THE MISSING PIECE
Ed Posada Sr. kneels in the desert a mile from the Mexican border. He knows every inch of this landscape off Geronimo Trail Road, a few minutes east of Douglas.
"This is where that bastard shot my son in the face, tu entendes?" he says, flashing the mad grin of the haunted. "Eddie was easy meat, unarmed, drunk on his ass.
"Then the guy went over to Sergio's car--it was there--and shot him like he was a dog. Then he went home and put on his badge. Cold-blooded.
"Thirteen months earlier, on August 8, 1994, Posada had knelt in the same spot, trying to make sense of what had happened there. A friend videotaped him as he inspected the crime scene, which Cochise County sheriff's detectives had examined hours earlier.
The videotape is chilling. It shows Posada poking a stick into soil soaked with the blood of his first-born. He says he was looking for clues. All he found were maggots.
At that moment, detectives were preparing to search the Douglas home of their only suspect in the executions of Eddie Posada Jr. and Sergio Tapia.
His name is Mark Martinez, a U.S. Border Patrol agent based in Douglas. Martinez was the last known person to have seen the two men alive--at the murder site in the early hours of Friday, August 5, 1994.
There was no known motive for the murders. But when word got around, as it does in this city of 14,000, everyone suspected a drug connection. Experts compare porous border towns such as Douglas to mini-Miamis of the early 1980s.
The frontier mentality is palpable in Douglas, home to the infamous drug tunnel, center stripe of a thoroughfare dubbed Cocaine Alley.
Drugs move north, stolen vehicles move south. The cash smugglers can tempt government agents with is incalculable. It's a place where the differences between good and bad guys blur, and the arrests of bad cops surprise nobody. Just this month, a veteran Border Patrol agent was busted for his alleged involvement in smuggling 1,200 pounds of cocaine.
"You know Douglas," Martinez's girlfriend, Nicole Foster, told homicide investigators. "You're gonna have to stay at home if you don't want to talk to someone who's dealing in drugs.
"Posada and Tapia, both in their early 20s, had been known to dabble in dope, though the extent of their involvement at the time of their deaths is speculative.
Martinez, then 30, had no known link to drug smuggling. But he became the chief suspect soon after some teenagers found the three-day-old remains of the two men.
When sheriff's detectives surprised Martinez at his home in the wee hours of August 8 for an interview, they found his account fraught with inconsistencies.
For example, a skittish Martinez first denied owning weapons other than his agency-issued .357. He then admitted to having possessed a shotgun and a .22 handgun. Pressed further, he said he currently owned a Smith & Wesson 9mm, and that it was in his Chevy pickup.
At that point, the detectives weren't aware that Posada and Tapia had been killed by a 9mm. But they didn't ask Martinez to produce the gun, even after his furtive answers had raised suspicions.
Their failure to do so would loom large.
Martinez confirmed what the investigators had been told by others: that he'd been alone with the two victims at the murder scene after everyone else had left a party there.
But Martinez claimed that two unidentified Mexican men had stopped by the desert site in a pickup, not long before he'd left about 4 a.m.
Investigators soon discovered that he had behaved erratically in the hours after leaving the party site.
Shortly after the sun rose, Martinez made an eventful 50-mile trip to Sierra Vista. He took a roundabout route along a dirt road, and wound up driving into a barbed-wire fence. When a passerby stopped, he refused any assistance.
In Sierra Vista, the agent bought a change of clothes and may have disposed of the ones he'd been wearing. He paid for a night's lodging at a Sierra Vista hotel. But he returned to Douglas a few hours later.
A police search of Martinez's home, vehicle and work locker later turned up an estimated 5,000 rounds of 9mm ammunition, but no 9mm gun.
A day after detectives searched his home, Martinez hired Michael Piccarreta to represent him. The Tucson attorney is renowned for his effective criminal defenses of accused border cops.
