The odds were stacked against Westyn Lee Tanawa Hamilton when he squared off against five bouncers behind the New West/Gotham nightclub in the cold, early morning hours of Jan. 2, 2000.
The 23-year-old Tucson man would die in a bloody melee, grappling on the asphalt with men hired specifically for their intimidating brawn by the Marana nightclub, where records show violence was a common occurrence.
But an examination of the case over the course of 18 months by the Northwest EXPLORER found the odds were also stacked against Hamilton receiving an impartial criminal investigation of his death. Apparent conflicts of interest, much of it centered on Marana Police Chief David R. Smith, hung over the case from the moment the Marana police officers arrived at the crime scene to the announcement three months later that no criminal charges would be filed. Smith's involvement with the bar's owners and their attorney also lingered through a subsequent investigation of the club by state liquor regulators.
The announcement by the Pima County Attorney's Office that it would not charge the bouncers with any crimes was heavily influenced by the Marana Police Department's investigation. The decision came despite the 52 cuts, bruises, and abrasions and two internal injuries Hamilton suffered to his neck and head, and eyewitness accounts that differed substantially from the bouncers' claims that they simply tried to restrain him.
One of those witnesses, a New West/Gotham bouncer named James Conklin, would tell MPD detectives in graphic detail how he watched from a nearby doorway as the other bouncers, referred to as "groomers" by themselves and the club's management, beat Hamilton to death.
"They did murder him senselessly," Conklin said in his initial phone call to Marana detectives four days after Hamilton died. "He was not fighting at all and they were pounding his head and kicking him and everything else."
A few hours after that phone call, Conklin arrived at the Marana police department substation on Orange Grove Road. During an hour and 15 minute videotaped interview conducted by MPD detectives, Conklin repeatedly claimed the bar's attorney was "going to have me lie" and said he was tired of being told what to say about what happened to Hamilton.
The Marana Police Department involvement with the bar, which some officers already considered a conflict of interest, had suddenly deepened to include investigating a homicide at a business that had paid the police officers money for their services.
The three Marana patrol officers and their supervisor who responded to the 911 call of a fight behind the bar, at 4385 W. Ina Road, were paid to work as security for the New West/Gotham on numerous occasions, much the same as the bouncers who had suddenly come under their scrutiny for killing Hamilton.
Three Marana detectives and their sergeant, who in the past had also taken the bar's money to work as security, found themselves tasked with investigating a homicide that could have a devastating financial impact on a business that raked in millions of dollars and had paid an estimated $100,000 a year to moonlighting Marana police officers from mid-1997 until late December of 1999.
And while the Northwest EXPLORER found no direct evidence that any of the detectives or patrol officers involved in the case colluded to influence the investigation, it did uncover critical witnesses who made statements damaging to the bouncers who received only cursory interviews by MPD detectives. One witness, a patron who said she watched Hamilton being placed in a choke hold by the bouncers outside the bar was apparently never interviewed at all.
But several officers said an even more unsettling relationship existed between Marana's chief of police, who began and maintained the off-duty work, and the New West/Gotham.
MPD officers said Smith's actions, along with those of the New West/Gotham's attorney, would have tangible effects on the outcome of the Hamilton case and an investigation by state liquor regulators that threatened the bar's lucrative liquor license:
* MPD officers and an investigator close to the case said Smith was meeting privately with the bar's owners and their attorney, Michael Piccarreta, during the criminal investigation and the investigation by The Arizona Department of Liquor Licenses and Control that followed.
Officers, including one of the four homicide detectives assigned to the case, said they suspect Smith "leaked" information about the criminal investigation to the New West owners and the bar's attorney. At least one of the detectives said the detectives were being "pressured' by Smith for information at the same time Smith was meeting with Piccarreta, and one detective frequently tried to conceal the case file from Smith by taking it home at night. A detective said, and other police officers verified, that the detective would "walk around police headquarters with the case file wrapped in (the detective's) arms and would sometimes take it home at night to keep it away from the Chief."
* Smith, who set up the off-duty work arrangement with the New West/Gotham, displayed a pattern of favoritism toward the nightclub that included rebuffing a 79-page MPD Office of Professional Standards report that concluded the work was a conflict of interest; defending the nightclub before the Marana Town Council and in a letter to administrators of the state's liquor licensing agency; sending high ranking police officials to help coordinate the club's security and making security recommendations himself; attempting to hire a liquor investigator who had worked on cases involving the nightclub; and assigning additional officers to patrol the bar after Marana administrators ordered an end to most of the off-duty work. Smith's daughter was also given a job at the nightclub, and Smith allegedly removed his chief's insignia and worked off-duty security for pay more than 20 times at the bar.
* Piccarreta, the New West/Gotham's attorney who was in contact with Smith during the investigation, was allowed by MPD to sit in on all the detectives' interviews with the bouncers involved in the struggle with Hamilton and questioned them even though he was representing the bar as a corporation and not representing the bouncers as a defense attorney.
* An MPD officer reported a man he believed to be Piccarreta was seen "reenacting" the Hamilton incident with some of the bouncers in the club's parking lot two days after Hamilton died, and a week before detectives interviewed the bouncers. The bar's reenactment, which the MPD officer said he believed was being directed by the bar's attorney and included some of the bouncers involved in the struggle with Hamilton, occurred a month prior to a reenactment requested by the Pima County Attorney's office as part of its criminal investigation. A deputy county attorney would later say the reenactment played a crucial role in his decision not to file criminal charges against the bouncers.
* During the investigation, Piccarreta was in contact with James Conklin, who claimed fellow bouncers murdered Hamilton. A private investigator working for Piccarreta called Conklin on at least two occasions and questioned him about his statements to police and his criminal history. Conklin would later amend his earlier statements and refuse to cooperate with investigators. One of the detectives working the Hamilton case implied to the Northwest EXPLORER that Conklin had been "given up to Piccarreta" by Smith. Piccarreta and his private investigator would also deliver to MPD detectives other witnesses that offered testimony absolving the bouncers of any wrongdoing, while at the same time sending police reports and other information to the county attorney's office that questioned Conklin's and another witness' credibility. Piccarreta also requested, and was granted, additional toxicology tests to search for the presence of steroids as part of the autopsy of Hamilton's body.
