Tuscon Citizen

Judge tosses out murder conviction

* County attorney admits prosecutor's misconduct
* Other cases to be reviewed
* Wife cleared of slaying

 By A.J. Flick
September 13, 2003

A woman convicted of killing her husband of 17 years was cleared yesterday after the Pima County Attorney's Office admitted its prosecutor intentionally withheld documents that could have helped her case. At the request of Pima County Attorney Barbara LaWall, Superior Court Judge Virginia Kelly dismissed Carolyn June Peak's case with prejudice, meaning she can never be tried for her husband's death.

Now all of prosecutor David White's recent cases will be reviewed, LaWall said.

Peak put her head in her hands and wept as Kelly dismissed the charges.

"It's over!" Peak said as she left the courtroom surrounded by supporters.

Earlier, as she made her way to the courtroom in an elevator, Peak cautiously told a companion, "The news hasn't sunk in yet. I've been here before."

Peak and her attorney, Harold L. Higgins Jr., refused comment after the brief hearing but issued statements expressing relief.

"Justice has been served," Peak's statement said. "I have steadfastly maintained my innocence. I loved my husband and would never do him physical harm."

David White, the prosecutor who handled Peak's case and many other notable murder trials here, died in January at age 52 of pancreatic cancer. White, former chief criminal deputy prosecutor and 1999 Arizona prosecutor of the year, once was accused by the State Bar of making false statements and allowing false testimony in the 1998 trial of multiple-murderer Robert Jones.

At a news conference announcing that prosecutors were asking for Peak's dismissal, LaWall said, "This was an extremely difficult decision and not one that we came to lightly."

At the time of White's death, LaWall said she and White became friends after she defeated him in the 1996 election for county attorney.White's widow, Janet Bingham, said her late husband is being used as a scapegoat.

"It's absolutely pathetic," Bingham said. "David doesn't have a chance to defend himself, which is a courtesy given to everyone. I think Barbara's performance is absolutely pathetic.

"Barbara is interested in covering for herself. It's absolutely pathetic. Anyone who knew David knows better."

Hundreds of pages of undisclosed documents were discovered in White's files when Deputy County Attorneys Baird Greene and Teresa Godoy were preparing Peak's case for retrial after an appeal was granted in November.

LaWall praised Godoy, who recently got a national honor for her work in death penalty cases, and Greene for bringing the documents to light.

"They knew they had to be disclosed," LaWall said. "They did not hide them. They stepped up to the plate, and they did the right thing, even though the outcome is something none of us liked."

Former Arizona Supreme Court Justice Stanley G. Feldman said admitting the errors is proper.

"Obviously, these things happen, not only here but all over the country," said Feldman, who wrote the state Supreme Court decision calling for Peak's retrial or dismissal of her charges. "Fortunately, it doesn't happen too often. Most prosecutors act in an honest and professional manner.

"What Ms. LaWall did was uphold her duty as a prosecutor. You cannot get a conviction at any price, at any cost. She is to be commended for what she did."

Feldman did not recall the case yesterday. The Court of Appeals and state Supreme Court sent the case back for retrial because of the second-degree conviction, which Peak's attorneys said was not supported by any evidence.

While prosecutors are not bound to release all documents, they are required to notify defense attorneys of evidence that benefits the defendant, called exculpatory, and make it available. Because there were so many documents, including 32 witness interviews, LaWall said it was clear that White intentionally withheld the information because it would have aided Peak's defense.

White also improperly used subpoenas to request Peak's credit reports and counseling records from Casas Adobes Baptist Church, LaWall said.

In July, Higgins asked that the case be dismissed or, at the very least, that the Pima County Attorney's Office be disqualified "due to its misconduct and the lingering, indelible effect of this misconduct."

Defense attorney Harriette Levitt, who alleges prosecutorial misconduct of another kind in an appeal she is handling in a first-degree murder case, said LaWall's admission was overdue.

"It's about time she woke up," Levitt said. "I hope this is the first step of many changes in her office."

Defense attorney Richard Lougee, a frequent critic of LaWall's office, said prosecutors have long considered many laws of criminal procedure "hurdles" to overcome in their zeal to secure convictions.

LaWall is auditing White's cases from recent years but so far has found nothing to indicate this was a pattern of behavior, she said.

To prevent future problems, LaWall said prosecutors will no longer be allowed to issue subpoenas without a supervisor's approval.

