Tuesday, March 15, 2011

Jury selection underway in the death penalty trial for Jason Eugene Bush

In William Shakespeare’s play Julius Caesar, the long dead Roman emperor is warned to “beware the Ides of March.” The term Ides of March is best known as the date that Julius Caesar was killed in 44 B.C. when he was stabbed to death, 23 times, in the Roman Senate. This analogy was appropriate for the first day of jury selection on March 15 in the double-homicide trial for Jason Eugene Bush in Pima County Superior Court.
Jason Bush

Bush, 36, is charged with two counts of first-degree felony murder in the deaths of Raul “Junior” Flores and his daughter, Brisenia, 9, as well as one count of the attempted first-degree murder of Gina Marie Gonzalez; one count of burglary in the first-degree; one count of aggravated assault, serious physical injury; one count of aggravated assault, deadly weapon/dangerous instrument; one count of armed robbery; and one count of aggravated armed robbery.

Co-defendant Shawna Forde was recently convicted of all of these charges and was sentenced to death by a superior court jury.

Death penalty

Voir dire was dominated with issues regarding the potential penalty phase in the trial where the defendant could face the death penalty. In fact, defense counsel Richard Parrish filed a motion Monday asked that evidence of alleged prior bad acts not be allowed to be introduced during this trial.

The alleged prior bad acts in question are the murders of Hector Lopez and Jon Bumstead in state of Washington during 1997. The day after Bush was arrested in Kingman he was indicted in Washington on the Lopez murder, but he has never been indicted for the murder of Bumstead. “The introduction by the state of any evidence of the other murders will simply turn this case into the trial of a serial killer who has never had the opportunity to defend against allegations arising from murders which occurred 14 years ago,” the motion stated. “To do so would be breathtakingly prejudicial and distracting to the jury.”

Mini-opening statements

As in the Forde trial, each side was provided an opportunity to present mini-opening statements in the case. Deputy County Attorney Rick Unklesbay did the honors for the state. “On May 30th, at about one o’clock in the morning, Raul Flores what at home with his wife, Gina Gonzalez, and their 9-year-old daughter, Brisenia,” he said. “The defendant and at least two others came to the house and pretended to be law enforcement. Mr. Bush showed up at the house, he had a weapon and was with a person named Shawna Forde and another person named Albert Gaxiola.”

Unklesbay said that Bush shot and killed Raul Flores and his daughter and wounded his wife, Gina Gonzalez. “Over the next few minutes, Mr. Bush shot and killed Raul Flores by shooting him six times. He then shot Gina Gonzalez twice injuring her and she lived. Then, Mr. Bush put a gun to the head of Brisenia Flores, a 9-year-old and shot her twice in the head and killed her,” he said.

Defense counsel Chris Kimminau reserved his right to do a mini-opening statement until after questioning by Judge John S. Leonardo and Unklesbay. When Kimminau began voir dire of the jury panel his first remarks sounded like the mini-opening statement he did not give earlier in the proceedings.  “Each and everyone of are asked and called upon and directed to come up with your own conclusions your own personal moral judgment as to whether or not you feel that the circumstances are such based upon Mr. Bush’s character, his history and the circumstances surrounding the events that are alleged you make that decision separate and apart from every other juror in the case,” he said. “You do not need to have the approval of the other jurors and you don’t even have to technically tell the other jurors what you are thinking.”

No obligation

Kimminau told the jury that just because the prosecution is asking for a sentence of death that the jury is under no obligation to give one. “A life sentence is always an appropriate sentence. No one will criticize you. The judge won’t criticize you. The state won’t criticize you. The state of Arizona says that’s an appropriate sentence,” he said. “It is only if all of the jurors unanimously agree based upon their own individual decisions that a life sentence is not appropriate that you say we want to kill Mr. Bush.”

Kimminau said the questions asked of potential jurors are being asked in an effort to get a fair and impartial jury. “Mr. Bush is sitting here with a blind faith that your are going to be honest with us so that we can have jury that does what the law asks them to do,” he said.

Then, Kimminau presented a hypothetical scenario for a death penalty trial. “The defendant is charged with intentional, cold-blooded first-degree murder. The state has presented evidence that the defendant has committed the murder. He did it in an intentional, thought and cold-blooded manner. It was completely senseless and it was inexcusable,” he said. “You have seen the gruesome photos and eliminated every possible defense. Given this scenario what is your feeling about the death penalty as an appropriate penalty.”

Then you add in the death of a child. “I want you to add to that scenario that it was a 9-year-old child that was shot, as Mr. Unklesbay told you,” he said.