* One of the Hamilton investigators said the detectives were pressured by Smith to declare a cause of death early in the investigation, leading to an argument between the detectives and their chief that was witnessed by several other officers.
* The number two man in the Marana department, Lt. Richard Salizar, met with the bar's owners and management at the direction of Smith on at least two occasions to help coordinate security matters for the club prior to Hamilton's death. Despite the fact he would soon be eligible for retirement from the MPD, Salizar resigned from his position as a commander Aug. 8 to begin a career as a private investigator. One of Salizar's first clients was the New West/Gotham, for which he provided security services, according to a letter from Salizar to state liquor regulators.
Smith, who has headed the 59-officer department since August of 1991, refused further comment after providing one interview for this series in 2000.
Piccarreta, a past president of the Arizona Bar and one of Tucson's most prominent defense attorneys, has practiced law for more than 23 years and defended many law enforcement officers charged with crimes and wrongdoing.
In a November interview, Piccarreta said he couldn't recall when or how many times he met with Smith, or exactly what was discussed. The attorney also declined to examine his files that he said he believed would contain the information, or allow the Northwest EXPLORER to examine the files or time records.
However, Piccarreta did resolutely and repeatedly say his actions on behalf of the New West/Gotham were always "appropriate."
"I don't recall any information from Smith regarding the investigation. I've got a hunch that if I wanted to spend the energy and go through my time records, I could figure out the dates that I met with him. But I never received any leaked information from anyone in this investigation … there was nothing inappropriate done, I thought, by the detectives or anyone in the Marana Police Department," Piccarreta said.
When Piccarreta was informed it was Marana police officers who alleged Smith provided him with information about the Hamilton investigation, he replied: "Tell them if they've got a problem, then tell them … they can make their allegations. I assume they'll disclose their names."
The police officers have asked not to be identified because they said they fear retaliation from Smith.
"I've got no problems with Piccarreta's actions," said one of the detectives who worked the Hamilton case. "He did what a defense attorney is supposed to do. Hell, if I was in trouble, I would want him working for me … the problem is with Dave Smith."
The massive bar complex consisted of the country and western-themed New West, a Hooters franchise, and Gotham, a dark and cavernous dance club with a pseudo-industrial motif of pipes and fans decorating the inside. Gotham generally offered alternative and hip hop music and drew crowds from all over the Tucson valley.
Police and liquor regulators said Gotham was the focal point of many of the crimes and state liquor violations that have occurred in the complex. It was also the club that Hamilton chose to attend on the night he died.
In late October, the owners closed Gotham and reduced the New West's operations to two nights a week in the wake of a wild shootout Oct. 17 in the club's parking lot. One man was shot and seven others received fight-related injuries after brawling and gunshots broke out following a rap concert at Gotham. Police said 40 shots were fired from at least five different weapons during the fight. Three of the shell casings found were believed to have come from an AK-47 assault rifle.
The incident has also brought renewed scrutiny by state liquor investigators, who are investigating 10 counts of alleged liquor law violations at the club that include "repeated acts of violence" and failure to protect patrons. The club's owners shut down the New West after Jan. 1, as the Arizona Department of Liquor Licenses and Control moved toward a hearing that state officials said could result in the revocation of the bar's liquor license.
The complex had been a veritable gold mine for its owners, a partnership fronted by Kirby Bond and Dana Dellheim. The New West and Gotham, which were connected by interior doorways, had a combined 1,905 person capacity.
On a single good night with patrons coming and going, as many as 4,000 people would pass through the huge club, Bond said in an interview shortly before Hamilton died.
Bond took over running the New West/Gotham from his father Clarence Bond in February of 1997, according to documents from the Arizona Corporation Commission. Smith began allowing police officers to work off duty at the nightclub about six months later, according to off-duty records obtained from the town.
MPD provided New West/Gotham with between two to 10 officers per night, sometimes as many as five nights a week, at a cost of $18 per hour. Police commanders and supervisors, almost all of whom worked at the club at some point in time, were paid $20 per hour, according to a contract signed by Smith and Dellheim in October 1999.
The officers, who mostly worked outside at the club's entryways, initially were handed checks by New West/Gotham management at the end of their shifts, according to a 1998 contract between MPD and the bar.
The officers often had their checks cashed by the bar at the end of their shifts, according to officers who worked at the club.
One of the few Arizona laws governing police officers' off-duty security work requires money generated by the rental of police equipment such as police cars to be forwarded to a state transportation fund.
Town and police department officials said the New West/Gotham did not pay a $25 per night fee for the use of police cars required under Marana's guidelines for off-duty work. Officers who worked the club, as well as observations by the Northwest EXPLORER, indicate an MPD patrol car almost always accompanied the off-duty officers who worked at the bar.
Factoring the average four nights a week the officers worked, the New West/Gotham's owners would have reimbursed taxpayers $400 per month for the use of the police car.
Roy Cuaron, Marana's finance director, said the fee was supposed to be paid by the club, but he could not find any record of it entering the town's coffers.
Also unclear was if the bar paid the administrative cost for an MPD employee to handle the scheduling of officers to work the club or if MPD simply absorbed those costs on the nightclub's behalf.
The scheduling was originally done by various MPD clerks, and later by a police sergeant who is currently paid $55,300 per year, a police spokesman said.
Equally unclear is how much time Marana's police chief spent working for the bar. In an August 2000 interview, Smith claimed he had only worked at the club "occasionally."
"I worked there maybe eight times total, and only on nights when they were not serving liquor," Smith said.
But one of three MPD employees, who each at different times handled the scheduling of off duty officers, said Smith worked for the nightclub "30 or 40 times" before the end of 1999.
"He said eight times? No way. One of the biggest problems we had scheduling was that the chief was constantly bumping other officers off the list so he could work out there," the employee said.
The employee, as well as several other of the 12 current and former MPD employees interviewed for this story, feared retaliation from Smith and requested anonymity.
Four police officers who had worked with Smith at New West/Gotham allege he removed his police chief insignia while working at the club. Other MPD sources said it was common knowledge that Smith didn't want anyone to know he was working for a nightclub.
"What the Chief does when he works off duty at the West is to pull off his chief's bars because if anyone complains about him, it can't go anywhere except to the mayor," an officer who worked with Smith at the New West/Gotham said.
