In re Peasley

• Decision Date: 28 May 2004
• Docket Number: No. SB-03-0015-D.,No. 004114,004114,SB-03-0015-D.
• Parties: In the Matter of Kenneth J. PEASLEY, Attorney No. 004114, Respondent.
• Court: Arizona Supreme Court

90 P.3d 764

208 Ariz. 27

427 Ariz. Adv. Rep. 23

In the Matter of Kenneth J. PEASLEY, Attorney No. 004114, Respondent.

No. SB-03-0015-D.

Supreme Court of Arizona, En Banc.

May 28, 2004.

State Bar of Arizona by Karen A. Clark, Phoenix, Senior Bar Counsel, Attorney for State Bar of Arizona.

Waterfall, Economidis, Caldwell, Hanshaw & Villamana, P.C. by James W. Stuehringer, Tucson, Attorneys for Kenneth J. Peasley.

OPINION

RYAN, Justice.

¶ 1 In this lawyer disciplinary case, the State Bar filed a complaint charging Respondent Kenneth J. Peasley with misconduct in violation of the Arizona Rules of Professional Conduct. The charges alleged that Peasley intentionally presented false testimony in the prosecution of two capital murder defendants. After lengthy proceedings, the hearing officer found by clear and convincing evidence that Peasley intentionally violated the ethical rules. Based upon the presence of mitigating factors, the hearing officer recommended a sixty-day suspension along with one year of probation.

¶ 2 Upon review, the Disciplinary Commission adopted and incorporated the hearing officer's findings, but reached a different conclusion about various aggravating and mitigating factors. The Commission recommended disbarment. Peasley petitioned this court for review, which we granted because this is a matter of first impression in Arizona and of statewide importance. We have jurisdiction under Article 6, Sections 5(4) and 5(5), of the Arizona Constitution and Arizona Rule of the Supreme Court 59(a).

I.

A.

¶ 3 The record before the hearing officer established the following facts.¹ Peasley was admitted to the State Bar of Arizona on April 26, 1975. He started his career in the Pima County Public Defender's Office, but in January 1978 he began working as a prosecutor in the Pima County Attorney's Office. By 1992, Peasley had conducted approximately 250 felony trials, 140 of which were homicide cases. Of the homicide trials, about sixty were capital cases.

¶ 4 On June 24, 1992, three people were murdered during a robbery of the El Grande Market in Tucson. The lead detective in the El Grande murder case was Joseph Godoy. Detective Godoy had been with the Tucson Police Department for twelve years and had worked in homicide for several years before the El Grande murders. Peasley was the issuing attorney in the El Grande homicides, which meant that he went to the crime scene, received all the police reports, and decided who would be charged and with what crimes they would be charged. Godoy and Peasley were good friends.

¶ 5 On August 26, 1992, an attempted robbery and shootout occurred at a pizza restaurant in Tucson. Although another detective was assigned to this case, the names of the eventual defendants in the El Grande case arose in connection with the investigation of the pizza restaurant case. Those suspects were Martin Soto-Fong, Andre Minnitt, and Christopher McCrimmon.

¶ 6 On August 31, Detective Godoy received information from an anonymous source that a Martin Soto was involved in the El Grande murders. That same day, Mr. Gee, the owner of the El Grande Market, told Godoy that a Martin Fong was a former employee. Also, on August 31, another detective told Godoy that one of his informants implicated "ChaChi" and Christopher McCrimmon in the El Grande murders. That evening, Godoy determined that "ChaChi," Martin Fong, and Martin Soto were names used by Martin Soto-Fong. In addition, on September 1, a Tucson Police Department fingerprint comparison report was completed, listing McCrimmon and Minnitt as suspects. The report identified McCrimmon's fingerprints as those found on a car near the El Grande Market. On September 2, Godoy assisted in arresting both McCrimmon and Minnitt for the robbery of the pizza restaurant. At that time, Godoy also interviewed both of them about the El Grande case.

¶ 7 Godoy subsequently wrote two police reports that reflected what he had learned during late August and early September in his investigation of the El Grande murder case. Specifically, those reports established that, before September 8, Godoy knew that Soto-Fong, McCrimmon, and Minnitt were the primary suspects.

¶ 8 On September 8, Detective Godoy interviewed an informant by the name of Keith Woods. The first part of the interview was not recorded. In the recorded portion, Woods stated that both Minnitt and McCrimmon had confessed to him that they and Soto-Fong had committed the El Grande murders. Eventually, Soto-Fong, Minnitt, and McCrimmon were charged with the murders. Peasley assumed responsibility for prosecuting the cases.

B.