Mistrial request

Prior to the start of voir dire, Kimminau asked for a ruling on a previous motion to the court to continue the matter due to publicity surrounding the Forde case. Judge Leonardo denied the motion.

Kimminau then raised objections to the jury questionnaire given last week to 225 prospective jurors. “Why is it that those objections are those objections being voiced today as opposed to when the questionnaire was first distributed?” Leonardo asked.

“Mr. Parrish had actually filed a couple of motions to submit our own questionnaire, which were denied,” said Kimminau. “We had no input into this questionnaire and I had not received a copy of this questionnaire prior to this questionnaire being provided to the jurors. I certainly, and neither did Mr. Parrish, consent to the questionnaire being provided to the jury especially without being able to review it and making any objections that are appropriate.”

Kimminau suggested that the questionnaire as it was administered was improper. “I believe that is inappropriate contact between the court and the jurors,” he said. “This questionnaire without the approval or consent, or at least have an opportunity of approval or to object to the questionnaire and approve the questionnaire being sent to the jurors it’s no different than if the court would call the jurors into the courtroom and start asking them questions, get responses to these questions and putting their responses on the record and later providing the record to the attorneys so that they would be able to decide whom they would strike. It was a substantial stage in the proceedings without the consent and approval of counsel.”

Kimminau said the questionnaire misled the jurors regarding the issue of mitigating factors. “It states that if the jury unanimously agrees that one or more mitigating circumstances is sufficiently substantial to call for leniency the appropriate verdict is life I do not believe that is a correct statement of the law,” he said. “To suggest that the jury has to agree on one or more of the mitigating circumstances is not true.”

Kimminau also argued that the questionnaire is an incorrect statement of the law when it said the potential penalty of life in prison without the possibility of release after serving 25 calendar years. “In this particular case there is a child less than 15 years of age there would be a life sentence of 35 years before he would be eligible for release,” he said. “I don’t even think the jury should be advised of the possibility of release.”


Kimminau also requested a mistrial based upon question 27 which asked for a ranking of reasons to impose the death penalty, including:
  • ŸTo deter others from committing murder.
  • ŸFor economic reasons. It’s expensive to house prisoners for the remainder of their lives.
  • ŸBecause an eye for an eye is fair.
  • ŸTo protect public against defendants who might get out of jail in the future.
  • Other (please specify)_________.

“If a juror says these would consider any of these factors that is immediate grounds to disqualify that juror,” Kimminau argued. “These are illegal, improper factors for a juror to be considering. By giving this question and indicating that it is appropriate to consider these questions it is a violation of the statute. The law is very clear that the only factors that may be considered are statutory factors.”


After the morning session concluded, the lawyers resumed argument regarding Kimminau’s concerns. “The court put all of us on notice when the jurors would be coming in to fill out the questionnaires and to suggest a time that the defense might object to any of the questions contained in the questionnaire would have been prior to last Wednesday,” said Unklesbay. “All sides had ample notice of when the jury was coming in. There was ample opportunity to object to questions prior to the jury filling these out.”

Unklesbay defended the questions on the questionnaire. “Asking the jury now if they think it is appropriate to consider those four things which we asked them to answer in terms of sentencing they haven’t gotten the court’s instructions. They have no idea what mitigation is or what they may consider,” he said.

Judge John S. Leonardo
Kimminau told the court that he needs to asked specific questions of the jurors. “I don’t have to ask them if they are going to follow the court’s instructions, in fact my job is to find out if they aren’t going to follow the court’s instructions,” he said.

Leonardo suggested Kimminau was off base. “It doesn’t matter in the abstract. It matters if they are going to follow the oath they take as jurors,” he said.

“I need to ask them specifically will you consider that factor or will you not consider that factor,” Kimminau replied. “I wouldn’t be asking these questions if they weren’t on the jury questionnaire, but we’ve already implanted in their minds that these are appropriate. I am going to ask them.”

“You’ll ask to the extent that I will allow you to ask them,” Leonardo said.

“There’s no doubt about that,” Kimminau replied.

“The implication that you were just informed today that there was a juror questionnaire is pretty absurd,” Leonardo said. “To think that you didn’t have an opportunity to object to any of the questions on the jury questionnaire and to somehow interject your own views about the questions on that questionnaire is pretty preposterous,”

“Are you asking for a response?” Kimminau said.  

“If you have one,” Leonardo replied.

“I guess I would ask what is preposterous about it?” Kimminau said.

“You knew there was going to be a jury questionnaire all along,” Leonardo stated.

“Absolutely your honor and we filed two motions in this case stating we wanted to have input in this questionnaire. The court summarily denied both of those requests without even a hearing,” Kimminau said. “We were never asked for any input into the jury questionnaire whatsoever.”