PHOENIX — A man convicted of the 2008 murder of a 62-year-old disabled Tucson woman may get the chance for a new trial.
In a ruling Friday, the Arizona Supreme Court said that Luis A. Vargas had the right to allege that a series of acts by prosecutors effectively amounted to misconduct. The justices rejected arguments by the state that he waived the right to make those arguments because Vargas has not argued that each of the 11 separate instances constituted fundamental error.
But the ruling does not free Vargas. Instead, it sends the case back to the state Court of Appeals to determine if there was “pervasive prosecutorial misconduct” that entitles him to a new trial.
The case was prosecuted by then Deputy County Attorney Jonathan Mosher, who is now running for the job of county attorney in Tuesday’s Democratic primary.
On Friday Mosher’s campaign spokesman released the following statement:
“It would be inappropriate for Jonathan to comment on the substance on the ruling. Kay Read’s family has been through a difficult struggle since she was murdered 12 years ago. No court has ever found evidence of misconduct in this case. We have faith that the appellate court will uphold the conviction and reject these claims for a second time.”
Vargas was convicted last year of first-degree murder, burglary, kidnapping, arson, vehicle theft and credit card theft following the disappearance of Kay Read, a Sunday school teacher who lived on Tucson’s east side.
Police never found Read’s body, who used crutches and leg braces due to childhood polio. But they arrested Vargas after they found her van, which he had attempted to set on fire.
He was sentenced to life without the possibility of parole in connection with the murder and an additional 63¼ years for the other offenses.
On appeal, he argued prosecutorial misconduct.
Among the allegations were improperly presenting the case to the grand jury, discussing precluded topics, misstating evidence in closing arguments and introducing hearsay through improper procedures. But the appellate judges rebuffed the claim, saying he had failed to successfully argue misconduct for each of the specific actions.
Justice William Montgomery, writing for the unanimous court, concluded that was not necessary, saying the allegation of the cumulative effect of those acts is sufficient to seek appellate review. And that, the justice said, occurred here.
“He cited specific instances of alleged misconduct in the record, cited authority in support of the claim that misconduct occurred, and argued that, overall, the misconduct denied him a fair trial,” Montgomery wrote. And that, he said, is all the appellate court needs to review the record.
Prosecutors said Read opened the door of her house to Vargas when he asked for help but that he “overwhelmed” her. He had previously spent more than seven years in prison on two unrelated burglary charges.
