association files the complaint, not the individual attorney."

Judges worry about "blowback," as well.

"Once the prosecutors gained the ability to use charging decisions to shape sentences (due to mandatory sentencing), it was a huge power shift," said Swann, the Appeals Court judge. "The Legislature empowers the prosecutors and defangs the judges."

Of the approximately 40,000 felony cases filed each year in Maricopa County, most end in plea agreements. Only 2 percent go to trial, and most of those result in guilty verdicts. So, by filing charges or offering plea agreements, the prosecutor is, in effect, also deciding the punishment.

Swann also took issue with prosecutors' ability to make a "peremptory strike" against a judge they don't want to appear before because of that judge's courtroom practices. They are allowed one such strike without having to say why, and they use it to try to gain a tactical advantage in a case. If they want to strike a second judge, they must show cause.

"When judges who take steps to manage their courtrooms are subject to peremptory strikes, it diminishes their control over the courtroom. And it can serve to chill the bench," Swann said.

Defense, prosecution and judges all agree that the final word on defining and curbing prosecutorial misconduct rests with judges.

"The bottom line, judges must report conduct," Polk said. "To sit from afar and paint a broad brush against prosecutors does absolutely nothing to help us all achieve our high standards of justice and due process."

Swann agreed.

"When a judge thinks a lawyer's conduct is questionable, the lawyer should be referred," he said.


Ariz. prosecutors must now reveal evidence of convicts' innocence

November 15, 2013
If Arizona prosecutors find evidence that shows a convicted person may actually be innocent, they must turn it over to the convict's defense attorneys, according to a new rule for lawyers enacted Thursday by the Arizona Supreme Court.

And if the prosecutors find "clear and convincing evidence" that a defendant is not guilty, according to the amended rule, they must take steps to have the conviction reversed.

The rule was approved over the objection of state prosecutors, who say it is unnecessary.

Maricopa County Attorney Bill Montgomery, one of the prosecutors who opposed the change, declined to comment for The Arizona Republic. The objection to the proposal filed under his name last month said that "we have no real-world examples of prosecutors discovering evidence of the nature that would trigger a duty under this rule."

"Prosecutors in Arizona already fully embrace their roles as ministers of justice when (it) comes to righting wrongful convictions," the filing said.

The objection cited the fact that Montgomery's office recently filed motions to drop charges against people who pleaded guilty to "huffing," that is, intentionally inhaling toxic vapors to get high, when it was discovered that the office had misinterpreted the law.

However, at least one case contests the notion that prosecutors always turn over such exculpatory evidence.

In 1999, a man named Henry Hall was sent to death row for the murder of Ted Lindberry, based largely on the testimony of a jailhouse informant who claimed that Hall had described to him how he had smashed Lindberry's skull and dumped his body in the desert east of Phoenix. The body had not yet been found when Hall was sentenced to death.

But by the time Hall's conviction and sentence were overturned by the Arizona Supreme Court because of juror misconduct in 2001, Lindberry's skeletal remains had been located in the desert west of Phoenix. His skull was not caved in.

The remains were released to Lindberry's family and cremated. Hall's defense attorneys did not learn about the new exculpatory evidence until approximately a year after the remains had been destroyed, according to court documents.

The informant had since died. But Maricopa County prosecutors wanted to use the informant's testimony in Hall's retrial.

Superior Court Judge Roland Steinle refused to allow the testimony because it was proved to be false and because the informant could not be challenged because he was dead. And as a sanction for not disclosing the discovery of the skeletal remains, Steinle agreed to allow the defense attorneys to inform the jury of the lapse.

The prosecutors took the case to the Arizona Court of Appeals, still planning to use the false informant testimony.

In 2011, the appellate court denied the appeal (as well as a request by the defense to throw out the case for prosecutorial misconduct). Prosecutors allowed Hall to plead to second-degree murder and a prison sentence of 16 years; he had already served more than 13.

Montgomery also declined to comment on the Hall case.

If the new amendment, known as Rule 3.8, had been in effect at the time of Hall's conviction, it would have made the prosecutor's duty obvious, though it would not have guaranteed that Hall's first-degree conviction would have been overturned.

The amended Rule 3.8 to the Arizona Rules of Professional Conduct is modeled on rules suggested by the American Bar Association in 2008.

The text of the amendment says, "When a prosecutor knows of new, credible, and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall:

"(1) promptly disclose that evidence to the court in which the defendant was convicted and to the corresponding prosecutorial authority, and to defendant's counsel. ...

"(2) if the judgment of conviction was entered by a court in which the prosecutor exercises prosecutorial authority, make reasonable efforts to inquire into the matter or to refer the matter to the appropriate law enforcement or prosecutorial agency for its investigation into the matter."