Piccarreta suggested to Cochise County authorities that Martinez might identify "the true killers"--provided his client was promised immunity from prosecution. The attorney told the authorities that he feared for Martinez's life.
"We have heard from various sources," Piccarreta wrote sheriff's detectives two weeks after the murders, "that both Mr. Tapia and Mr. Posada and his father, Ed Posada, were actively involved in large-scale narcotics activity. We are all aware that violence and death are risks associated with the narcotics business.
"The dead men were no choirboys. But proof of "large-scale narcotics activity" didn't exist. And even if it did, Martinez's tale of the two mystery men--like the "shaggy-haired stranger" of true-crime lore--seemed dubious.
Authorities didn't respond to Piccarreta's offer.
Mark Martinez remains the one and only murder suspect. Many folks in Cochise County--including the case detectives, some of Martinez's peers in the Border Patrol and the victims' families--don't consider the murders to be mysterious.
But the agent has evaded prosecution for the murders of Posada and Tapia.
Citing "insufficient evidence" last October, Cochise County Attorney Alan Polley decided not to seek a grand jury indictment against Martinez.
In Douglas, where tales of drug smugglers, crooked cops and violent ends are commonplace, the slayings of the popular young men have entered the realm of legend.
Across the border in Agua Prieta, many view Posada and Tapia as martyrs. Sergio Tapia's brother-in-law says that, not long after the murders, a Mexican hit man approached him with an unsolicited offer:
"He said he would assassinate Mark Martinez for us if we wanted, a freebie. It would have been easy, but what for? It's not the right thing to do.
"Even before the county attorney had declined to prosecute, Ed Posada Sr. had tacked up a sign in his tire shop. It says: "When it comes to the law, everybody is the same. Predators prefer easy prey.
"To Posada, the prey were his son and Sergio Tapia. He believes the predator was Border Patrol Agent Mark Martinez.
It's almost too much for Posada to bear. His son is dead and Martinez is somewhere in Texas, still employed by the Border Patrol.
Until a few weeks ago, Posada would sleep, usually fitfully, on a living-room couch surrounded by photographs of happier times. Playing golf and spending time with his 6-year-old son--his only surviving child--provided rare solace.
But on the frontier, trouble is never far away. On October 2, days after his interview with New Times, federal authorities arrested Posada on weapons charges. The feds allege that he bought an Uzi and a silencer from an undercover officer.
The feds say a search of Posada's tire shop and home uncovered nine other weapons, night-vision goggles and a bulletproof vest. He remains in custody, and it's uncertain what plans, if any, he had with his miniarsenal.
Even Mike Piccarreta--while reiterating Martinez's professed innocence--says he understands why some Douglas residents are calling for his client's head.
"I'd feel the same way if I was convinced Mark did it," the attorney says. "But whenever you get that close to the border, life is cheap and drugs are plentiful. There are a lot of people who do a lot of things. Mark tells me he didn't do it. And there's no proof that he did.
"According to police reports, public documents and interviews, this is what happened in the hours before and the days after the murders of Eddie Posada Jr. and Sergio Tapia:
It was Thursday night, August 4, 1994, a time to celebrate the birthdays of Eddie Posada Jr. and a buddy, Gene Arvizu.
The party started at the B&P Palace, a smoke-filled watering hole in downtown Douglas. Eddie Posada and Sergio Tapia weren't best friends, but both had grown up in the area and knew each other well.
Posada, who had just turned 23, was living with his father and grandparents at their home next to the tire shop. Father and son had been convicted of drug-related crimes--Ed Sr. years earlier on a charge of attempting to sell marijuana, and Eddie Jr. for pot possession.
But Ed Sr. says the rumors that he and his son had continued in the drug trade were false.
"Eddie was working for me at the shop, period," Posada says. "He wasn't perfect and neither am I, but making us look like major-league doper gangsters? Bullshit. We knew life is short.
"When he says that, he is not just thinking of his late son, Eddie. His second son, Serge, died of an accidental gunshot wound in 1990.