"He also took them off because he knew he wasn't supposed to be out there. He's the chief of police, the top law enforcement in the town, and that's a really bad perception to have him being the paid employee of a bar where we have all these crimes being committed," said an ex-MPD officer, who also shared duties with Smith at the bar.
According to off duty scheduling records for the New West/Gotham obtained from the MPD, Smith's name appeared 21 times on the schedules between June 1, 1999 and Sept. 18, 1999.
If Smith actually worked the nights he was scheduled, and assuming he worked the average five hour shift at New West/Gotham, he would have spent 105 hours at the club and been paid as much as $2,100 by the New West/Gotham's owners that summer.
During that period, Smith was usually scheduled to work on Mondays and Wednesdays when the bar's summer teen nights occurred and alcohol was not served.
Smith's salary as Marana's police chief was $58,273 in late 1997 when the off-duty work started at the New West. He's currently paid $79,153, according to town records.
Despite Smith's own statements in the August 2000 interview that he only worked non-alcohol events, MPD documents show he was scheduled to work nights when alcohol was served. Three MPD officers confirmed Smith worked several nights with them when alcohol was served at the bar.
One event Smith was scheduled to work when alcohol was served was a concert by rock star Ted Nugent Aug. 29, 1999. The outdoor event resulted in a barrage of noise complaints phoned into MPD dispatchers by citizens living near the nightclub.
Smith may have worked more hours than the MPD documents indicate. Some off duty work records were not released by MPD under the public records request filed by the Northwest EXPLORER, including work schedules for late 1998 and the winter months of 1999 shortly before Hamilton died at the club.
In June 1999 alone, officers filled 120 shifts at the New West. While some shifts were shorter than others, the average 5 hour shift would have meant police officers spent 600 hours at the bar and would have been paid a total of $10,800 in a single month.
With the exception of a few days officers spent working at a Bank One branch, a road construction site and a homeowners association clubhouse, the New West/Gotham was the only other business to ever pay for the officers' off-duty services, an MPD public information officer said.
Smith's decision to have MPD work for the nightclub was at odds with the policies of police departments nationwide that don't allow officers to work for companies who derive most of their income from the sale of alcohol. Some of Smith's ranking officers also objected to the off duty work.
A 79-page memo from the MPD's Office of Professional Standards, a three-person department within MPD created to develop policies for the department, raised the issue directly with Smith more than three months before town officials ordered an end to the off-duty arrangement with the bar on nights when liquor was served.
"The Marana Police Department may be engaging in off-duty employment which could constitute a conflict of interest and bring discredit to the department," the memo began.
The Sept. 28, 1999 memo cited research that showed almost all police departments in the region forbid police officers to work off duty at establishments that gain the majority of their income from the sale of alcohol; noted the work at New West/Gotham conflicted with MPD and town of Marana policies concerning off-duty employment and conflict of interest; and detailed court cases where police departments in other states that did work off duty at bars had become embroiled in lawsuits and allegations of corruption.
"When (the memo) was presented to (Smith) he read it briefly and said 'you've presented me with a problem' and kind of tossed it aside. He never took any action on it at all," said a former MPD employee and member of the OPS staff that drafted the memo to Smith, adding that supervisors and officers had informally brought up the conflict of interest to Smith "months" before the memo was drafted.
Smith did not release the memo to the Northwest EXPLORER under a public records request filed with his office shortly after Hamilton's death in January 1999.
In an August 2000 interview, Smith again denied knowledge of the memo's existence, until a reporter asked an OPS sergeant in Smith's presence about the document. The sergeant produced the memo for the Northwest EXPLORER.
The liquor license for the Marana New West/Gotham is held by Bond, who reportedly spends the majority of his time in Albuquerque, NM, managing the Midnight Rodeo/Gotham, one of three bars Bond is co-owner or manager of.
InfoUSA's U.S Business Directory lists Dellheim as the president of Tucson Entertainment, the company that owns the Marana nightclub, as well as the vice-president of finance, vice-president of investor services, vice-president of marketing and Tucson Entertainment's purchasing agent.
In addition to providing police officers to work for the New West/Gotham, Smith and his top command officers met frequently with Dellheim, Bond and club manager Robert "Rob" Perez, according to MPD officers and documents obtained from the department.
Dellheim estimated he had met with Smith "between a half dozen and a dozen times since 1997" but could not recall if any of the meetings occurred during the MPD's investigation of Hamilton's death.
Dellheim said he met with Smith on several of those occasions to discuss arrangements for the off-duty work and concerts.
Bond did not return phone calls seeking comment.
Perez managed the New West/Gotham until last year and was among the bouncers who struggled with Hamilton the night he died. Perez said in interviews with detectives he was the first to tackle Hamilton in an attempt to restrain him.
Conklin, the bouncer who said he watched the altercation from a doorway, told detectives Perez administered a brutal beating to Hamilton, assisted by the other bouncers, and later tried to coordinate the bouncers' and other employees' statements to police.
Perez told detectives he never struck Hamilton, but said he tackled him to the ground and was lying across Hamilton's upper torso when Hamilton quit struggling and urinated.
Despite Bond telling an EXPLORER reporter in May 2000 that Perez "had moved on to better things and no longer works for New West," Perez was recently managing Bond and Dellheim's New West/Gotham in San Bernardino, Calif., a job he reportedly assumed a few months after Hamilton's death, according to a San Bernardino police spokesman.
Perez could not be reached for comment.
Smith's appointment calendar, obtained by a public records request, is peppered with references to the New West/Gotham.
Most of the meetings are scheduled during Smith's office hours in the months prior to Hamilton's death, including Aug. 20, Oct. 13, and Nov. 8 of 1999.
Just days before Hamilton died, Smith sent some of his highest ranking officers, including Lt. Richard Salazar, Lt. Bruce Thomas and Sgt. Richard Vidaurri to the New West/Gotham on December 21 1999 to meet with Bond, Dellheim and Perez to work out the club's security plans for New Year's Eve.
Salazar would later quit the MPD a few months after Hamilton died to start his own private investigation agency. One of his clients was the New West/Gotham, for which he provided off-duty corrections officers to check identification cards and do weapons searches at the entrance, Salazar said in an November interview.
