A judge yesterday ordered a new trial for Oscar Alberto Saenz, who was convicted of a murder to which another man has confessed. Despite the repeated confessions of Jesus Lugo Dominguez, Pima County prosecutors do not believe him. "I hope that people understand the state could take the easy way out and take the man to trial who has confessed to the murder - if we felt that he was credible. We don't," William Feldhacker, a deputy county attorney said in an interview after the judge's decision. Feldhacker said he and others in County Attorney Barbara LaWall's office will discuss their options and decide "whether or not we want to appeal the ruling."
Judge Deborah Bernini of Pima County Superior Court made her decision after hearing testimony from Lugo Dominguez's sister, who said her brother told her he shot a woman in February 1998. "There is sufficient new evidence that the court believes, had it been introduced at trial, it could have changed the jury's verdict," Bernini said. She will set the new trial date on April 2.
David Alan Darby, Saenz's attorney, said he will ask Bernini to begin the new trial soon, since his indigent client must remain in the Pima County Jail pending the retrial. Saenz, 34, said in a jailhouse interview yesterday that Bernini's ruling gives him hope of getting his "life back."
The ruling, he said, "makes me able to laugh again. I'm definitely happy. Oh, yeah, I want the new trial as soon as possible - this has taken me away from my family, my life."
During the 13 months Saenz has been jailed, the father of two said he wondered if justice was possible. "This gets me back to where I think there is real justice," he said. A jury in December convicted Saenz of the Feb. 23, 1998, slaying of Marisela Gastelum Salazar outside a southside night club. He could have been sentenced to life in prison without parole or with parole after 25 years.
In January, Lugo Dominguez, 26, crossed the border and gave statements to Nogales, Ariz., and Tucson police saying he, not Saenz, shot Gastelum Salazar, 29, in the parking lot of the Escandalo Nite Club, 4696 S. 12th Ave. Feldhacker charged Lugo Dominguez with perjury and other offenses for allegedly lying about the slaying. He remains jailed on a $17,500 bond.
His court-appointed attorney, Assistant Legal Defender Helen Gonzales, has advised him to remain silent. In addition to confessing to his sister, Lugo Dominguez told the same story to his boss, his boss's family and former co-workers.
But Feldhacker said Lugo Dominguez recanted the confession during a Jan. 28 jailhouse interview, which he and Tucson police Detective Raul Olivas did not tape-record. Lugo Dominguez has said the two pressured him to recant, saying he could face the death penalty if he didn't. But he repeated the confession in a letter sent last week to The Arizona Daily Star.
During yesterday's hearing, his sister repeated what she told the Star during a February interview in Nogales, Sonora: Her brother confessed to the killing in March 1998, a month after the slaying, and spoke of it later. But she said she talked with Saenz in the Pima County Jail three times - in April, June and July. In earlier interviews, both she and Saenz said she visited the jail, but the two did not speak.
Prosecutors initially thought she was married to Saenz, because she listed herself as his wife on the jail visitation records. They accused Lugo Dominguez of lying to protect Saenz, who they said was his brother-in-law. But prosecutors made no such allegations yesterday. Maria Lugo Dominguez says she listed herself as Saenz's wife so she would be allowed to see him.
Feldhacker asked her yesterday why she went to see Saenz. "Just to see if there really was someone paying for something he hadn't done," she replied. She said she learned of his conviction through a friend who found it in an English-language newspaper. "I told him I was the sister of the person who had done the murder in Tucson (for which he was in jail)," she testified.
Lugo Dominguez said Saenz was silent for some time. Then "he asked me two or three times if I would please tell my brother to turn himself in," she said. Lugo Dominguez testified that she went back to see Saenz in June to tell him her brother had vanished before she could talk to him about turning himself in.
She saw him for a third time in July to tell him her brother was back in Nogales, Sonora, and had agreed to turn himself in, she told the court. But Jesus Lugo Dominguez did not act quickly. His former boss, a Nogales, Sonora, architect - Samuel Enrique Arroyo Lozano - said he hired Lugo Dominguez in June or July as a construction laborer. It was not until December that his employee broke down crying and confessed to killing a woman in Tucson.
Arroyo Lozano and members of his family said they counseled the guilt-wracked Lugo Dominguez to turn himself in after the holidays. Arroyo Lozano said Lugo Dominguez's first try failed in early January when U.S. Border Patrol agents sent him back. Feldhacker yesterday argued that the judge should not grant a new trial because Darby failed to investigate the confession before Saenz's December trial.
"All he had to do was look at the visitation slips (on which Maria Lugo Dominguez listed her Nogales, Sonora, address)," Feldhacker said. Darby said Saenz did not know the exact identity of the confessor or where he could be found.
"For me to use that in court, it had to be material and not speculative," Darby said. "If I had said in court we had a confession but couldn't prove it and the confessor was gone, that would have been laughable." He told Bernini that as soon as he had Lugo Dominguez's confession statements to Nogales and Tucson police, he promptly moved for a new trial. Darby said he will use Lugo Dominguez's many confession statements to prove his client's innocence, if Lugo Dominguez refuses to confess to jurors during a retrial.
Lugo Dominguez has said he was drinking at the Escandolo bar when he approached two women outside about drugs. He said he shot Gastelum Salazar three times as she grabbed her purse inside her car because he thought she was reaching for a weapon. He said he threw the gun in the back of a nearby truck. Police found the murder weapon in the truck Saenz was driving. The only prints on the .38-caliber gun belonged to a crime lab technician.
Prosecutors presented other circumstantial evidence at trial, including the fact that Saenz fled from police in the truck shortly after the slaying. Saenz said he did so because he had two outstanding arrest warrants - a 1991 aggravated assault charge in Pima County and a drug charge in Illinois. No one testified to seeing who pulled the trigger.
One witness, who said he was drunk, said right after he heard the shooting, he saw a man with a gun walk toward a truck. He was unable to identify the man. Several other people testified that Saenz got in the truck, but they did not see him with a weapon.