Compromised Conviction?

Death-row inmate Scott Nordstrom maintains he's innocent and plans an appeal

Scott Nordstrom has been eagerly waiting for his day in court. However, that day will not come this month.

Nordstrom, 41, arrived in Pima County Superior Court last week looking more like a lawyer than an 11-year resident of Arizona's death row. Nordstrom was one of two defendants convicted and sentenced to death for the brutal 1996 slayings of six people at the Moon Smoke Shop and Firefighters Union Hall. His case returned to Superior Court for resentencing after a 2002 U.S. Supreme Court ruling required juries, not judges, to impose death sentences.

Long before the jury was seated, Nordstrom suspected he was going back to death row.

"It's a foregone conclusion," he said Friday morning, Aug. 21, during an interview at the Pima County Jail. (Resentencing proceedings were still underway as of the Tucson Weekly's press deadline.)

Since the day he was arrested, Nordstrom has proclaimed his innocence. Back then, he said he trusted the system to do the right thing and determine that his main accuser—his younger brother, David—was the real killer. Now, Nordstrom said, he is convinced that newly discovered evidence will prove his innocence.

"The way that I can really prove it to you is this right here," Nordstrom said, patting a stack of papers that's the basis for his upcoming appeal.

In exchange for testimony against his brother and co-defendant Robert Jones, David Nordstrom claimed that he was the getaway driver in the May 30, 1996, Moon Smoke Shop robbery in which Thomas Hardman and Clarence O'Dell were slain, but that he wasn't involved in the June 13, 1996, Firefighters Union Hall robbery in which Maribeth Munn, Carol Lynn Noel, Arthur "Taco" Bell and Judy Bell were slain.

Nordstrom's claims of innocence include allegations that his brother's so-called "air-tight" alibi was anything but; that David Nordstrom was courted by prosecutors—including being let out of jail for a steak dinner and a visit with his then-girlfriend; that Scott Nordstrom's alibis weren't investigated adequately by his attorneys; and that prosecutors knew David Nordstrom lied.

Prosecutors declined to be interviewed, but they, as well as Judge Richard Nichols, have noted that Nordstrom's convictions haven't been overturned, and the only matter before them right now is the sentence.

"Once he was found guilty, the remaining question is the degree of his participation, not whether he participated," senior prosecutor Rick Unklesbay has said.

Nordstrom's current attorney, David Alan Darby, also declined to be interviewed. But defense investigator Chuck Laroue, who was an ardent death-penalty supporter when he worked in the Pima County Attorney's Office, said Scott Nordstrom is telling the truth.

"Every time I hear somebody say, 'I'm innocent,' I said, 'Yeah, right,'" Laroue said. "But as I started investigating this case, I very quickly saw that there were serious problems with the way this case was handled, from the police to the prosecutors. I am shocked and amazed to know that my former colleagues were engaging in this disgusting behavior, hiding critical evidence, basically cheating. Never in my career have I been so firmly convinced that an innocent man is being railroaded."

When Nordstrom was convicted, Pima County had the highest per-capita rate of sending defendants to death row in the nation. Prosecutors were given carte blanche in capital cases.

"An unlimited budget—anything they wanted," Laroue said.

Meanwhile, court-appointed defense attorneys were limited in what they could spend. Nordstrom said he was often told that there were no resources to investigate his innocence claims.

Pima County prosecutors also had, in the words of former Arizona Supreme Court Chief Justice Stanley Feldman, a "win-at-all-costs" attitude when it came to high-profile cases. In those days, many of the county's murder cases were prosecuted by Kenneth Peasley and David White. Peasley was disbarred in 2004 after the Arizona Supreme Court found that he solicited perjured testimony from a police officer in the 1992 El Grande Market triple slaying.

White, who died in 2003, was blamed posthumously for withholding hundreds of pages of documents that could have helped the defense for a Tucson woman, Carolyn Peak, who was charged with killing her husband. When the documents were found, Pima County Attorney Barbara LaWall dropped Peak's murder charge.

Nordstrom, a high school dropout who has accumulated a jailhouse education in law, said White committed similar misconduct in his case. With Scott Nordstrom's conviction so heavily dependent on David Nordstrom's testimony, White admitted to jurors that the star witness was a liar—except when he was on the stand. David Nordstrom's alibi was that he was on probation at the time and under electronic monitoring, which White said was infallible.

Donna Boykin, whose mother-in-law was slain at the Union Hall, gave a sworn statement this month saying she told White before the trial that electronic monitoring could be beaten based on her own experiences. Boykin turned over records to show she was "out of pocket," or not at home when she was supposed to be, and the monitor failed to detect her slips.

"In June 1997, I initiated contact with the Pima County Attorney's Office because I heard the prosecution was basing its case against the alleged defendants on what (prosecutors) claimed to be solid evidence that their key testifying witness could not have been involved in the Union Hall slayings," Boykin said in her sworn statement.

"I knew the electronic monitoring was not accurate," she said, "and that I had information to prove it."

Boykin, who was angry that David Nordstrom received such sweet plea deal, spoke to White's investigator, Steve Merrick. Merrick's reports weren't discovered by Nordstrom's defense team until LaWall initiated an "open-file" system that allowed defense attorneys to examine prosecutors' files in wake of the Peak case.

David Nordstrom got a four-year sentence and reportedly lives in Sacramento, Calif.

Their mother, Cynthia Wasserburger, said David has threatened her over the years, because she remains steadfastly in Scott's corner.

"I will never say Scott is or was a saint," she said. "He's done bad. He's been bad. ... But there's no way—and I believe that the evidence is there to prove it—that he did what they're saying he did."

Scott Nordstrom said he is confident he will be able to prove his innocence.

The U.S. Supreme Court recently granted an evidentiary trial for Troy Davis of Georgia, who maintained his innocence in the 1989 slaying of a police officer. Justice John Paul Stevens said the risk of executing a potentially innocent man "provides adequate justification" for a new hearing.

"If the justice system's purpose is justice," Scott Nordstrom said, "we will prevail."

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