The same MPD supervisors, plus Sgt. Joe Carrasco who was later promoted to a commander position in the department, also met with Dellheim and Perez to inform them of gang threats of a drive-by shooting at the club that the Marana Police had learned of through a state gang task force, according to documents obtained from MPD.
"I was always uncomfortable when I was sent to the meetings," said one MPD supervisor, "I hated it. I hated going to those things with Kirby (Bond) and Dana (Dellheim.) You can tell they're like shysters. We shouldn't have had anything to do with it."
The club's owners were also informed Dec. 29 of the town manager and council's decision to temporary suspend MPD's off-duty work at the New West/Gotham.
Marana Town Manager Mike Hein said the officers were forbidden to work at the New West/Gotham on nights when alcohol was served because of the amount of calls for police assistance being generated by the club and concerns over insurance liability.
At a January 2000 town council meeting, Bond requested the officers be allowed to work "teen nights" and other events at the New West/Gotham when alcohol was not served. Smith also stood before the council at the meeting to express his support for Bond and Dellheim's club. The council voted unanimously to allow the officers to return to work at the bar on the few nights when alcohol was not served.
While there are no entries in Smith's calendar indicating he met with anyone from the New West/Gotham during the criminal investigation, three MPD employees said Smith was in contact with Piccarreta "several times" during that period.
"He was leaking information about the (Hamilton) case to Piccarreta like crazy. Information was going right out," said an MPD supervisor who worked closely with Smith at the time of the investigation.
"Everyday it was something new," one of the four detectives assigned to the Hamilton case said of the information reportedly being leaked to Piccarreta.
A third high-ranking officer said he arrived at MPD headquarters on one occasion and saw Smith meeting with Piccarreta while detectives were still investigating Hamilton's death.
"Afterwards he was like bragging about it. He said, 'hey guess who was just here," the officer said.
Even Hamilton's mother, Toni Hamilton-Harper, said the detectives told her they were concerned about sensitive information being released during the investigation.
"The detectives apologized to me and told me information was being leaked," said Hamilton-Harper. "They didn't tell me where the leaks were coming from, only that they were trying everything they could to stop them."
Piccarreta reiterated that he did not want to take the time to check his files or notes from the case, but no "inappropriate" information was given to him by Smith.
"Well, I know that I met with him. But I don't even know how many times. I've got a hunch we're talking about maybe a couple of times. But in terms of what day?" Piccarreta said.
When asked whether Smith provided him with any information at all about the Hamilton case, Piccarreta said:
"He didn't provide me with any secret information. I don't know whether we had discussions. So when you say information, you know, information can be something like 'when are you going to wrap this thing up so I can, you know, hear from the county attorney.' I'm not saying there wasn't something like that. But I know there was nothing that was not either public or anything that was inappropriate."
Three police officers told of an intense argument that occurred between Smith and some of the detectives early on in the Hamilton investigation. One of the officers described it as Smith "pressuring the detectives to hurry up and declare a cause of death" in the case.
"One of the detectives just turned to him and said 'Chief, we're not the (Office of the Medical Examiner) and we can't declare a cause of death," the officer said. "But he just kept pressuring them to get the case closed."
When asked what his reason for meeting with Smith was, Piccarreta said:
"I don't even know what we discussed. I remember my concern was not the criminal case, because that was a pretty easy case. I had a larger concern about the status of the problems with the New West, you know, what we do to minimize those problems. I was more concerned with the liquor issues than Westyn Hamilton."
According to his calendar, Smith was scheduled to meet with Piccarreta at 9:45 a.m. on April 4, 2000 - the day Deputy Pima County Attorney Ken Peasley announced in a memo sent to Pima County Attorney Barbara LaWall, Smith and Piccarreta that no charges would be filed as a result of Hamilton's death. Another memo from Peasley three days later would make the first public announcement to the media and to Hamilton's family April 7, 2000.
According to records obtained from the county attorney's office and MPD, Piccarreta's actions on the behalf of the New West/Gotham involved a flurry of contacts with witnesses, Peasley, Smith and the MPD detectives during the three month criminal investigation.
In a letter dated Jan. 3, 2000, the day after Hamilton died, Piccarreta advised Detective Sgt. Dan Bourland, who was in charge of the detectives investigating the death, that he would be representing the New West/Gotham.
"I would request that if any information is needed from the company or its employees, any such arrangements be made through this office," the memo said.
Piccarreta advised Peasley Jan. 6, 2000 he would be representing the New West/Gotham.
"It is my view that there was no violation of law. However, if, after your review of the evidence, you conclude that there is a possibility that the company or any of it's employees violated the criminal law, I would request an opportunity to discuss this matter with you prior to any final decision being made as to the issuance of a complaint or presentment to the grand jury. I look forward to discussing this matter with you," Piccarreta said.
On the same day Piccarreta wrote to Peasley, the Pima County Attorney's Office coincidentally received an anonymous letter in the mail addressed to LaWall. The note was scrawled in a wavering, and apparently disguised, handwriting:
"West Killing," the letter was headed. "We need independent investigation. Marana P.D. chief met with West and its atty (sic) - update on investigation this week!!! Then personally interfered with P.D. detectives with threats. Also holding back file on x-mas beating by West bouncers of other victim who was resuscitated."
The letter was filed in the county's investigative file of Hamilton's death. Its author was never identified.
The "x-mas beating" was apparently in reference to Kenneth Keogh, another man who stopped breathing after fighting with New West/Gotham bouncers on Christmas Eve, just a little more than a week before Hamilton died.
Keogh and his two brothers, all Irish nationals, became involved in a scuffle with bouncers inside Gotham Dec. 24, 1999, and Keogh had allegedly "head butted" one of the bouncers.
According to witness statements filed with MPD, Keogh was being directed outside the club with his arms forced above his head by a bouncer who held him from behind in a "full-Nelson" hold.
Witnesses, including some who expressed their outrage in their police statements, claimed another New West/Gotham employee kicked the legs out from under Keogh, who then fell face-first into a concrete floor with the weight of the bouncer who was restraining him on his back, and his arms pinned up in the air, thus unable to break the fall.