Tapia also was living with his parents, Manuel and Andrea, in Pirtleville, an unincorporated village attached to Douglas. A part-time student at Cochise College, he worked here and there to make ends meet. He also coached a girls' softball team.
"Serge had done things in his life that he shouldn't have done because he's a human," says his sister Nora. "But he had another side, too. He always told me that if God took one of us, the other one should remember the good things.
"It isn't certain how well Posada and Tapia knew Mark Martinez before that August night at the B&P.
Martinez ingested the first of many Bud Lights that night sometime after 6 p.m. He spent most of the next several hours chatting with a woman who wanted to rent his home while the agent traveled to El Salvador on a three-month assignment.
Three people told police they saw Tapia and Martinez talking at the B&P. But nothing appeared amiss.
At closing time, birthday boy Gene Arvizu invited Mark Martinez to join the partyers at a popular after-hours spot in the desert just outside of town. Martinez hadn't been part of that crowd, but he accepted the invitation.
About a dozen men and women rode there in several cars. Sergio Tapia arrived in his Nissan with a female friend. Eddie Posada came with some buddies.
Martinez later told detectives he'd bumped into his girlfriend, Nicole Foster, on his way home to get firewood and beer. She corroborated that account, but added that she'd assumed Martinez was calling it a night. He wasn't.
Not everyone was thrilled to see the agent in the desert.
Patty Jacobo says Posada made a snide comment when Martinez pulled up to the party site at an alarming rate of speed.
He said he hoped Martinez had scratched his 1993 Chevy King Cab because he was acting like a big shot, as usual. The agent parked, turned on his car stereo and started a campfire.
Beer flowed. Laughter and music bounced off the nearby hills. One reveler climbed atop an old windmill that stood nearby; the others thought it was a foolish stunt.
Jacobo says she noticed how close Martinez was standing to the fire. He's gonna burn himself, she whispered to Eddie, who replied in Spanish that he didn't care.
"I tried to cover his mouth, and I said, 'Be quiet, he's a Border Patrol,'" Jacobo says. "He said, 'Every time he drinks, he goes around looking to argue with everyone and wanting to show them his guns.
'"But apparently no one who survived the night saw Martinez display his weapons. In fact, a few eyewitnesses say Martinez and Tapia seemed to be getting along--singing along with Sixties songs and acting like old pals.
By about 3 a.m., the party was on its last legs. The woman who had come with Tapia left with girlfriends. Posada's pals also took off, leaving the pair and Mark Martinez alone.
Nobody was alarmed when Posada and Tapia failed to come home. They were flighty types who thought little of leaving on occasion for parts unknown.
But Friday became Saturday, with no signs of the two men.
On Saturday night, a group of teens drove to the desert to do what people have been doing there for years: Drink beer.
Their reverie was interrupted by a dreadful stench. Though they were only a few hundred yards away, the teens didn't see Sergio Tapia's car, which was parked in a shallow swale.
Early the next evening--Sunday, August 7--the teenagers returned to the desert to find the source of the potent odor.
It was about 6 p.m. A storm approached from Mexico. The teenagers wandered around until Tapia's Nissan came into view. Someone looked inside the car and saw a body. A second body was lying face down in the dirt, about 30 feet from the car.
The youths rushed back to Douglas and flagged down a cop. Because the murder site was outside city limits, the case belonged to the Cochise County Sheriff's Office.
It was pouring by the time detectives arrived at the crime scene.
There they found a markedly decomposed body in the Nissan leaning, face up, against the rear passenger door. The driver's window was open. The autopsy would show that Sergio Tapia had been shot once in the right temple.
The body on the ground was that of Eddie Posada Jr. He had been shot once through the left eye at close range. Indentations in the dirt indicated Posada had been kneeling when the killer shot him.
The victim's feet were crossed, which would make detectives wonder whether Posada had been forced to assume a standard Border Patrol apprehension pose--subject kneeling, feet crossed, hands behind the head.
