THE MISSING PIECE

A hotheaded Border Patrol agent is the only suspect in a double slaying. One of his guns has vanished, and he's still got his job.

Elmer, a Border Patrol agent based in Nogales, was charged in 1992 of shooting an illegal immigrant in the back during a stakeout. Elmer's name in the highly publicized case became synonymous with "killer.

"Trouble was, two juries--in state and federal courtrooms--acquitted the ex-agent. The win cemented Piccarreta's reputation as the savior of border cops accused of crimes.

That notoriety is somewhat ironic to the 46-year-old attorney. Piccarreta calls himself "a lifelong antiauthority, antipolice kind of guy.

"But his brother is a Glendale police officer, and, on the job, the defense lawyer is equal-opportunity.

"I don't eliminate people as clients by occupation," says the lawyer, who's slated to be the next president of the Arizona Bar Association.

Piccarreta's first Border Patrol client was Glen Waltz, a Naco agent linked to a marijuana-importing conspiracy with a fellow agent. In 1991, a judge dismissed the drug charges against Waltz. Later, a jury acquitted the agent on a jury-tampering charge.

Since that time, Piccarreta has represented several agents, usually successfully, in drug-related cases. He's an imposing foe for any prosecutor.

Piccarreta says Mark Martinez retained him on August 10, 1994, less than a day after sheriff's detectives searched the agent's home. Martinez told a confidant that the attorney's retainer fee had been $10,000. How Martinez could afford to pay that sum is unknown.

"What do you want me to say?" the lawyer says, chuckling and declining to confirm his price tag. "If that figure is true, it was a bargain, wasn't it?

'Piccarreta's strategy in most cases is similar: "If I can involve myself in the police investigation, then I'll involve myself. And if they don't let me involve myself, we'll discuss those issues later with the jury. It's a no-lose situation.

"Within hours after Martinez hired him, Piccarreta sent the first of numerous letters to Cochise County authorities on behalf of Mark Martinez. He wrote to sheriff's detectives, to their supervisors and to County Attorney Alan Polley, sometimes twice a day. The common theme of his correspondence: Don't do anything that involves my client without first consulting me.

"As Mark is a key witness against the real killers," Piccarreta wrote detective Madrid on August 12, 1994, "I am fearful that they may not be brought to justice. However, I am also in a bind insofar as Mark is now a suspect in the crime . . . he obviously cannot be interviewed. But the more time passes, the less likely it will be that the culprits will be apprehended."

Piccarreta posed a solution.
"A comprehensive interview of Mark is necessary to solve the crime. . . . Of course, in light of the fact that he is a potential suspect (however wrongful that thought may be), immunity should be provided."

Though Piccarreta had put Cochise County authorities on the defensive, the detectives continued to gather material on Martinez.

Ana Muoz, a friend of Martinez's, spoke warmly of the suspect. There's no way he did it, she told a detective.

What, then, the cop asked Muoz, do you think the real killer was like?
"I would think somebody that's very angry," she replied, "either at someone in particular--something in particular--a particular situation, someone that's violent, has a short fuse, probably someone like that.

"That was precisely how several of Martinez's colleagues described him to detectives. Not all of his fellow agents concurred with Piccarreta's assessment that Martinez is "a drug warrior." A drunk warrior, maybe.

Phil Sanchez, a supervisor at the Nogales Border Patrol office, told the cops that "no one was surprised" that Martinez was a murder suspect. Sanchez had observed the agent's after-hours behavior.

He gets belligerent when he drinks, Sanchez said bluntly of Martinez. Sanchez remembered several off-duty instances in which the agent had started fights with colleagues over perceived insults.

Another agent, Sean Monroe, provided information that bore more directly on the murder case. He said he and another agent had seen and handled Martinez's missing Smith & Wesson--a little more than one day before the murders.

Monroe and the other agent had been staying at Martinez's house that week. On Wednesday night, Monroe said, Martinez had produced the weapon from his Chevy pickup, possibly from a pocket on the driver's door.

This was important. Everyone close to the case knew the gun could answer many questions. Ballistics tests probably would determine if the fatal bullets had been fired by that particular weapon.

A state lab would later conclude that the victims likely had been killed by bullets from a single gun.

Piccarreta's take on the missing gun is elliptical: "I always felt that if they were going to bring charges against Mark, we would have a more than satisfactory explanation for it. But since the police did not wish to immunize him, I'm not going to announce it. I can't comment about the gun.

"On August 29, sheriff's detectives interviewed Martinez's mentor, senior Border Patrol agent Arturo Gonzalez.

Gonzalez is known in Douglas as the "Godfather," an apparent reference to the financial and other assistance he says he provides younger agents.

"I'm the go-to guy when guys get in trouble," Gonzalez told the detectives. "They come and ask me about stuff."

There were several reasons for the cops to chat with Gonzalez: He and Martinez were known to be close. And Gonzalez had moved into Martinez's home after the younger agent left for Tucson. (Gonzalez still resides there, even though Martinez is still listed in county records as its owner.)

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