Yakima murder case dismissed over misconduct

YAKIMA — In a blistering decision, a Yakima County Superior Court judge has accused the county prosecutor's office of misconduct and dismissed a murder-conspiracy case it was hoping to try a second time.

At issue is whether the prosecutor's office withheld evidence that could have undermined its case against a man accused of plotting what would end up as a botched hit on a Yakima fruit baron last year.

"The state's misconduct prejudiced the defendant's right to effective assistance of counsel," Judge Susan Hahn wrote in her ruling.

Jeff Sullivan, who was the Yakima County prosecutor at the time, said yesterday: 'I did not intentionally withhold this information. I would never do such a thing."

Sullivan, now the chief of the criminal division for the U.S. Attorney's Office in Seattle, had been Yakima County's prosecutor for 27 years.

The January trial against Alexander Martinez was his last here.

Martinez was accused of hiring two brothers, Manuel and Noe Caldera, and giving them the guns to rob and kill Tom Hanses, a co-owner of Washington Fruit and Produce, where Martinez was a human-resources manager.

The brothers did not hurt Hanses, but they tied him up and robbed his house in a gated subdivision. They were arrested 90 minutes later because the vehicle they had stolen from Hanses — a Yukon Denali — was equipped with a dashboard tracking device.

The Calderas said the plan was Martinez's idea. They accepted a plea agreement that would give them reduced prison terms in exchange for their testimony against Martinez.

Martinez was charged with conspiracy to commit murder and first-degree robbery, burglary, theft and kidnapping.

The six-week trial ended with a hung jury, voting 10-2 for acquittal. Judge Michael Leavitt declared a mistrial.

Sullivan's successor, Ron Zirkle, announced plans to retry Martinez.

But Martinez's defense lawyer, Adam Moore, sought to have the case dismissed, contending the prosecutor's office had withheld until midtrial a police report involving the theft of one of the guns the Calderas said Martinez had supplied.

"Prosecutors know what the penalty is for withholding evidence, and intentionally doing it would be unconscionable," Zirkle said. "We know it would result in dismissal."

Sullivan said he was the one who brought the police report to Moore's attention when, during a conversation, it became clear to him that either Moore hadn't seen it, hadn't read it or didn't know what it meant.

"I'm the one who brought it to his attention at a time when he could use it effectively (during the trial), and he did," Sullivan said. "To suggest I intentionally withheld it from him, I think is unfortunate. There is plenty of evidence to suggest that isn't the case."

But, if Moore did not get the report — two pages among hundreds of pages of documents — it was inadvertent, Sullivan said.

"The remedy for him was to move for a mistrial or move for time (a continuance). I don't think he did either," Sullivan said.

According to court papers, the state contended that Martinez obtained a chrome pistol after it was stolen in October 2000 from a man identified as Ramirez. Martinez is supposed to have shown that gun and another to a co-worker, Rebecca Reinmuth, in December 2000 before giving them to the Calderas in 2001.

But the theory breaks down if Martinez showed Reinmuth the guns in 1999, as she testified at a pretrial hearing on Nov. 15, 2001, Hahn wrote in her decision Friday.

"Sullivan had highly relevant information he knew or should have known the defendant did not have and the court certainly did not have," Hahn wrote.

"In this case, the state intentionally misled the court and defense counsel about the validity of the gun identification. This conduct breached the prosecutor's responsibility as an officer of the court."

Zirkle said he has not decided if he will appeal the judge's ruling. He said he has instituted new identification stamping policies for documents at the office to try to prevent a similar problem.