Keogh reportedly quit breathing after slamming into the floor, but was resuscitated by paramedics. The Keogh brothers declined to press assault charges because they said they were expected to board a return flight to Ireland the next day.
Two days before the anonymous letter arrived at the county attorney's office, a rookie Marana police officer on routine patrol on the afternoon of Jan. 4, 2000 documented a "reenactment" in the nightclub's parking lot involving the employees involved in the struggle with Hamilton, and a man he believed to be Piccarreta.
The officer's observations were made three days before the bouncers involved in the fight with Hamilton were interviewed by MPD detectives, and five weeks before the Pima County Attorney's Office would conduct a similar reenactment that contributed to a prosecutor's decision not to file charges against them.
The officer, Al Woods, was the live-in boyfriend of Melissa Aragon, a state liquor investigator who had worked cases involving the New West/Gotham. Smith had aggressively tried to hire Woods and Aragon as MPD officers.
Woods would later be fired by MPD for conducting "unauthorized liquor investigations" at the New West/Gotham and other Marana bars.
Woods had worked off duty at the New West/Gotham, and like many MPD officers, was on a first name basis with its employees.
"I observed Rob, Mark and approximately two other New West/Gotham employees reenacting the death of Mr. Westyn Hamilton. Also present was a male subject approximately 5' 9" and 175 lbs. wearing dress clothing which I believed to be their attorney. This subject is the one that everyone else appeared to be directing their comments to. Also there was approximately 10 other employees standing around including Alan, believed to be one of the managers," Woods wrote.
In his police report, which under type of incident, he wrote "death, unknown causes," Woods stated the employees reenacted the scuffle for at least the 15 minutes he observed them. He noted two people, apparently curious about the crowd, were asked to leave when they approached the reenactment.
"I'm not going to discuss what we did," Piccarreta said, when asked about the employees reenacting their actions before the interviews. "But let me tell you, when you represent an entity, you thoroughly find what happened, how it happened and many times that includes 'show me' … I think I would have been incompetent if I didn't have the people involved in the case demonstrate for me, when I'm representing the entity, and trying to figure out if any individuals did anything inappropriate that night."
On Jan. 7 and 10, 2000, the Marana detectives conducted interviews with the bouncers involved in the struggle with Hamilton, other New West/Gotham employees who witnessed the altercation inside the bar, and those who arrived moments after Hamilton died behind the bar.
Piccarreta would sit in on all the employees interviews and would be allowed by MPD to ask the bouncers questions about their actions on the morning Hamilton died.
At the beginning of each of the interviews with the employees, Detective Randi Davis, one of the Marana investigators, would read each employee their Miranda rights before questioning them.
Davis would then follow the familiar "you have the right to remain silent…" warning with an additional legal advisement, which according to MPD transcripts of the interviews, was typically worded as:
"One other thing that we have to cover. Mr. Piccarreta is here representing the New West as a corporation or company, an entity. He is not representing any of the employees per se. He is not representing you. Therefore, if you want independent council, you also have that right to have an attorney of your choosing."
Despite being potential suspects in Hamilton's death, all of the bouncers involved in the struggle readily waived their right to have any attorney present other than Piccarreta, according to MPD transcripts of the interviews.
In the transcripts, Piccarreta often introduced questions toward the end of the interviews which tended to bolster the bouncers' assertions that they only restrained Hamilton. But on some occasions, the bar's corporate legal counsel intervened early and frequently when questioning by the detectives took a hard turn.
For example, in an interview with Pago Lemalu, one of the bouncers involved in the final struggle with Hamilton, Piccarreta objected to Davis' and Detective Terry Evans' questioning after Lemalu gave answers which conflicted with a statements by other bouncers.
Lemalu claimed bouncer David "Scott" Thompson held one of Hamilton's legs while he held the other. Thompson told investigators he didn't participate in the final struggle with Hamilton
"Okay. So somebody is being less than truthful," Davis asked.
"Now wait a minute, that's not fair, that's really unfair," Piccarreta said.
Toward the end of the same interview, which was Lemalu's second interview by police, Piccarreta pointed out that the bouncer's first statement to detectives on the morning Hamilton died were given at 4:30 a.m., and the early hour may have effected the answers he gave.
Evans quickly established that the bouncers were required to pick up trash in the bar after it closed at 2 a.m., and that they normally didn't leave the club until 4:30 a.m., according to the MPD transcript.
One New West/Gotham employee interview Piccarreta did not have the opportunity to sit in on was Conklin's, the nightclub employee who contacted Marana detectives and told them his fellow bouncers beat Hamilton to death.
Conklin stressed in his initial phone call to MPD Detective Tim Brunenkant Jan. 6, 2000 he did not want Piccarreta involved in his interview.
"I'm just tired of lying and my job was threatened, you know? They gave me the lawyer's card to speak with the lawyer first but he's going to have me lie," Conklin said.
"I thought Conklin was real credible," one of the detectives working the Hamilton case said. "He's a squirrel, a real squirrel, but that doesn't mean he didn't see what he saw and that he's not credible."
Conklin refused several requests for interviews.
Conklin's credibility would take a beating over the three months and he would ultimately refuse to cooperate with investigators.
"Conklin pulled out because he was scared these bouncers were going to have his ass. He was pissed off at us because he thought we told Piccarreta that he was talking to us. We told him "What? Are you crazy? We're not going to tell Piccarreta that we have an eyewitness who works for the bar and (who) is talking to us.' We didn't tell Piccarreta," the detective said.
When a reporter asked if Smith was the one to divulge Conklin's statements to Piccarreta, the detective simply smiled and said "you tell me."
Piccarreta said he simply had a private investigator locate Conklin for him.
"I don't think there's any magic to it (with) these guys. There's plenty of public record, or you get tips, or you find out and run them down," Piccarreta said.
As to how Piccarreta knew Conklin was providing eyewitness testimony to MPD, Piccarreta said "I'm sure I sent a freedom of information request."
Randy Downer, a private investigator working for Piccarreta, called Conklin at his home at 4:45 p.m Feb. 25, 2000 and tape recorded their conversation, according to transcripts of the call obtained from the county attorney's office.
Conklin indicated to Downer that he had spoken with Piccarreta earlier in the week and somehow the Marana detectives had found out Conklin was talking to the bar's lawyer.