The amendment goes on to say that when a prosecutor learns that a defendant is not guilty, "the prosecutor shall take appropriate steps, including giving notice to the victim, to set aside the conviction."

Defense attorney Larry Hammond, one of the petitioners who proposed the amendment in 2011, called it "an important step forward to make as sure as we can that there are no people who are not guilty who remain in our prison."

But the state's prosecutors tried to dissuade the Supreme Court from making the amendment.

Pima County Attorney Barbara LaWall wrote in her comments filed with the Supreme Court that she could not order law enforcement to conduct investigations into new evidence and worried that the rule would force prosecutors to investigate the numerous claims of innocence by the state's prison populations.

LaWall did not respond to a request for comment.

The comments by Montgomery's office, filed by Chief Deputy County Attorney Mark Faull, called the investigations "unfunded mandates" and said, "The rule will subject honest, hard-working prosecutors to unnecessary Bar complaints where the burden will be on the prosecutor to prove that his or her action or inaction was 'in good faith.'"

Yavapai County Attorney Sheila Polk, representing the Arizona Prosecuting Attorneys' Advisory Council, called the changes "unnecessary, confusing, impractical, and a solution in search of a problem" in her filings with the high court.

She wrote that prosecutors could not be ordered to do investigations and noted that some counties do not have a public defender's office to contact, as required in the amendment.

Polk also did not respond to a request for comment.

The Supreme Court and Chief Justice Rebecca White Berch disagreed with the prosecutors.

The amendment "highlights the special duty of prosecutors to act as ministers of justice and not as advocates who seek to obtain convictions at all costs," Berch said in an e-mail to The Republic.

She added: "It requires affirmative steps to be taken when it appears that a defendant might have been wrongfully convicted.

"Prosecutors represent all citizens, and therefore they (like judges) are held to higher standard and should help remedy any errors that result from our sometimes imperfect system of justice."


Man held in son's '04 death ordered freed

Judge cites prosecutorial misconduct in dismissing first-degree murder case

November 20, 2013

Whether Jeffrey Martinson killed his 5-year-old son, Josh, in 2004 may never be determined in a court of law because of prosecutor misconduct in trying his case.

On Tuesday, a Maricopa County Superior Court judge dismissed the first-degree murder indictment against Martinson with prejudice, meaning that Martinson cannot be retried for murder because of the theory of double jeopardy.

Judge Sally Duncan ordered that Martinson be released from jail at noon on Nov.26. She described the prosecutors' actions as "a win-by-any-means strategy."

The Maricopa County Attorney's Office has options to appeal.

"We will review the Judge's allegations as well as refer the record of the proceedings to our Ethics Committee and Appellate section for review," County Attorney Bill Montgomery said in an e-mail to The Arizona Republic. "We will also review the conduct of defense counsel and that of the Judge for appropriate action."

Duncan wrote a 28-page ruling detailing the conduct by the prosecution team, led by Deputy Maricopa County Attorney Frankie Grimsman.

"When viewing the totality of circumstances, the Court finds that during trial the Prosecutors engaged in a pattern and practice of misconduct designed to secure a conviction without regard to the likelihood of reversal," Duncan wrote.

Duncan then detailed the misconduct. The prosecutors had charged Martinson with felony murder, specifically saying that Martinson's son, Josh, died because of child abuse, and then tried the case as if he were charged with intentional, premeditated murder. Grimsman had been warned by Duncan several times over the course of the trial not to do so.

After the conviction was thrown out because of improper testimony from a medical examiner and juror misconduct, Duncan wrote, Grimsman tried to re-indict Martinson for premeditated murder. She then repeatedly tried to get Duncan and the defense attorneys, Michael Terribile and Treasure VanDreumel, removed from the case.

"Accordingly, the prosecutors relentlessly sought to remove defense counsel and the assigned judicial officer specifically to avoid the risk of acquittal during any trial," Duncan wrote.

Criminal cases, especially homicides, are rarely overturned because of misconduct, even in appellate courts. A recent investigation by The Republic found that only two of 82 death sentences in Arizona since 2002 had been overturned on appeal because of prosecutors' actions.

Verdicts are even less frequently overturned with prejudice by a trial court judge.

"I am pleased that judges at the trial-court level are giving credence to allegations of prosecutorial misconduct," VanDreumel said. "Often, it's a paper tiger and they prefer the decision to be made at the appellate level."

Martinson, 47, has been in jail for nine years awaiting a final verdict.

On the night the child died in 2004, Martinson was in a custody battle with his ex-wife. Martinson claimed he found the boy floating in the bathtub and could not resuscitate him. Then, Martinson claimed, in his anguish, he tried to kill himself but failed.

An autopsy showed the boy had muscle relaxants in his bloodstream, and the medical examiner ruled Josh died of a drug overdose.

