By Ray Stern
By Ray Stern
By New Times
By Amy Silverman
By Stephen Lemons
By Stephen Lemons
By Monica Alonzo
By Chris Parker
Moments before the recent Rule 32 hearing began, members of the Teran and Amarillas families exchanged pleasantries and sat peaceably beside each other. The clans, both well-respected in Bisbee, harbor no apparent ill will toward each other. And the Teran family has not mounted any campaign to keep Art Amarillas behind bars.
The first witness at the hearing was Matthew Borowiec, who had presided at Amarillas' murder trial. He had recused himself from considering the Rule 32 petition, Borowiec testified, because of his "strong feelings" about the goings-on of a dozen years ago. "I was surprised when it went to trial," Borowiec told Judge Desens. "There was an inordinate amount of confidence in an acquittal, as expounded by [Mike Johns]. It's bothered me over the years."
Robert Arentz, one of Amarillas' prosecutors, also recalled the trial vividly. "It seemed they were pushing the insanity defense to the exclusion of all else," said Arentz, now in private practice in Phoenix. "In my opinion, there was a very grave risk of an all-or-nothing insanity defense."
In the courthouse lobby during a break, Mike Johns told one of Amarillas' brothers, Freddie: "I screwed up, and I'll say that on the record."
Johns' testimony, however, was a bit more circumspect.
"I just don't think I knew anything about the insanity defense when we first started," he said. "It was after the verdict that I realized we had some serious problems. If I had to pick a time to try it, it wouldn't have been that time. But I've never guaranteed any kind of a result in any case."
An investigator from the Cochise County Public Defender's Office testified that Novotny is said to be living under an assumed name in another state.
Jose Lerma, now a Superior Court judge in Santa Cruz County, testified over a speaker phone that he's forgotten much about the old case. But he bristled at the notion that he'd sold Amarillas down the river.
"Even when the insanity defense is viable, it's like flipping a coin. I am a very cautious man," Lerma said, adding that he was "devastated by the verdict and didn't work for a while" afterward.
Gerald Till, a deputy Cochise County attorney trying to keep Amarillas locked up, raised several compelling points.
"This is a case that is so unusual that I found no precedent for it," Till told Desens, "but I do know that Mr. Amarillas was rolling the dice. It's so easy to look back in this case. It was a crime that shocked the community of Bisbee. That a wrong strategy ought to give rise to a defendant having the ability to second-guess 12 years later--well, it's an awful situation to get into."
Robert Hirsh--the able Tucson attorney whose startling victories in two insanity-defense cases led to changes in Arizona law--came at things from another angle.
"When I saw in the jury instructions that Judge Borowiec said you cannot predicate insanity on voluntary intoxication, I knew this case was a hopeless loser," Hirsh testified, also by phone. "I would have bailed out on this one."
Hirsh noted that the Amarillas trial came shortly after the successful insanity defense in the trial of would-be Ronald Reagan assassin John W. Hinckley Jr. The Hinckley verdict caused a furor about the propriety of the controversial law, further weakening Amarillas' chances.
"I think if [the attorneys] rejected the plea-bargain, it fell below the standards of practice in the state of Arizona," Hirsh continued. "I think that the lawyers had to give guidance in this--that's what lawyers are for. But it's the stupid ones [defendants] who don't get good legal advice and do the time. The smart get out."
Judge Desens was expected to decide this week whether Art Amarillas merits a new trial. If that happens, Amarillas probably will be allowed to plead guilty and be sentenced to time already served.