A federal appeals court upheld a highly publicized Arizona triple murder conviction Friday even though the prosecutor was disbarred for eliciting false testimony by a police investigator and use of a dubious informant.
The 9th U.S. Circuit Court of Appeals, in a 2-1 vote, rejected a habeas petition by Martin Fong Soto challenging his convictions for murder, robbery and attempted robbery.
Fong was tried separately from two co-defendants, Christopher McCrimmon and Andre Minnitt. McCrimmon was acquitted after his second trial and Minnitt’s convictions were vacated after three trials once the prosecutor was found to have knowingly elicited false testimony from a Tucson police detective.
But Fong has served more than 20 years of a 75 year sentence for the murders.
The prosecutor was later disbarred for his misconduct, the majority said.
There was little direct evidence to link Fong, McCrimmon and Minnitt to the crime. McCrimmon’s fingerprints were found on the getaway car. Fong’s fingerprints were at the scene of the robbery.
Fong was convicted in the 1992 shootings of three employees of the el Grande Market in Tucson and $175 stolen. Shortly after the shootings, police found an abandoned car a few blocks away with McCrimmon’s fingerprint on a window. Some food stamps and a bag with lemons and a cucumber were found on the counter and they had Fong’s fingerprints.
Keith Woods, who was arrested on a drug charge and faced a potential 25 years in prison, agreed to act as an informant in exchange for dismissal of the drug case. The homicide detective in the case, Joseph Godoy, had unrecorded conversations with Woods for 45 minutes and then taped a conversation in which Woods told police that McCrimmon and Minnitt had confessed to him and identified a third person as Cha-Chi as part of the crime. The Chachi was believed to be Fong, who had previously worked at the market.
It was later determined that the prosecutor in the case, Kenneth Peasley, used false testimony from Godoy at trial to bolster the reliability of the informant, according to the court. Godoy lied about when he first learned the names of the suspects, the opinion states.
The majority held that the Arizona courts did not engage in an unreasonable determination of the facts or unreasonable application of federal law in denying Fong’s prosecutorial misconduct claim.
In dissent, Judge Mary Schroeder called this a “troubling” case, pointing out that there were no eyewitnesses and the police informant had just been released from prison and faced return.
There was little evidence linking the three defendants, she said.
And it was Fong’s own defense attorney who called the informant Wood to testify in hopes of limiting his identifications to Minnitt and McCrimmon.
“The cherry-picking attempt failed,” Schroeder said. While it is possible Fong would have been convicted without Woods testimony, “his own lawyer put the nail in his coffin,” she said.
“Because the jury convicted Fong after a trial marked by perjury and incompetence, I conclude that Fong did not receive a fair trial,” she said. She would order a new trial.
The majority opinion was written by visiting Judge Robert Timlin of the Los Angeles federal court and joined by Judge Jay Bybee.
With a split vote by the two members of the 9th Circuit, it increases the odds that this case might receive en banc reconsideration should Fong seek rehearing by the full court.
Case: Fong Soto v. Ryan, No. 11-17051