It appeared to be a murder-suicide, but Martinson was not charged with first-degree premeditated murder, but rather with first-degree felony murder, meaning prosecutors wanted to prove that Josh died during child abuse by Martinson.

Terribile and VanDreumel argued that the death was consistent with drowning and that there was DNA on the bottle of muscle-relaxant tablets that could not be identified but could not be eliminated as coming from the boy. The defense maintained the boy may have taken the tablets himself, and Terribile pointed out that the pills resembled candy.

After several years of changing defense attorneys, Martinson went to trial in July 2011.

Martinson was found guilty in November 2011, and the jury determined there were aggravating factors that made him eligible for the death penalty. But before the jury could sentence Martinson, a juror came forward to tell Terribile and VanDreumel about what was going on in the jury room. The forewoman was accused of browbeating other jurors into finding Martinson guilty. The guilty verdict was thrown out in March 2012.

In fall 2012, Grimsman told the judge that the original indictment and the intent to seek the death penalty had been dropped and that she had asked that another judge and defense team be appointed. Terribile and VanDreumel fought the new charge.

In late 2012, the Arizona Court of Appeals ruled that Grimsman could indeed re-indict Martinson, unless Duncan found that Grimsman had done so in bad faith.

On Tuesday, Duncan made that finding, in addition to the finding of prosecutorial misconduct.

Defending the case had cost taxpayers $2.97 million as of last July, nearly twice the amount paid for the defense of Jodi Arias.

Prosecutor agrees to 90-day suspension

Rebuke for murder-case misconduct is rare sanction

February 19, 2014

Deputy Pinal County Attorney Richard Wintory has agreed to a 90-day suspension from practicing law because of his conduct during a capital- murder case in 2011 while he was an assistant Arizona attorney general.

In that case, Wintory had several inappropriate telephone communications with a confidential intermediary hired by defense attorneys, according to a signed consent agreement between Wintory and the State Bar of Arizona that was filed Friday with the presiding disciplinary judge of the Arizona Supreme Court.

Wintory also did not reveal to the court, the defense attorney or his own supervisors the number of conversations he had with the intermediary.

Wintory, who was Arizona Prosecutor of the Year in 2007, is now chief deputy to Pinal County Attorney Lando Voyles.

In the consent agreement, Wintory "conditionally admits" that he violated the state's Rules of Professional Conduct for attorneys, specifically a rule under the heading of "misconduct" that he engaged "in conduct that is prejudicial to the administration of justice."

Prosecutors are rarely disciplined for misconduct. Wintory entered the agreement rather than face a disciplinary hearing.

The consent agreement notes that "had this matter proceeded to hearing rather than being resolved by consent agreement, the State Bar would have contended that (Wintory) knowingly engaged in dishonest conduct. (Wintory) would have contended that, while negligent, he acted in good faith and had no intention to be dishonest or to deceive the court of his colleagues."

The agreement needs to be approved by the judge.

Wintory was a prosecutor for 20 years in Oklahoma and had a history of allegations of prosecutorial misconduct in death-penalty cases there before he moved to the Pima County Attorney's Office.

In 2010, he took a case against Darren Goldin, who was accused of hiring a hit man to kill a rival drug dealer 10 years earlier. Goldin had already been convicted of second-degree murder for a similar killing in Maricopa County.

Wintory was going for the death penalty against Goldin in the Pima County case. Wintory took the case with him when he moved to the Tucson office of the Arizona attorney general.

Goldin was adopted, and in order to find information about Goldin's family history that might mitigate a potential death sentence, his defense attorney hired a confidential intermediary to locate Goldin's mother.

The intermediary had a falling out with the defense attorney and, in August 2011, contacted Wintory to help her get legal representation so that she could sue the defense attorney.

Wintory spoke to the intermediary several times over the next few weeks, and in an Aug.22, 2011, hearing, he admitted as much. The defense attorney and judge both noted that the contact was inappropriate.

But the intermediary called Wintory again, and he appeared to be evasive when his supervisors questioned him about how many times he had talked to her.

He was taken off the case, which was subsequently pleaded to second-degree murder.

Goldin was sentenced to 11years in prison, a light sentence the judge noted was due in part to "the apparent misconduct allegedly engaged in by the prior prosecutor in this matter."

Wintory and the intermediary denied that anything confidential had been exchanged.

Wintory moved on to serve under Voyles in Pinal County.

In a statement on Tuesday, Voyles said, "I hold sacred the ethical obligations of attorneys. In fact, the entire criminal-justice system depends on the public trust of the institution and our responsibilities as attorneys to abide by the laws and professional rules governing our work. ...

"Richard fully cooperated with the Bar throughout their investigation, and we look forward to the conclusion of this matter."