 Fernando Almanza
Almanza, who was 49 years old, worked on a ranch in Dudleyville, Arizona, about an hour north of Tucson. K.Q. also worked at the ranch and lived there with her three children.
When the girl first told her mother about being “tickled,” Almanza had been gone from the ranch for about an hour. Later that day, according to a police report, the girl asked her mother if she wanted to know how Almanza had tickled her. She said that Almanza had pulled down her panties. The girl then brushed her hand across her vaginal area. The girl also said Almanza hit her in the back with a shovel.
K.Q. called 911 and took her daughter to a substation of the Pinal County Sheriff’s Office in San Manuel. There, A.W. said that it was painful to urinate. The mother said she saw blood on the girl’s underwear.
A.W. was then taken to Tucson Medical Center. She told a doctor that Almanza pulled her panties down and kissed her on the cheek. She said his fingernails scratched her insides. The doctor wrote that the girl had an abrasion at the base of her left labia minora, in an area that was “fairly well protected” and was consistent with “[s]omebody putting their fingers in her private parts and scratching her.”
Sheriff’s deputies arrested Almanza the next day. He remained in a holding cell for four hours prior to questioning. Although born in Mexico, Almanza had lived in the United States since he was 10 years old. He had hardly attended school, spoke limited English, and couldn’t read English or Spanish. A later court filing would note, “He is easily confused and coerced.”
Detective Randall Snyder questioned Almanza in English, and Detective Luis Vargas asked questions in Spanish and at times relayed Almanza’s responses to Snyder. The officers read Almanza his Miranda rights in both languages, but Almanza appeared uncertain about why he was there. He said in Spanish that he wanted to know what this was all about.
Vargas asked him in Spanish if he understood his rights and wanted to answer questions. Almanza said “No.” Vargas asked, “You don’t want to answer questions?” Almanza responded that he did, and Snyder continued questioning Almanza in English.
At first, according to a transcript of the interview, Almanza denied touching A.W. but then said he had hugged her and kissed her on the cheek. Snyder falsely told Almanza that his DNA had been found on the girl, and Almanza said he had picked A.W. up and carried her with one hand under her butt. He said he didn’t put a finger in her vagina. Snyder asked him a hypothetical question: “If his finger went into her [vagina],” which finger would it have been. Almanza indicated his middle finger.
On November 30, 2011, a grand jury indicted Almanza on sexual conduct with a minor. His trial in Pinal County Superior Court began on September 30, 2013. By then, Almanza was on his fourth attorney. His first two attorneys had withdrawn because of conflicts of interest. His third attorney represented him for only a month. His fourth attorney, Paul Green, began representing him six months before trial. It was Green’s first sexual assault case.
One of Almanza’s previous attorneys had filed a motion to suppress the statements Almanza made to the detectives, arguing they were involuntary because of Almanza’s confusion about the situation and the language barriers. Green did not file any replies in support of the motion, and after a brief pre-trial hearing, Judge Boyd Johnson denied the motion to suppress.
In his opening statement, Deputy Pinal County Attorney Matthew Long told jurors: “The defendant’s a hunter, but not a regular hunter. Oh, he’s a poacher. A poacher who already had his prey selected. What he searched for, this poacher, was the right time, place, and manner where he could snatch up his prey.”
Carli Moncher, a forensic interviewer for the Safe Child Center at Flagstaff Medical Center, testified as an expert witness about victimology. Moncher was a so-called “blind” witness, in that she didn’t know the details of the case, but she testified about how abusers target child victims and the process that forensic examiners such as herself use when interviewing children about suspected abuse.
A.W., now six years old, testified that she and Almanza were feeding the pigs, when he stuck his “finger in my crotch.”
She said: “I was on his lap, and we were just watching the pigs do some stuff. And then I was wearing a dress, and he just pulled it up.”
A.W. said Almanza didn’t say anything and she didn’t know why he stopped. “I just thought that he would get in trouble, but he just told me don’t tell anyone,” she said. “But I had to tell my mom.”
Green conducted a limited cross-examination of A.W. He did not ask her about being hit with a shovel and didn’t challenge the truthfulness of her testimony. He told her: “You’ve been a really good witness, though. You’ve done a good job.”
On redirect, Long asked A.W. where Almanza had placed his finger, was it inside her crotch or outside. A.W. said inside. In an initial interview with law enforcement, A.W. had been asked, “Was it on the inside of your part that pees, or the outside part that pees?” and she responded, “On the side.”
K.Q. testified that she worked as a butcher at the ranch, overseeing the slaughter and processing of beef cattle. The pigs were a side project of hers, and Almanza on occasion helped out when he was done with his other responsibilities, she said.
K.Q. said that on the day in question, she was grinding beef in the packing house when her daughter came inside and said, “Fernando has really sharp nails.” She said she called the police after her daughter told her where Almanza had touched her. At the police station, her daughter used the restroom and told K.Q. that it hurt to urinate. K.Q. said she saw blood on the girl’s underwear. The clothing was introduced into evidence.