Word travels in Douglas faster than a monsoon thunderhead. One of the men who'd been at the desert party with the victims returned to the site, telling detectives that a Border Patrol agent named Mark had been at the party, and had been the last person seen with Posada and Tapia.
About two o'clock Monday morning, sheriff's detectives decided to talk with the agent.
It would be the first and only police interview with Mark Martinez.
The man sitting at his dining-room table facing the two sheriff's detectives was not a deep thinker. But Mark Martinez was fast on his feet, a quality that had served him well during his seven years with the U.S. Border Patrol.
His peers viewed the Texas native as gung ho, a five-foot-seven-inch man who made up for his lack of stature with bluster.
The agency had transferred Martinez to Douglas in the late 1980s. A divorce, he slipped into an off-duty routine of drinking beer, watching movies, working out, dating a succession of women.
In January 1994, Martinez bought a house on Cherokee Drive in Douglas for $68,000. Friends say he loved his job, loved the area and planned to stay as long as the agency let him.
Some inside the Border Patrol speak of Martinez as an upstanding agent and person. But his Achilles' heel, others say, is his short fuse, which becomes even shorter when he's drinking.
"He's one of those little short guys that don't like to be pushed," Arturo Gonzalez, a senior Border Patrol agent in Douglas, told detectives after the murders. "He's always chasing women and he's always drinking until late. He gets real feisty, and I don't like that.
"Vivid evidence of his temper came in January 1994, when a Douglas judge ordered Martinez to stay away from his onetime fiance. The judge did so after the woman petitioned the court for help. She wrote: "Mark Martinez came to my residence and began pounding on the windows, ringing the doorbell and then tried to forcibly enter through a window and tried to unlock the carport door. This is not the first time this has happened--he has done similar things a number of times during the last 12 months.
"Still, she later told a detective she didn't think Martinez capable of murder. She considered him an insecure man who acted cocky as a front.
Veteran sheriff's detectives Vince Madrid and Mike Raffety knew little about Martinez and his possible involvement in the murders when they knocked on his door that morning of August 8, 1994.
They told the agent they were investigating a double homicide, and that he'd been identified as one of the last partygoers at the murder scene.
The cops asked Martinez to describe his activities of Thursday evening and early Friday morning: "I went to the B&P, and what did I do? I went to a fucking party out in the boonies," the agent said.
He admitted he'd stayed at the windmill with two other guys, but he couldn't remember their names. He then hit the detectives with a bombshell.
"I was partying with those two guys, and these [other] two guys drove up in a pickup. They got out, and we bullshitted, drank beers, we partied. And then I left, man, somewhere around four in the morning, I guess it was. . . . I had to go and get some shots in Sierra Vista; I had to wake up early."
"You went home to try to get some sleep?"
"Right. I had to work the next day at two, so I wanted to get some sleep.
"Martinez couldn't describe the two guys in the pickup, other than to say they were Mexicans. He said the mood had been friendly until he left: "We talked about women. We talked about all kinds of stuff.
"The detectives were skeptical about two strangers appearing in the middle of nowhere a few hours before dawn. The interview turned confrontational.
"Do you carry a gun?" Raffety asked Martinez.
"No, I don't have a gun. . . . I have my .357 duty weapon right there. It's in my bedroom."
"The only gun you own is your duty gun. Is it department-issued?"
"Yeah . . ."
"You've never owned any other guns?"
"Yeah, quite a few. I own a couple, a shotgun and a .22."
"How about handguns?"
"Yeah. I own a Smith 9mm."
"Do you still have it?"
"Yeah, it's in my pickup. I keep it in my pickup.
"But in a lapse that would haunt the investigation, the detectives failed to ask Martinez to show them the gun.
If he hadn't shown them the weapon, the simmering suspicions of the detectives quickly would have reached the boiling point.
But when detectives spoke with Martinez, sheriff's commander Rodney Rothrock explains, they didn't consider him a murder suspect.
