Friday, March 18, 2011

No ruling from the court regarding evidence of prior bad acts by Bush

The Pima County Superior Court jury hearing the double-murder trial of Jason Eugene Bush may or may not hear evidence that Bush is wanted in connection with a pair of 1997 murders in the state of Washington.

Jason Bush (center) with counsel
Richard Parrish and Chris Kimminau.
(Pool photo by Dean Knuth/
Arizona Daily Star)
Bush, 36, is charged with two counts of first-degree 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.

Motion in limine

The a motion filed with the court earlier this week defense counsel Richard Parrish wrote that he and co-counsel Chris Kimminau do not plan to actively defend their client during the first phase of the potentially three-phase trial. “He has no guilt phase defense to these charges,” Parrish wrote in his motion. “Not only is the evidence overwhelming, but he was wounded in the leg in the home invasion, and he was arrested in a hospital in Kingman while being treated for the leg wound.”

The motion goes on to state: “He confessed to these murders. The defense in this case will not contest his guilt, believing that if they did so, both defense attorneys would entirely lose their credibility before the jury, which must then be engaged in a defense effort to mitigate the penalty imposed on Bush.”

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 connection with the May 30, 2009, home invasion in Arivaca 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.”

Clarifications sought

In an attempt to resolve the issues raised by the motion, Judge John S. Leonardo asked the attorneys for argument regarding its merits. “What I need to know in order to rule on this motion what mitigation will be offered by the defense,” Leonardo said.

Parrish told Leonardo that he had faxed to the court a one-page description of the mitigation evidence the defense anticipated introducing during the penalty phase of the trial. “That will define what’s relevant I terms of rebuttal and what is not,” Parrish told the court. “It’s very broad. It’s subsection G of ARS 13-751 which talks about character, background and other aspects of the defendant’s life.”

Parrish admitted that they really don’t know who all of their witnesses will be during the penalty phase. “We have not subpoenaed personal witnesses from Idaho, but his natural father and natural mother have guaranteed us that they will come,” he said. “There are other individuals who have known him through his early years that have told us they will come.”

Quick trial

Parrish assured Leonardo that evidence anticipated during the penalty phase should have no bearing on the guilt or innocence of Bush. “The entire thrust of this has nothing to do with the innocence of this man. It has to do with mental problems that began very early in his life,” he explained. “His father and mother basically disowned him, terminated their parenting of him at the age of 11. His father committed him to a mental institution.”

Parrish also mentioned they may talk about law enforcement contacts his client has had over the years. “We have records of a long series of contacts with law enforcement,” he said. “There are 1,562 pages of documentation about this.”

Parrish also revealed that Bush had invented a fictional life for him self. “There is an entire carton of framed certificates, testimonials from the department of defense, the president of the United States, special forces, photographs of Mr. Bush in a Marine uniform with weapons, jumping out of an airplane an doing various things,” he said. “It is all in the imagination of Mr. Bush. He was never in the service. He created an identity, which he backed up with some astonishingly real looking certificates. There are about 25 of them.”

Leonardo attempted to sum up the defense case during the penalty phase. “The thrust of all that will be to establish a deficiency on the defendant’s part to appreciate the unlawfulness of his conduct?” Leonardo asked. “That being the case would the state still believe that it has a right to present this evidence as to the allegations that the defendant committed two other murder in the state of Washington?”

Unklesbay pointed out that defense experts refer to an incident in 2007 when a hammer fell on Bush’s head at a construction site. “The murders in Washington took place in 1997,” he pointed out. “It’s relevant that the incidents in Washington show that he had this kind of behavior long before.”


Unklesbay also pointed out that the defense has indicated they may wish to play the entire statement by the defendant where he offers a confession. “Within that statement, Mr. Bush indicates after he admits to shooting Brisenia and Raul that he has never done anything like this before in his past,” he said. “That’s not true.”

Leonardo appeared to decide that both sides where aware of the limits they face regarding evidence in the penalty phase. “One of my primary objectives here is to make certain that both sides understand where they are trying to go with this,” the judge said.

Parrish told the court that they were not going to paint their client as an angel. “We are certainly not going to maintain to the court or this jury that peacefulness is the nature of this man,” he said. “For better or for worse, your honor, there are two attorneys representing Mr. Bush. The attorney to my left is representing him on guilt or innocence. I am representing him on mitigation issues. I have never said to anyone that I will play the statement. My co-counsel may have launched that missile to the prosecution for whatever reason. That portion of the tape is not going to be played.”

Leonardo said he would defer ruling on the motion at this time. “It is the court’s belief that the state’s ability to rebut is limited to what’s relevant to the mitigation that is actually offered,” he said. “We won’t know that until it actually happens, but I think this discussion has made it fairly clear to everyone.”

Parrish added that the evidence the state has collected regarding the Washington incidents would be very prejudicial to his client. “I have never seen anything more calculated to prejudice this individual. The guilt phase is going to end very rapidly, I believe,” he said.

“Absent the defense making it relevant somehow we’re not going to be talking about the Washington incidents unless the court believes it is relevant,” said Unklesbay.

“We’re not stupid enough to make it relevant,” Parrish responded.

“The court won’t rule at this time,” Leonardo said.