During cross-examination, Green asked K.Q. about her relationship with Almanza, who worked directly for the ranch’s owner. Green asked K.Q. if she remembered punching Almanza in the face. K.Q. said she had done so because Almanza had acted inappropriately. She said she got “bad feelings” about him and limited her interactions with Almanza and would not let him around her children.
Green moved on with his questioning, but on redirect, Long returned to that incident. K.Q. said that Almanza had come up behind her and pressed his body into hers. She also testified that he had asked her out about six times and entered her house unannounced on several occasions.
Kathy Bodwell, a former forensic interviewer at the Southern Arizona Children’s Advocacy Center, testified about her interview with A.W. She said that she didn’t believe that A.W. was being coached to say she was abused. She said the girl used age-appropriate language, described the event in sufficient detail, and corrected Bodwell when she made a mistake during her questioning.
J.I., K.Q.’s son, testified that he had been helping Almanza and A.W. feed the pigs when he went to get some scraps, leaving Almanza and A.W. alone. The feeding process often involved moving heavy barrels into smaller containers. After they were done feeding the animals, J.I. said, he and his sister were walking back to the house, when A.W. said Almanza had touched her. J.I. said he told his sister to tell their mother.
Snyder testified about the interview with Almanza, walking jurors through a transcript of Almanza’s statement. “I pick her up, like I said, and I leave her down,” Almanza said at one time. “But I [did] not see blood or nothing.” Jurors also heard that Almanza had told Snyder and the other detective that if one of his fingers had accidentally slipped inside A.W.’s vagina while he was carrying her, it would have been his middle finger.
As part of the investigation, deputies took fingernail scrapings from Almanza and photographs of his hands. The scrapings did not contain any material connecting Almanza to the alleged incident.
Almanza had hernia surgery on October 5, 2011. It was his second such procedure, and his doctor had told him to avoid strenuous activity. Snyder testified, on cross-examination, that Almanza had mentioned the surgery. Green asked Snyder to elaborate. The state objected, arguing this was hearsay. Green argued that Almanza’s physical limitations undercut J.I.’s testimony. Judge Johnson sustained the state’s objection. He also denied Green’s request to allow the jury to hear the entire recording of the interview.
Johnny Boggs had met Almanza in the winter or early spring of 2012 when they were in the Pinal County Jail. Boggs testified that he was introduced to Almanza because Almanza needed someone to help him understand what was going on with his case and Boggs was fluent in Spanish and English.
According to Boggs, Almanza did not know why he was in jail, so Boggs asked a deputy, who told him. Boggs said that after he relayed this information to Almanza, “[h]e didn’t understand how he was being charged for sexual assault if he didn’t put his penis in her, that he just put his finger in her.”
Boggs said that after hearing this statement from Almanza, which Boggs said made him feel “messed up,” he approached another deputy and asked to be put in touch with the officers working on Almanza’s case. He then talked with Snyder.
Boggs had been indicted in February 2012 on four felony and two misdemeanor counts related to a domestic violence complaint. By the time he told deputies about Almanza’s statements, he had worked out a plea agreement that dismissed many of the charges and included a prison sentence of a year and nine months.
Later, that agreement was amended and made contingent upon Boggs testifying truthfully against Almanza, consistent with Boggs’s statements to the police. If he failed to do so, the dismissed charges could be reinstated.
When he testified, Boggs had completed his prison sentence. Asked if he received any benefit for testifying against Almanza, Boggs said, “The only benefit I received out of it was peace of mind.”
The prosecutor asked: “So if you failed to testify, under this agreement was there any consequence for you at all?”
Boggs said, “No, there isn’t, because there’s double jeopardy.”
Green had received the plea agreement in discovery but didn’t question Boggs about his testimony that he faced no possible penalty for failing to testify.
Dr. Julie Klein, a pediatrician at Tucson Medical Center, testified that she examined and interviewed A.W. on October 22, 2011. “[She] told me that Fernando asked if she wanted to go see some pigs with him, and so she went with him,” Klein said. She said that A.W. told her that “he pulled down her panties and he put his fingers in her, and his fingernails were sharp and it hurt her. And she told me also that he became mad because she wouldn’t do what he wanted her to do and he hit her in the back with a shovel.”
Klein said she examined A.W. and saw that the girl had an abrasion at the base of her labia minora that was “consistent” with A.W.’s report of the injury.
Klein testified that she did not notice any bruising on A.W.’s back that indicated the girl had been hit with a shovel. But she said that the lack of bruising didn’t mean the event didn’t happen. “Sometimes bruises never develop,” she said.
On cross-examination, Klein said that A.W.’s genital injury could have been caused by something else that A.W. encountered at the ranch, but later added, “All I can tell you is that when I took a look, I recognized right away, boy, this really looks like it could have been a fingernail scratch. I can tell you it did not look like a child’s fingernail.”
Klein also reviewed photos of A.W.’s genital region taken with a colposcope by Sharon Welch, a nurse examiner. Klein said the images were consistent with her report.
Welch later testified about her examination of A.W. She said the girl’s description of the incident was age-appropriate and didn’t include any statements that Welch considered to be “parroting” something an adult had told her to say.