"So the police turned around and zoomed right over here and said 'Why the hell you talking to him? What are you saying to him?' You know, 'stay away' and all this stuff," Conklin told Downer. "They only have a case with my testimony … how would they even know that I went to him? He was the only person, he had to have said something for the police to know that I called him."
"I'm not so sure what the police are telling you is accurate," Downer said to Conklin.
Conklin told Downer he felt the Marana detectives were trying to "intimidate" him, and expressed his reluctance to be a witness in the case.
"I told (the detectives) when I started off, I said 'Hey you know if it helps, that's fine. But I don't want to be a witness.' But now they say I have to be a witness … I'll just plead, keep pleading the fifth. I'll be a hostile witness …," Conklin said.
"I asked Piccarreta over the phone (to) keep me from testifying," Conklin said. "And what he did was he went straight to the police and the police scared me."
Downer asked Conklin several questions that could further poke holes in the bouncer's credibility, including asking him if he was "just trying to give (the detectives) what they wanted?"
"No, I hate cops. I hate the police," Conklin replied.
Downer questioned the already skittish witness about an assault Conklin had been charged with three years earlier and a four year-old charge that the bouncer claimed had been dismissed.
Downer: "Let me ask you something dude."
Downer: "Did you get popped for assault?"
Conklin: "No, why?
Downer:"Are you Richard James Conklin?"
Downer: "Didn't you back in '97?
Conklin: "Oh, yeah. For what?"
Downer: "Get charged with assault knowingly causing injury?"
Conklin: "Oh, no. Oh, is that for school? Was that at Pima (Community College)? I spit at a girl and it missed."
Downer: "Okay, there's … it looks like two cases. One …"
Conklin: "No, I was arrested for (domestic violence) threats …"
Downer:"Assault, knowingly causing injury, back in a '96 case … with the Sheriff's Department, and oh, I see Pima College in '97…"
Despite his reluctance to be a witness and Downer bringing up his unrelated criminal history, Conklin told Downer twice during the phone call that he saw the New West/Gotham bouncers beat Hamilton.
Downer: "… I've spoken to a lot of other people out there and no one else told me they were beating him up."
Conklin: "Yeah, well, you know, after they beat the s--- out of him, did you know Rob was going up and down the runway telling everybody what to say in their statements? Did you know that?," Conklin said to Downer.
Conklin told Downer he was "traumatized" by what he had seen and was "crying almost everyday."
At 5 p.m the same day, just a few minutes after his first call, Downer telephoned Conklin again and the bouncer reiterated his reluctance to testify:
Conklin: "It's just it's ruining my life and I was under the assumption that when I did it I didn't have to testify, you know?"
Downer "Well, why were you under that assumption?"
Conklin: "Well, because the way that (the detectives) were acting to me. You know, when I went down there, I didn't think … because they videotaped me and stuff … and you know, I just don't want my name in the paper. I don't want to be on the news, I don't want my name public record and all that stuff, you know? I wasn't even involved."
Downer: "Well, you've told the police that you think they beat the s--- out of him so … "
Conklin: "Well, yeah. That's what I saw. I didn't say that."
Downer: "What did you say?"
Conklin: "Well, you know, I just gave them what I saw. And whatever assumptions they're coming up with …"
Downer: "But they're assuming you saw criminal activity and I'm not so sure you did. I can't tell from what you've told me so far."
Conklin: "Oh well."
Downer told Conklin he would contact Piccarreta and try to get back with Conklin the next day.
Downer refused to be interviewed for this story, and referred questions to Piccarreta.
Piccarreta said he was unsure if he ever met with Conklin.
"I don't remember meeting him face-to-face. If I went through the file … but I don't have a vision of ever meeting Mr. Conklin," Piccarreta said.
Conklin said in a sworn deposition he gave March 5, 2001 for a civil suit filed by Hamilton's family against the New West/Gotham that he never met with Piccarreta.
An attorney then asked Conklin if he had ever spoken with Piccarreta.
"Spoken with him? I could have spoken with him once on the phone, but I'm not sure. But I know I never met Mr. Piccarreta," Conklin said, according to a transcript of his deposition.
On March 1, 2000, Piccarreta forwarded transcripts of Downer's phone conversations with Conklin to Peasley at the county attorney's office and to two of the detectives investigating the Hamilton case. He would also include Conklin's personnel file from the New West/Gotham and a memo:
"Last week I requested my investigator contact James Conklin to determine what, if anything, he had to add to the factual scenario surrounding Mr. Hamilton's death," Piccarreta wrote. "When I briefly talked to Mr. Conklin on the phone, his mode and manner of speaking along with his brief comments, gave me a extremely uncomfortable feeling. I thought that either he was mentally or emotionally unbalanced, on drugs or alcohol, or trying somehow to set me up. I warned my investigator about these potential issues and he tape recorded the interview with Mr. Conklin."
When first questioned by the Marana investigators, Conklin said he did not drink or do drugs. He said the same thing during his deposition for the civil suit, and added he had never received any psychiatric treatment, according to a copy of the deposition provided by sources close to the civil case.
Conklin said in three separate interviews - interviews conducted by the detectives, Downer and the civil suit attorneys - that he was "traumatized" by watching the bouncers beat Hamilton to death.
Conklin was scheduled to be interviewed on March 13, 2000 by Peasley in the deputy county attorney's office in downtown Tucson on March 13, 2000. Evans and Davis sat in Peasley office also awaiting the bouncer, whose testimony could lead to a grand jury indictment.
But Conklin never showed for the meeting. The prosecutor played a tape recording for the detectives of a message Conklin left on Peasley's voice mail March 10, 2000, according to a police report written by Davis.
Through his heavy New Jersey accent and disjointed syntax, Conklin said in the message that he wouldn't be able to meet with Peasley because "I didn't see what I thought I saw" and suggested he needed to see a doctor to "see what's going on in my head," according to a copy of the tape obtained from the county attorney's office.
Conklin was served with a grand jury subpoena at his home by Evans just a matter of hours after he failed to show for his meeting with Peasley, according to a police report by Davis.
But despite the summons, Conklin's testimony would not be heard by a grand jury.
In response to a public records request filed by the Northwest EXPLORER, Deputy County Attorney Paula Wilk said Nov. 1 her office had no record of the subpoena ever being issued for Conklin.
