IN DEFENSE OF ARTRARE HEARING CASTS DOUBT ON QUALITY OF CONVICTED MURDERER'S DEFENSE
Art Amarillas peered into the spectators' gallery of a Cochise County courtroom earlier this month.
"I've been very sad about this since it happened," he said to three of Ismael "Miley" Teran's surviving relatives. "He never did anything to me. I was a very weak-minded individual, and my paranoia caused me to act in extreme ways. But that's no excuse."
As Amarillas shifted his weight, the shackles restraining him clanked and echoed in the airy room.
A sheriff's deputy handed two of Teran's tearful relatives some tissues. Members of the Amarillas family--some of whom had driven to Bisbee that morning from their Phoenix-area homes--also dabbed at their eyes.
Amarillas looked up at Superior Court Judge Stephen Desens.
"I never had any intent of going to trial," he told the judge. "I was gonna take the plea-bargain. I didn't want to take a chance on first-degree murder."
But in late 1982, Amarillas' attorneys convinced him to reject a plea-bargain that likely would have meant about seven years behind bars.
Instead, he went to trial.
Amarillas' attorneys had attempted to show that chronic and acute alcoholism had made him legally insane. But trial testimony showed Amarillas had claimed after fatally shooting Teran that he hadn't started drinking until after the murder. The jury quickly convicted Amarillas of first-degree murder, which meant a life sentence with no opportunity for parole for 25 years.
Now, halfway into his term at the state prison in Florence, Amarillas--dried out and said to be a model prisoner--had won another day in court.
His goal: a new trial.
His avenue: a legal petition called Rule 32, in which prisoners rest their hopes on supposedly "newly discovered" evidence or alleged constitutional violations.
Such petitions are commonplace, but rarely pass muster with judges. For example, aggrieved prisoners often insist, in hindsight, that they'd wanted to go to trial, but had been swayed by their attorneys to plead guilty. Judges normally glance at the paperwork, reject it, then move to other business.
The Amarillas petition was different.
Consider the list of witnesses for the Rule 32 hearing. Among those testifying on Amarillas' behalf included the judge who had presided over his 1982 trial and sentenced him to prison, two of the men who had prosecuted him and a renowned expert in insanity-defense law.
And when was the last time anyone heard an attorney admit under oath to having made terrible mistakes in such a high-stakes matter? That's what happened here.
Still, a crucial question draped itself over the proceeding: Should a convicted murderer get a second chance because his defense team had employed a slipshod strategy at trial?
Guilt was never in doubt. Amarillas had stated his lethal intentions before the crime, there had been an eyewitness to the shooting outside the Wonder Bar in Lowell and he'd confessed to police.
Amarillas had killed Teran in a jealous rage over a woman.
But Amarillas' Rule 32, as argued by his court-appointed attorney, Stan Lehman, went like this:
His lawyers had convinced him to go to trial instead of pleading guilty to second-degree murder for the worst of reasons--money.
"The attorneys, through trial and the presentations of an insanity defense, knew that they could draw out the trial for several weeks and charge Cochise County accordingly," Lehman argued.
Records prove this claim was not spurious. The two attorneys and a defense investigator had billed the county $111,000 for their work on the case, an enormous sum back in 1982. (The trio was court-appointed; Cochise County still was a few years from establishing a Public Defender's Office.)
Prosecutors offered what seemed to be a fair plea-bargain: In return for Amarillas' guilty plea, he probably would serve no more than seven years behind bars.
That sounded like a generous deal to Amarillas, who told his attorneys that he planned to take it. But his lawyers and the investigator, David Novotny, urged Amarillas to reconsider.
Out on bond, Amarillas spent one weekend shortly before trial with his defense team on a fishing/water-skiing trip at Apache Lake. There, Amarillas alleged, his advocates put on a full-court press, telling him he would walk on the murder rap if only he'd go to trial, go to trial, go to trial.
Just a few days before jury selection, the team convinced Amarillas and his mother, Tillie, to forget the plea-bargain.
Cochise County Superior Court Judge Matthew Borowiec had appointed veteran attorney Jose Lerma to head the team, but Lerma was immersed in another murder trial as the Amarillas trial approached. By all accounts, he ceded most of the responsibility for trial preparation to co-counsel Mike Johns and defense investigator Novotny.
These days, Johns is known as an effective Bisbee barrister. But back in 1982, he was green in major felony defense work. The Amarillas case was his first murder trial.
Novotny was a story in himself. As a South Tucson cop in the late 1970s, he had grievously wounded a man in a highly publicized shooting. The subsequent civil lawsuit had forced the City of South Tucson to declare bankruptcy. His police career finished, Novotny had become a private investigator. According to Art and Tillie Amarillas, Novotny held undue sway over the pretrial proceedings. The Amarillas case provided a financial windfall for the disgraced ex-cop.
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.
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