Jeffrey Martinson, who spent nine years in jail charged with the 2004 murder of his 5-year-old son, Josh, was released Saturday, according to his attorney, Michael Terribile.A Maricopa County Superior Court judge last week threw out the indictment against Martinson and ordered that he be released due to prosecutorial misconduct.
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 Ahwatukee man cannot be retried for murder because of the theory of double jeopardy.
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.
Part 1: Facing questions
Part 2: Under scrutiny
Part 3: Juan Martinez
Part 4: Solutions
Part 4 of 4
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, the federal public defender for Arizona. “We’ll do anything we can to bring someone to justice.”
Part 1: Facing questions
Part 2: Under scrutiny
Part 3: Juan Martinez
Part 4: Solutions
Part 3 of 4
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 convinced 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 at 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 was 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 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.
Photo by: Tom Tingle/The Republic
Jodi Arias breaks down on the stand while under cross examination by Juan Martinez.
“It’s his MO,” said Deputy Maricopa County Public Defender Tennie Martin when asked about trying cases against Martinez. “He’s kind of Teflon.”
Retired Maricopa 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 Maricopa County Attorney Andrew Thomas and Sheriff Joe Arpaio.
Martinez declined to talk to The Republic for this story. The Maricopa 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.
Maricopa 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.”
Part 1: Facing questions
Part 2: Under scrutiny
Part 3: Juan Martinez
Part 4: Solutions
Part 2 of 4
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 State Bar of Arizona 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 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.
Coming Monday: Prosecutors seldom disciplined
Part 1 of 4
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 over emotional to encouraging perjury.
Nearly half 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.
Jodi Arias, who has been convicted of first-degree murder in the 2008 death of her boyfriend, Travis Alexander, but has not yet been sentenced, filed motions in Maricopa County Superior Court this week to fire her main defense attorney.
Arias said Tuesday in a 12-page handwritten narrative that her lead attorney, Kirk Nurmi, had not seen her since May23, the day the jury reached an impasse on whether to sentence her to life or death. She claimed that she attempted to fire him in June, as well, but Judge Sherry Stephens did not grant her request.
FLORENCE– Robert Jones never looked up at the families of the men and women he killed. He didn’t apologize. He didn’t explain himself.
He just closed his eyes and went to sleep, media witnesses said, the second Arizona Death Row inmate to be executed this month.
FLORENCE — Robert Jones, who killed six people in Tucson and one in Phoenix over three armed robberies in 1996, was executed this morning at the Arizona State Prison Complex in Florence.
Jones, 43, was sentenced to death for the murders of Chip O’Dell, Tom Hardman, Carol Lynn Noel, Maribeth Munn, and Judy and Arthur Bell in Tucson. He was sentenced to life in prison for the murder of Richard Roels in Phoenix. Several of the victims’ family members witnessed the execution.
Ryanne Costello just wanted to know the last words her father said before he was murdered 17 years ago.
She learned everything she could about his killer and even tried to set up a meeting with him after his trial, then again several years ago, and then again recently as the killer neared execution. She wanted closure. She wanted to understand why her father was dead and how he faced his last moments.
FLORENCE – The oldest man on Arizona’s death row was executed this morning after 35 years in custody.
Edward Schad, 71, was sentenced to death for the 1978 murder of Lorimer Grove, 74, who was found dead in underbrush by the side of a road south of Prescott. A month later, Schad was arrested in Salt Lake City; he had Grove’s Cadillac and his credit cards.
In 2005, Arizona began weaving a tapestry of immigration laws, claiming that the federal government was not doing the job in immigration enforcement.But since 2010, with the passage of the controversial Senate Bill 1070 immigration omnibus, that tapestry has been steadily unraveling.
A U.S. District Court judge on Friday ordered the Arizona Department of Corrections to reveal the source of the drugs it will use to carry out two executions later this month, but she denied a request to delay the executions.Attorneys for two Arizona death-row inmates scheduled to be executed this month requested the information to ensure the drugs meet standards, which include having a valid expiration date. If so, they would have grounds to request a stay of execution.
The State Bar of Arizona, which licenses and regulates attorneys, filed a formal complaint on Tuesday against Chief Deputy Pinal County Attorney Richard Wintory for his conduct during a capital murder case he prosecuted while at the Arizona Attorney General’s and Pima County Attorney’s offices.Wintory is accused of making false statements of fact, being dishonest and engaging in conduct prejudicial to justice for inappropriately contacting a member of the defense team of a man he was prosecuting and then covering up the extent of his communication with that person to the court and his bosses.
Maricopa County Attorney Bill Montgomery wants the U.S. Supreme Court to reconsider the limits it set in Roe vs. Wade, its 1973 landmark opinion on abortion, in light of a blocked Arizona law and what he says is evolving science about pregnancy and abortion.
On Friday, Montgomery filed a petition with the high court to challenge a federal appeals-court ruling that Arizona’s law banning abortions after the 20th week of pregnancy is unconstitutional.
Arizona Gov. Jan Brewer is so concerned with appearing tough on crime that she has top aides bear down on the Arizona Board of Executive Clemency to ensure that it shows no mercy for prisoners in high-profile cases, according to former clemency-board members.Five former board members made the claim Thursday in declarations for a lawsuit in federal court by an Arizona death-row prisoner facing execution in less than two weeks.
Jodi Arias will sit down in a settlement conference with prosecutors on Oct. 24, according to her case calendar on the Maricopa County Superior Court website.Arias’ defense attorneys have not said what they will be talking about.
Debra Milke walked through the hallways of Maricopa County Superior Court with the uncertain step of a sleepwalker. She pressed her back into a corner of the elevator as it filled with people, her eyes big, her expression tentative, looking, in effect, like a person who had spent the last nearly 24 years in a cell and was now walking free.
She was wearing street clothes, not prison orange or jailhouse stripes. Her hands were free of handcuffs, her legs of manacles. Her hair was combed and styled, in contrast to the bristly gray shag of her recent court appearances. She was wearing makeup and had taken off her eyeglasses, which softened the expression she had on death row.
The Arizona Supreme Court on Tuesday upheld the disbarment of former Deputy Maricopa County Attorney Lisa Aubuchon, who, along with former County Attorney Andrew Thomas and another deputy, filed criminal charges and a federal racketeering lawsuit against judges and county officials.
Aubuchon and Thomas were disbarred in April 2012 by a three-person disciplinary panel of the Arizona Supreme Court.
An attorney representing Armando Saldate, the former Phoenix Police detective who claimed that accused child killer Debra Milke confessed to him nearly 24 years ago, has advised Saldate to take the Fifth Amendment and refuse to testify.
Without Armando Saldate’s testimony, it’s doubtful that the confession could come in to Milke’s retrial, effectively destroying the prosecution’s case.