After being provided with a copy of the MPD report indicating Evans had served Conklin with the summons, Wilk was still unable to find copies of the subpoena or any related documents.
After consenting to previous interviews, Peasley did not return calls requesting comment. The veteran prosecutor is currently facing ethics charges before the Arizona Bar for allegedly soliciting false testimony from a Tucson police detective in an unrelated case.
One of the MPD detectives confirmed the subpoena had been served on Conklin, but said Peasley had decided at the last minute not to forward the case to a grand jury.
"(Peasley) did what he could, but Conklin's credibility was gone," the detective said.
Conklin's credibility as a witness would continue to take shots from Piccarreta's office.
On March 20, 2000, Piccarreta would have police reports - dug up by Downer and detailing Conklin's criminal history - hand-delivered to Peasley and the Marana detectives.
"I thought you might find these interesting in assessing credibility," Piccarreta said on the cover sheet of the reports.
The reports showed Conklin being charged with contributing to the delinquency of a minor in 1998 after his stepbrother harbored an underaged runaway in Conklin's home; an assault for spitting at a girl he was in an argument with at Pima Collage in 1997; and two cases of assault and threats involving his live-in girlfriend in 1996.
Piccarreta's involvement with the witnesses was not limited to the bouncers and Conklin. He would later provide documents to Peasley that raised questions about the credibility of another critical witness, a female employee who said one of the bouncers involved in the struggle with Hamilton made incriminating statements to her the following day.
During the same period, the bar's attorney would identify other witnesses he gained knowledge of to the detectives. Those witnesses tended to offer accounts that cleared the bouncers of any wrongdoing. (see related story page 29)
The day after Piccarreta forwarded Conklin's criminal history to investigators, Peasley and the detectives received more documents from the attorney.
"Dear Ken," the cover sheet memo begins. "Enclosed is a document entitled amended statement that was left with my receptionist on March 21, 2000 around 11 a.m. by an unkempt man and woman. I am not vouching for the accuracy of this statement, but since it was delivered to my office, I will forward it."
The statement, notarized and written on a computer, was from Conklin. It was dated March 13, 2000 - more than two months after he told investigators Hamilton was murdered, and a little more than two weeks after Conklin was first contacted by Piccarreta's private investigator.
The bouncer, notably inarticulate in previous interviews and written statements, begins by reasserting in clear and concise language what he previously told the detectives - that he watched from a partially opened door as the other bouncers struggled with Hamilton. But importantly, Conklin changes some of his statements:
" … I thought I saw Steve (Conklin is believed to be referring to bouncer Steve Reyna) punching Hamilton in the back of the head, but Steve was actually trying to position his left hand in a submission hold in a fast motion because Hamilton was struggling to get up. As far as Jason (apparently referring to bar employee Jason Waln) kicking Hamilton while he was down, Jason had his left foot on Hamilton trying to keep him down but Hamilton was strong (sic) pulling up which made Jason's foot keep slipping off, which made it appear Jason was stomping on him," the statement said.
But more importantly, Conklin maintains the other bouncers did strike Hamilton, which conflicts with the bouncers' statements to detectives that they tried to restrain him, and at no time kicked or punched him. Piccarreta too would maintain in memos to Peasley that Hamilton was simply held on the ground until police arrived.
" … Jason lunged forward to help Yeager (apparently referring to bouncer Charles Yaeger) by kneeing Hamilton in the stomach, because at this point Hamilton was becoming more aggressive," Conklin wrote. "I opened the door a little more and noticed (Yaeger) trying to stop Hamilton from struggling by trying to keep Hamilton from moving his arms at the same time Hamilton was fighting with Rob (apparently referring to manager Rob Perez). I saw Rob hit Hamilton, but I didn't see Hamilton hit Rob, but maybe they did when they were struggling."
As for his reasoning for amending his earlier statement to police, Conklin cited the "intimidation" he had described to Downer.
"…(S)ince I went to the Marana police, I have been harassed - Marana police coming over at least four occasions without calling first, staking out my residence on at least three occasions, pounding on my door and yelling causing my wife be frightened. Witnesses also heard the pounding and yelling and aggressively talking with me. After being told by Sgt. Terry (apparently referring to Detective Terry Evans) of Marana police to think long and hard about possibl (sic) involving innocent people, I've come to terms with what actually happened. I don't want to hurt innocent people, so therefore this is an amended statement given to the Marana Police Department and also I felt obligated to give a copy of this statement to Gotham's attorney Michael Piccarreta so he was aware of my situation," Conklin concluded.
By comments Conklin made to Downer, refusing to meet with the county attorney's office and later amending his statement to police, Conklin had provided Piccarreta with enough ammunition to discredit him as a witness.
"Mr. Conklin wasn't really involved in this incident," Piccarreta told the Northwest EXPLORER in April 2000. "It's doubtful he saw anything and he injected himself in to it and then he gave multiple statements that conflicted with what he initially said."
Piccarreta was asked in an interview last month whether he believed Downer contacting Conklin had anything to do with the bouncer amending his statement.
"No … you know, I thought Mr. Conklin was an odd duck. I remember thinking 'you better tape record any conversations with Mr. Conklin' because he was just a strange person," Piccarreta said. Piccarreta also doesn't believe there was any problem with contacting the police department's primary witness in a potential criminal case against the bar's employees.
"I would hope that we would contact every witness possible if I'm doing an investigation. Even if it's at the same time as the police investigation. You do it. And if you don't do it, you're not doing your job," Piccarreta said.
On April 5, 2000, Pima County Medical Examiner Bruce Parks made public his conclusions drawn from Hamilton's autopsy that Hamilton had died from restraint asphyxia.
When being deposed for the Hamilton family's civil suit Nov. 1, 2000, Parks characterized restraint asphyxia as a little understood medical phenomenon in which a victim who is being restrained - and who is usually agitated or stressed and is often under the influence of drugs or alcohol - suddenly stops breathing and dies.
No drugs were detected in Hamilton's system during the autopsy, and his blood alcohol level was just slightly over .10, the state's legal definition of intoxication at the time.
