Attorneys for a California man charged with murder in a fatal 2012 shooting are lobbying for key evidence to be thrown out at his trial, which is scheduled to begin next month.

Zachary Phach, 33, appeared in court Friday for a pretrial hearing where his attorneys argued that police failed to preserve evidence about an alternative suspect and that a witness who identified him as the shooter was unreliable.

He is scheduled to go before a jury trial on July 17. It’s not clear when the judge will rule on the motions.

Phach was arrested in California in early 2021 and was brought back to the Cumberland County Jail, where he’s still being held on murder, aggravated attempted murder, elevated aggravated assault and criminal conspiracy charges.

Phach was indicted along with Khang Tran, 29, both of whom Portland police say were responsible for a shooting early on July 11, 2012, that killed Matthew Blanchard and injured two other men, Blanchard’s stepbrother Joshua Hersom and half-brother John Howard Jr., while they were walking near the corner of Congress and India streets in downtown Portland.

At the time of the shooting, police said the killing appeared to be random. But when they announced the arrests almost a decade later, police said Tran and Phach targeted the men so they could settle a “beef” with Blanchard and his brothers. They allege Phach was the one who fired the gun, a 9 mm.

Prosecutors dropped most of the charges against Tran last fall and he pleaded guilty to one count of criminal conspiracy and was sentenced to four years in prison.

As Phach now prepares for trial as the sole defendant, his defense attorneys are asking Cumberland County Superior Justice John O’Neil to effectively dismiss the case because police failed to preserve evidence that would allow them to investigate an alternate suspect: Matthew Sanders, whom investigators received several tips about early in their investigation.

ALTERNATIVE SUSPECT

According to testimony from former Portland Detective Christopher Giesecke, the lead investigator on the case until 2020, officers received at least three tips about Sanders’ involvement in the shooting.

One caller said Sanders told them he was the one who shot Blanchard. Another caller alleged Sanders showed him a video from the shooting. A third caller told police Sanders had said it was his gun that was used in the shooting, Giesecke testified Friday.

The detective interviewed Sanders more than once. Police even took his phone in August 2012 and searched it for the video. But Giesecke said the tips were inconsistent, much of Sanders’ statements to police were incorrect and he led police to the wrong location of the shooting.

Blanchards’ brothers knew Sanders and didn’t recognize him as their assailant, Giesecke said.

“In my view, he was telling a story,” he said.

When the detective returned Sanders’ phone, that was the last he spoke with the man.

In court documents, Phach’s defense attorneys, Timothy Zerillo and Caleigh Milton, argue police didn’t fully investigate Sanders as a legitimate suspect and that they didn’t preserve any of the evidence that would’ve made it possible to investigate Sanders more than 10 years later.

“In 2012, no suspect at all had been identified besides Mr. Sanders himself,” the attorneys wrote. “Failing to maintain a crucial piece of evidence, which could hold a video of the shooting, is far worse than poor practice, this is bad faith. This significantly inhibits the defendant’s ability to investigate the case and mount an alternative suspect defense.”

State prosecutors are asking O’Neil to bar the defense from even introducing Sanders as an alternate suspect.

JAILHOUSE INFORMANT

Meanwhile, Zerillo and Milton also have asked the judge to prevent prosecutors from using evidence that an informer identified Phach as the shooter.

Jorge Torres, who was arrested for aggravated trafficking in 2014, contacted police seeking to trade information about the shooting in return for a lesser charge, according to court records and Giesecke’s testimony.

Torres told Giesecke that he was doing cocaine with a man he only knew as “Zack” when the man confessed to the shooting.

Giesecke met with Torres at the York County Jail, bringing in several grainy, black-and-white photos of potential suspects from Facebook. 

The photos were all of Tran’s friends. Giesecke said he had never heard of Phach before meeting with Torres, and didn’t know whether Phach was in any of the pictures beforehand. Police had already identified Tran as a potential suspect.

Torres pointed to a picture of Phach, and said he couldn’t see his face “real good” but he was sure it was him because Phach always wore white T-shirts.

“Jorge Torres’ identifications are plainly unreliable,” wrote Phach’s defense attorneys, calling his motivations “suspect” and saying his memory was limited and drug-induced.

Giesecke later sent that same picture to others in the Portland Police Department, asking if they recognized the man in the white shirt. Officer Dan Aguilera responded, saying he believed the man was Zachary Phach based on an arrest he had made in 2013.

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