Prosecutors will be required to keep open files on cases, and defense attorneys will be given full access before trial, LaWall said.

"That's absolutely meaningless," Lougee said.

Lougee said an open-file policy existed when he defended Christopher McCrimmon in the 1992 El Grande Market triple-murder case prosecuted by Deputy County Attorney Kenneth Peasley.

"Their open-file policy then consisted of Peasley's paralegal piling papers on a table, and you had to sift through them to put them together," Lougee said.

Lougee later filed a State Bar complaint, claiming Peasley solicited false testimony at trial from former police detective Joseph Godoy.

Godoy, who is married to Deputy County Attorney Teresa Godoy, and Peasley are friends. Peasley got special permission to marry the couple. Peasley and Godoy, who was recently cleared of wrongdoing, both work with defense attorney Brick P. Storts III.

In an unrelated case, the Arizona Supreme Court yesterday agreed to hear arguments on behalf of Peasley, who may be disbarred because of his actions in two 1992 triple-murder trials.

The high court agreed to consider its disciplinary commission's disbarment recommendation for Peasley and arguments in an appeal in Peasley's behalf.

"I can't comment because the case is still pending," said Peasley, twice Arizona's prosecutor of the year. "But I'm pleased that they're taking a look at it. That's all I can say. Not because I don't want to, but I'm not allowed to."

Wyatt Earp Peak, whose name is spelled Wyett in some court documents, was found shot to death in his bed the morning of Jan. 28, 1998.

Carolyn Peak had slept beside him but maintained she had not been awakened by a gunshot. However, the Peaks' son, Pat Garrett Peak, later said he'd awakened thinking that he'd heard a gunshot, but his mother told him to go back to sleep.

Carolyn Peak said when she woke up, she took their daughter to the bus stop, returned to their home and answered a phone call for Wyatt, which is when she discovered that he'd died.

Her attorneys maintained that either Wyatt killed himself or that their daughter, Tara Peak, may have been responsible. Some of Tara's friends testified that she wanted her father "dead or gone." Wyatt reportedly had disciplined his teen-age daughter for sneaking out of the house to be with her boyfriend.

Carolyn Peak was arrested, charged and indicted for first-degree murder a year after Wyatt's death.

No fingerprint or other direct evidence was produced at trial, but Carolyn Peak was convicted in April 2000.

LaWall said White did not share the undisclosed documents with the Pima County Sheriff's Department.

However, the information will be given to detectives to investigate whether anyone else was responsible for Wyatt Peak's death

  • Jan. 28, 1998: Wyatt Peak is found dead in his bed of a shotgun wound to his forehead. His right hand is beneath the covers, his left above. Peak is right-handed. A gun owned by Carolyn June Peak, which is kept in Wyatt's nightstand, is on the bed.
  • March 16, 1999: Carolyn Peak is arrested.
  • March 26, 1999: Carolyn Peak is indicted by a grand jury.
  • April 13, 1999: Carolyn Peak is released, pending her trial.
  • April 29, 1999: A subpoena is issued for counseling records for Carolyn Peak at her church, Casas Adobes Baptist Church.
  • May 26, 1999: A subpoena is issued for credit reports.
  • May 28, 1999: A subpoena is issued for credit reports.
  • June 10, 1999: A subpoena is issued for credit reports.
  • Dec. 3, 1999: A second subpoena is issued for credit reports.
  • December 1999-April 2000: Statements are taken from 32 witnesses, and 26 other investigative reports are made and held in the state's possession but not disclosed to the defense.
  • April 5, 2000: Carolyn Peak's trial begins.
  • April 17, 2000: Jury's verdict is not guilty of first-degree murder but guilty of second-degree murder.
  • July 10, 2000: A motion for a new trial is granted.
  • July 17, 2000: Prosecutors appeal the retrial order.
  • August 2002: Cancer diagnosed in David White.
  • November 2002: The Arizona Court of Appeals issues a mandate upholding the judge's ruling for a retrial.
  • December 2002: The case is reassigned to Deputy County Attorneys Teresa Godoy and Baird Greene.
  • Jan. 12, 2003: White dies.
  • June 25, 2003: Godoy and Greene disclose witness statements, investigative reports and subpoena records previously undisclosed to the defense.
  • Sept. 12, 2003: County Attorney Barbara LaWall asks that charges against Peak be dismissed; Superior Court Judge Virginia Kelly grants the dismissal.

Police/Prosecutor Misconduct
Truth in Justice