On April 4, 2000, Peasley faxed to Smith his decision not to criminally charge the bouncers. Smith was scheduled to meet with Piccarreta that same morning, according to Smith's appointment calendar.
"Mr. Hamilton's death is both sad and tragic. However this case does not meet our charging standards and therefore no criminal charges will be filed in connection with this case," Peasley said in the fax.
Peasley cited discussions with the MPD detectives, various reports, witness statements, the autopsy, and the "reenactment" of Hamilton's death as influencing his decision not to level charges in the case.
What role did Conklin's partial recantation play in Peasley's decision not to prosecute?
"It had something to do with it. He had made some statements and then at one point began recanting those statements. He recants to MPD and he recants to Mike Piccarreta … we do prosecute in cases involving recantations. Just because he recants does not mean the case is dead. But if you look at everything besides Conklin, there's not anything that would indicate anything inappropriate on the part of the bouncers," Peasley said in an interview in April 2000.
With the case coming down to essentially the words of the bouncers involved in the final struggle with Hamilton against Conklin's, did Peasley consider that Conklin may have been influenced or intimidated into becoming a hostile witness?
"That was considered," Peasley said. "Obviously, that has to be considered if you have someone who recants earlier statements. You have to wonder why. Either the the earlier statement wasn't true or the person just wants to get out of the mess. If the earlier statement was true, something has to be prompting the change. It doesn't take a rocket scientist to see if the witness was intimidated. Was it considered? Yeah," Peasley said.
So why didn't Peasley present Conklin's testimony to a grand jury and let it decide if he was influenced or if he was a credible witness?
"Conklin's testimony wasn't automatically discarded. If a prosecutor looks at a case and in their mind this is a case where you can't reasonably expect to get a conviction at trial, I think that it's my responsibility to make a decision and not to put it off on someone else," Peasley said.
And as for the police department's conflict of interest in the case, Piccarreta made sure Peasley was aware of MPD's relationship to the New West/Gotham in a six page memo he sent the prosecutor March 1, 2000.
After pointing out the bar had a "no punching" policy for it's bouncers, Piccarreta raises the specter of the police department's relationship with the bar as further reason why the bouncers should not be charged. The memo was also sent to Davis and Evans of the MPD:
"Equally, if not more important, was the level of association with and participation by members of the the Marana Police Department in maintaining security on the premises. For the last two and one half years, New West has employed virtually the entire Marana police force, including the chief, detectives, sergeants and patrol officers on an extra duty basis. New West typically employed between four and ten members of the Marana Police Department for added security two or three nights a week plus concert events.
"The same procedures that were employed with Mr. Hamilton have been followed over these two and one half years. Members of the Marana Police Department have participated in almost every (Piccarreta's emphasis) restraint that has been employed at New West. There has never been any suggestion from the Marana Police Department that the force employed in the restraint procedure was excessive or improper in any manner. Obviously, no other deaths or significant injuries have ever resulted from the numerous times in which the the restraint procedure was followed.
"Furthermore, the staff at the New West regularly meets with members of the Marana Police Department to discuss security-related issues. In none of these meetings has there ever been any suggestion that the restraint procedures were improper …," Piccarreta wrote to Peasley and the detectives.
Some of the MPD officers said they expected the police department's work for the bar would be used as leverage by Piccarreta to help clear the New West/Gotham in the Hamilton case.
"That's exactly what happened," said one police supervisor, noting that employees had warned Smith well before Hamilton died about the conflict between the bar's interests and the police department's. "It just blew up. We never should have been out there to begin with."
Despite warnings from his own employees and even Piccarreta raising the issue of the police department's conflict, Smith continued to support and assist the bar.
In the months following Peasley's announcement that the bouncers would not be charged, Smith would write a letter defending the New West/Gotham to the state liquor board, which was considering disciplinary action against the bar's liquor license; ask the Marana town council to allow his officers to continue working off duty at the nightclub; order his officers to conduct additional patrols around the bar after the council ordered most of the off-duty work to cease; and continue to offer advice on security matters.
On April 14, 2000, just a week after the county attorney's office publicly revealed it would not file criminal charges against the New West/Gotham bouncers in the death of Westyn Hamilton, Smith had scheduled on his computer a lunch date with Bond.
On June 6, 2000, Smith sent a letter to state regulators who were considering disciplinary action against the New West/Gotham. A spokesman for liquor control said the range of actions being considered included the revocation of the bar's liquor license.
"I am writing this letter because of my belief that revocation of the liquor license at the New West/Gotham in Marana is not necessary," Smith wrote to the director of the state's liquor control board on June 6, 2000. "The safety of the public and their clientele is not at risk."
Marana Mayor Bobby Sutton Jr. also wrote a letter of support on behalf of the nightclub to Arizona's liquor control director on June 6, 2000, praising Bond and Dellheim's character.
In July 2000, the bar had it's liquor license suspended by state liquor control for one week and the owners were ordered to pay a $12,500 fine to settle nine counts of liquor law violations. The club stayed open during the suspension and served non-alcoholic drinks.
Less than seven weeks after Smith's letter to the liquor board defending the club's license and attesting to the public's safety, violence began spilling from the club again.
On July 26, 2000, gunfire was exchanged between two vehicles traveling on Interstate 10 near Grant Road. Leonardo Peralta, a 36-year-old motorist not involved in the dispute, was caught in the crossfire and died after being shot in the head. Tucson Police Department investigators said they believe a fight that precipitated the gunfire originated at New West/Gotham.
On July 4, gunfire again broke out in the parking lot of the New West/Gotham. Jesus Antonio Montano, 24, was shot to death, and two other men suffered gunshot wounds.
On Oct. 17, the gunfight erupted that sprayed 40 rounds in the nightclub's parking lot and the surrounding neighborhood. A week later the owners shut down the problem-plagued Gotham portion of the bar complex. The closure of the New West followed two and a half months later, as liquor regulators began demanding a change in management of the club.
More than eight months after the Office of Professional Standards alerted Smith to the conflict of interest the off-duty work at New West/Gotham posed, the police chief instituted a policy concerning off-duty work at bars. No policy had specifically addressed the issue before. The new policy, implemented May 26, 2000, reads:
"Extra duty employment requests from any business or location where the primary focus is the sale of alcohol beverages may be approved by the chief of police on a case-by-case basis."