"Because of decomposition, we didn't even know for sure yet that the men had been shot," says Rothrock, one of several officers who rushed to the murder scene. "We thought a law enforcement officer who had been at the party could accelerate our investigation. Instead, he became our main suspect.
"Martinez told the detectives he wouldn't take a polygraph test to confirm his account.
"Am I under suspicion of this shit, or what?" Martinez asked.
"Not at this point, no," Raffety said, waffling in the manner of shrewd police investigators everywhere. "We're just finding out what's going on.
"The detectives left the Martinez residence after 3 a.m., unaware that he'd failed to tell them many things of import.
When autopsies later that day revealed that the men had been killed by 9mm jacketed hollow-point bullets, the detectives instantly flashed on the 9mm gun that Martinez grudgingly had admitted to owning.
Testing that gun took on a sudden urgency.
The detectives obtained a warrant to search Martinez's residence, vehicle and work locker. They returned to his home at 8:20 p.m. on Monday to execute the search.
Martinez immediately phoned an attorney--not Mike Piccarreta--then told the detectives he wouldn't talk with them.
"Where's the 9mm, Mark?" Vince Madrid asked the agent.
"I guess you'll just have to find it, won't you?" Martinez replied.
During their searches, the detectives seized more than 5,000 rounds of 9mm ammunition--the same type of jacketed hollow-point bullets that killed Posada and Tapia. They found a holster for a Smith & Wesson 9mm.
But they didn't find any clothing that matched descriptions of what Martinez had worn to the desert party.
And they didn't find what they really wanted--Martinez's missing gun.
"In hindsight, maybe we should have asked the guy to show us the gun when he was still talking," says Rothrock. "Maybe we'd have a different situation today. But if he hadn't wanted to show it to us, he would have just said no way. We didn't have enough for a search warrant at that point. All we wanted was for a fellow officer to help us. But he didn't.
"The funerals of Eddie Posada Jr. and Sergio Tapia drew reporters and television crews from Tucson. Hundreds of people attended the ceremonies, at which mariachis played.
The two men were buried in Calvary Memorial Park in Douglas.
The mood of many in the town turned from grief to anger as days passed without Martinez's arrest.
By this time, Mark Martinez had retained the services of Mike Piccarreta. The Border Patrol placed Martinez on administrative leave with pay, and he moved to Tucson at his new attorney's request.
"My guy was getting death threats, even though he hadn't been charged with a thing," Piccarreta says. "I thought, in this country, you at least have to be arrested before everyone thinks you're guilty.
"Though Martinez had clammed up, the detectives had many leads to follow. They tried to work the ubiquitous drug angle, but no solid link ever developed.
Investigators began to speculate that Martinez's oft-demonstrated bad temper, intensified by hours of pounding Bud Lights, had caused him to murder--first Eddie Posada and then a sleeping Sergio Tapia.
One of many bona fide leads in the case was Martinez's girlfriend, Nicole Foster.
Foster began dating Martinez in early 1994. She was 20 years old. Her friends describe her as a sweet, intelligent person, but say her naivet sometimes blinds her. (Foster could not be reached for this story. She is said to be attending college, and apparently is still dating Martinez.)
Foster told investigators that Martinez recently had told her he'd attended the fateful desert party. That surprised her, she said, because the couple had spent much of the weekend together and he'd never mentioned it.
A few hours after that interview, Foster called a detective with important new details. She said that on the evening after the murders, Martinez had gone from his house to his pickup to get a gun. When he returned, he closed all the windows in the house.
A few days later, however, Foster told the detective she'd been mistaken. She said Martinez had retrieved a cassette tape, not a gun. She apologized for the error.
The detectives pieced together Martinez's movements after he'd left the party scene. A Douglas man on his morning stroll said he'd seen Martinez drive by about 5:30 or 6 on the fatal morning. He noted that a mesquite branch was dragging beneath the bed of Martinez's pickup.