A toxicologist with the Arizona Department of Public Safety testified that she tested A.W.’s rape kit. She said she found no evidence of semen or sperm and could not determine when the blood stains on the underwear were created.
Separately, Peggy Toporek, a criminalist and DNA analyst with the Department of Public Safety, testified that A.W.’s DNA was not found in Almanza’s fingernail scrapings. She said the absence didn’t mean that Almanza didn’t touch the girl. “Just because you touch something doesn’t mean you leave DNA behind,” Toporek said. “I do many, many cases of trace DNA and many times I don’t get a profile. The absence of DNA doesn’t mean that an event didn’t occur or somebody didn’t touch.”
Almanza did not testify, and Green presented no other witnesses.
During his closing argument, Long indirectly referenced Almanza’s decision not to testify. He told jurors, “There are two people who know what happened, and the defendant is the other.” He also said that Boggs was a credible witness who had “absolutely nothing to gain by speaking his truth.”
On October 7, 2013, the jury convicted Almanza of sexual conduct with a minor. He was later sentenced to life in prison, with a minimum sentence of 35 years before consideration for parole.
Almanza appealed, arguing that Judge Johnson erred in not suppressing his statement to the detectives and that the detectives ignored his request that he no longer wanted to answer questions. He also said Judge Johnson should have barred K.Q. from testifying about Almanza’s prior bad acts.
A three-judge panel from Division Two of the Arizona Court of Appeals affirmed the conviction on August 29, 2014. The court said the detectives had properly read Almanza his Miranda rights, and that Almanza’s invocation of those rights during the interview was not “unequivocal or unambiguous.”
In 2015, Almanza filed a pro se motion for post-conviction relief. A different panel of appellate judges from Division Two affirmed the conviction in 2018, this time on procedural grounds.
Also in 2015, Almanza filed a pro se petition for a writ of habeas corpus in U.S. District Court for the District of Arizona. (Because of Almanza’s language challenges, another inmate wrote the document.) The petition said that Boggs had been acting as a government agent when he elicited the alleged statements from Almanza. The petition also said his trial attorney had been ineffective in challenging Boggs’s testimony about the details of his plea arrangement.
After Almanza filed the petition, the court appointed attorneys with the Federal Public Defenders office in Arizona to represent him. They filed an expanded petition on July 26, 2018.
Along with the claims in the initial petition, the expanded petition said Green had failed to adequately investigate the case and present testimony from the ranch owners and the father of J.I. undermining K.Q.’s credibility. The petition also said Green failed to adequately cross-examine Boggs and A.W. and object to the prosecutor’s vouching for witnesses. It also asserted that the state had failed to correct Boggs’s false testimony about his plea agreement. In addition, the petition said Green had been ineffective when he asked K.Q. about a previous incident with Almanza, opening the door to the prosecutor’s more damaging line of questioning.
Based on a recommendation from U.S. Magistrate Judge James Metcalf that Almanza’s claims were either untimely or procedurally defaulted, Judge Douglas Rayes denied Almanza’s petition on May 27, 2020.
Almanza appealed to the U.S. Court of Appeals for the Ninth Circuit. On April 4, 2022, the appellate court reversed part of Judge Rayes’s ruling, stating that Almanza’s “substantial” claim that Green was ineffective in cross-examining Boggs was not procedurally defaulted.
In additional filings, Almanza asserted that Boggs had testified falsely about the terms of his plea agreement, the state had failed to correct those falsehoods, and Green had been ineffective for failing to challenge Boggs. The state argued that Boggs had not testified falsely, because he believed he was testifying truthfully, and prosecutors had not acted improperly because they had no duty to correct testimony that a witness believed to be true.
Magistrate Judge Metcalf issued a report on November 18, 2022, again recommending that Almanza’s petition be denied.
He wrote: “Again, even if the prosecution knew that Boggs’s belief was wrong, what was relevant to Boggs’s testimony and credibility was only what Boggs believed. It was only that belief which could create (or remove) an actual motivation for Boggs to lie.”
On March 15, 2023, Judge Rayes rejected Metcalf’s recommendation and granted Almanza’s habeas petition.
He wrote: “The prosecution’s use of objectively false testimony was objectionable. The evidence is clear from the state court record that Boggs received a significant benefit from testifying pursuant to his testimonial plea agreement, that he was not correct when he testified that he received no benefit, that the prosecutor, knowing otherwise, ran with Boggs’s testimony, and defense counsel did nothing to bring any of this to the jury’s attention.”
Almanza was released from custody on July 26, 2023.
Almanza’s retrial began on August 27, 2024, in Pinal County Superior Court. He was now represented by Anthony Kenney.
The state presented many of the same witnesses, including A.W., her mother, and her brother. But there was also defense testimony about the malleability of child memory and the prevalence of false confessions and the situations in which they arise. In addition, jurors heard evidence that undermined the state’s timeline of when the alleged crime occurred. Almanza also testified and denied the allegations.
On August 30, 2024, the jury acquitted Almanza.
– Ken Otterbourg
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