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.

Gonzalez was apprehensive about what he'd been hearing.
"There's a lot of talk on the street that I'm involved," he stammered as the interview started, "that if he gets arrested, I'm gonna get arrested. I don't want to go to jail."

The agent said he had grilled Martinez about the case, especially the missing 9mm. Gonzalez did little to quell suspicions about his friend Martinez.

"I asked him, 'Mark, where's the gun?' He said, 'I don't know, dude,' and he has no explanation. He says he just lost it. I said, 'Goddamn it, Mark, if I was you, I'd have the biggest magnet in the world, walking around the goddamn countryside looking for that gun.' If he didn't do nothing, why the hell is he all defensive about the gun?"

The interview ended with Gonzalez again defending himself, even though the detective hadn't been accusatory.

"I don't need a lawyer," Gonzalez said cryptically. "If I'm gonna incriminate myself or I think I'm gonna incriminate myself, I'll get a lawyer. But since I haven't done anything that I can say is illegal, why get a lawyer?"

A natural tension exists in most jurisdictions between police and prosecutors. By nature, the cops believe the cases they send over are solid. But most prosecutors are tougher sells behind closed doors than they ever let on in public.

That said, the lack of dialogue between Cochise County prosecutors and sheriff's detectives in the Martinez case was remarkable.

The usual drill in circumstantial cases such as this one is a healthy give-and-take. Prosecutors critique police reports, then ask the detectives to reinterview this or that person, or to clarify the time line or a fact.

"There were problems with the investigation, among other things, that made a conviction unlikely in my opinion," says Cochise County Attorney Alan Polley. "It was real close to being enough, a real borderline. But it wasn't enough.

"Certainly, the sheriff's detectives had holes to fill: Why was Art Gonzalez so scared, and why hadn't they pressed him more? Had Eddie Posada and Sergio Tapia been selling drugs recently? Why had Nicole Foster changed her story?

Some of their reports contained contradictory language, for example, mixing up the dates of crucial events.

Polley says he and his chief deputy, Vincent Festa, pored over the sheriff's reports several weeks after the killings. They weren't swayed to ask a grand jury to indict Mark Martinez.

But the prosecutors confirm they never asked the detectives to conduct follow-up interviews or to clarify any of the other shortcomings.

"I'm not sure what good that would have done," says prosecutor Festa. "I don't presume to tell them how to do their job, and they don't tell me how to do mine.

"Last October, Polley announced he would not seek a murder indictment against Mark Martinez. He appeared on television in Tucson to explain why, then asked the Arizona Attorney General's Office to render a second opinion.

That office agreed to do so, but only in the context of a possible obstruction-of-justice charge.

"I know my decision made a lot of people tremendously upset and angry," Polley says. "People in Douglas were saying that we sat on this because the alleged murderer was in law enforcement. That wasn't true, but that's why we asked the AG to take a fresh look."

One of those still angry with Polley is Cochise County Sheriff John Pintek.
"Alan tends not to touch anything that's a close call," Pintek says. "I know it's not the easiest case, but I think we gathered enough evidence to take it to a jury. Alan and them never asked us one damned question about anything, never gave us any direction. That hurt the case, no doubt."

It also went nowhere with the AG's Office. Sources inside that office say that John Evans, an assistant AG based in Tucson, was irate that Polley--in an apparent attempt to save face politically--had thrust the Martinez case on him.

Evans presented several witnesses before a state grand jury, but he never asked for an indictment.

"The official word is that the matter was closed because of insufficient evidence," says Evans, a veteran prosecutor who has not shown reluctance in the past to tackle difficult cases.

Mike Piccarreta is still in touch with Mark Martinez.
"He feels like he's the third victim in the case," the attorney says. "He actually gets run out of town and goes into hiding, because he's fearful for his life--either from retribution from the victims' families or from the people who committed the murder. There's a cloud over his head that's never gonna go away."

Sheriff's commander Rod Rothrock says he hopes someone will sing someday about the murders. If that happens, Rothrock says, he's convinced the lyrics will include Mark Martinez's name.

"It's frustrating, okay, when I think that he's still in law enforcement," Rothrock says. "But we still don't have the smoking gun, so to speak."

It's hard these days to get to the spot off Geronimo Trail Road where partyers once reveled with their cold beers, loud music and tall tales.

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