Another sighting came about 90 minutes later, on Border Road near Bisbee. Why Martinez took this remote dirt road toward Sierra Vista remains a mystery. What happened there isn't.
Robyn Giacoletti and her daughter were driving to work in Bisbee that morning about 7:40. The two came upon a red Chevy pickup that had veered off the road and was enmeshed in a barbed-wire fence. They asked the driver if he needed help. The man--Mark Martinez--declined their offer.
One of them jotted down his license-plate number as Martinez extricated his truck from the wire and drove on past their car. A few minutes later, however, they saw his pickup again. It had a flat tire. The Giacolettis again stopped.
"I offered to take him to my place of employment so he could call for help," Robyn Giacoletti said later in a witness statement. "He seemed very hesitant. He said several times, 'I have to get to the fort for my shots.' He seemed very apprehensive and was sweaty. He talked very fast. He refused to allow me to call for help.
"The encounter troubled Robyn Giacoletti, who reported the incident to a Bisbee police officer before she reported to work.
Martinez finally made it to Sierra Vista, probably around 8:30 a.m. He called a friend named Shawn Martinez--no relation. Martinez hadn't spoken with Shawn in ages, but he asked to borrow her car for the day while a detailing shop performed cosmetic work on his newly damaged Chevy.
Shawn agreed, and met him at the shop. There, she told police, Martinez loaded a briefcase and other "stuff"--including an empty black holster--into her car.
Later, she told a friend that Martinez had said he'd been up all night partying.Martinez took her to work, then headed to adjacent Fort Huachuca for his 10 a.m. doctor's appointment. He needed shots for his El Salvador assignment. A nurse recalled that the agent "smelled like a brewery.
"Martinez shopped for new clothes at a Sierra Vista store. Sometime after noon, he checked into the Thunder Mountain Inn. The price for one night was $53.
The housekeeper wasn't finished cleaning Martinez's room, so she went about her business as he reclined on the bed. She also recalled he was "weird-acting and looked like he had been drinking all night.
"He told her he planned to stay three nights, or through the weekend. This was odd, because he had planned to go to El Paso the next day, Saturday.
But Martinez left the hotel at about 4:30 p.m., and picked up Shawn Martinez at work. He was wearing new clothes, she later told sheriff's detectives.
The two drove to the detailing shop, where the tidied-up Chevy was ready. They had a quick bite to eat, after which Mark Martinez returned to Douglas.
He then spent that night partying quietly with Nicole Foster and two other friends. He canceled his long-planned trip to El Paso, and spent the rest of the weekend drinking beer and watching movies.
One corner of Mike Piccarreta's airy law office in downtown Tucson is devoted to mementos from his impressive career,
There are keepsakes from the mid-1980s, when Piccarreta earned praise for his effective defense of church workers and other activists charged with harboring illegal aliens.
And there's a U.S. Border Patrol hat and nameplate engraved with the name Michael Elmer.
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.)
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."
Not long after the murders, authorities installed a gate and a fence to keep vehicles out.
Now, one has to maneuver between barbed-wire strands and walk the quarter-mile or so to the site. There, the broken-down windmill has since fallen on its side. And at the very spots where Eddie Posada and Sergio Tapia died, their families have erected two stone shrines with handmade crosses in their memory.
Before his recent arrest, Ed Posada Sr. occasionally visited the site. He was no longer looking for clues.
"I just think about my son and what he could have been," Posada Sr. says. "And I think about that asshole, smiling over there in Texas, 'cause he got away with murder.
Get the This Week's Top Stories Newsletter
- New Times Inquiries Spark Change in How Arizona Investigates Drivers Suspected...
Thu., Dec. 10, 6:25pm
Fri., Dec. 11, 7:00pm
Fri., Dec. 11, 7:30pm
Fri., Dec. 11, 7:30pm
- 10 Things Arizonans Hate About Snowbirds
- Inmates Accuse Arizona of Experimenting with Lethal-Injection Drugs