¶ 9 Peasley prosecuted Soto-Fong first in 1993. Although the State Bar did not allege any misconduct in connection with the Soto-Fong trial, the hearing officer referred to that trial because it revealed Peasley's knowledge of when Detective Godoy knew the identities of the suspects involved in the El Grande case. First, Peasley admitted reading Godoy's reports before the Soto-Fong trial and thus knew that Godoy considered McCrimmon and Minnitt as suspects before September 8. Second, Peasley was present at Soto-Fong's counsel's interview of Godoy, during which the timing of Godoy's investigation was discussed. Finally, at Soto-Fong's trial Peasley questioned Godoy about when he first met with Mr. Gee. Godoy responded by telling the jury that he met with Mr. Gee during "the first week [of] September," when "Mr. Soto-Fong became a focus of the case." Soto-Fong was convicted and sentenced to death. State v. Soto-Fong, 187 Ariz. 186, 191, 928 P.2d 610, 615 (1996).

¶ 10 Less than a month after the Soto-Fong trial ended, the case against McCrimmon and Minnitt went to trial before a jury. Keith Woods was a key witness for the state in the joint trial of Minnitt and McCrimmon because no direct evidence linked them to the crime.² However, Woods was a highly impeachable witness because he was a drug addict with multiple felony convictions and agreed to testify to avoid prosecution and a potentially lengthy prison sentence on another charge. Consequently, for the jury to believe Woods, it was important that there be no suggestion that Godoy told Woods that McCrimmon and Minnitt had been involved in the El Grande murders.

¶ 11 To ensure that the jury believed Woods, Peasley, along with Godoy, engaged in the following conduct. First, in his opening statement, Peasley told the jury that Detective Godoy did not learn of McCrimmon, Minnitt, or Soto-Fong before the Woods interview and that Godoy did not know Soto-Fong was a former employee of the El Grande Market before he interviewed Woods. This statement implied to the jury that Godoy could not have told Woods who the suspects were when Godoy interviewed Woods on September 8.

¶ 12 Second, Detective Godoy, when questioned by Peasley, testified that he was not personally aware that one of the participants in the murder was a former employee until after he interviewed Woods and that McCrimmon and Minnitt were not suspects before the Woods interview.³ During a bench conference, Peasley also told the judge that Godoy did not begin investigating McCrimmon, Minnitt, or Soto-Fong until after the Woods interview. Finally, in his closing argument, Peasley argued to the jury that Godoy did not know until the Woods interview that a former employee was involved in the murders.

¶ 13 The jury convicted McCrimmon and Minnitt and they were sentenced to death. Their convictions were reversed for reasons unrelated to this matter. State v. McCrimmon, 187 Ariz. 169, 174, 927 P.2d 1298, 1303 (1996).

¶ 14 After Minnitt's and McCrimmon's convictions were reversed, the cases were severed and Minnitt was retried in 1997 before a different judge, Judge Richard Nichols. During this trial, when questioned by Peasley, Detective Godoy again testified that he had not come up with the names Chris McCrimmon, Andre Minnitt, "ChaChi," Martin Fong, or Martin Soto before speaking with Woods on September 8. He emphasized that the first time he had heard those names was during that interview. In response to further questions by Peasley, Godoy also testified that he had not submitted any of the defendants' fingerprints for comparison before he interviewed Woods and that Minnitt and McCrimmon were not suspects until he had spoken with Woods. In his final argument, Peasley again argued that Godoy did not have Minnitt's name until after he had interviewed Woods. The retrial ended in a mistrial because the jury could not reach a verdict. ¶ 15 McCrimmon's defense attorney had been present during the Minnitt retrial and discovered that Peasley had introduced false testimony. During McCrimmon's second trial, which began shortly after the conclusion of Minnitt's retrial, Detective Godoy answered Peasley's questions differently than he had in the prior trials. For example, he testified that he had submitted the fingerprints before the Woods interview and that he had known the defendants' names on September 1, 1992. Defense counsel impeached Godoy with his prior testimony. In his closing argument, Peasley explained that Godoy answered the way he did in the earlier trials to protect confidential sources and avoid a mistrial. He also argued it was a "sick system" that put an officer in a position in which he had to answer the way Godoy had answered. The jury acquitted McCrimmon.

¶ 16 After McCrimmon's acquittal, in anticipation of a third trial, Minnitt's defense counsel filed a motion that alleged Peasley engaged in prosecutorial misconduct in the prior trial and urged the court to dismiss on the grounds of double jeopardy. Judge Nichols denied the motion but made findings about Peasley's conduct in the Minnitt retrial. He found misconduct on Peasley's part and that it was "not merely a result of legal error, negligence, or mistake or insignificant impropriety." Judge Nichols, however, did not find that the "conduct was engaged in with the intent to further an improper...