Wednesday, March 16, 2011

There would have to be very compelling reasons not to hang the guy

Day two of jury selection in the double murder trial in Pima County Superior Court for Jason Eugene Bush was a bit livelier than the first day.
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 issues

As was the case yesterday, the primary issue involved the penalty phase of the trial where Bush could be sentenced to death. “If you go back to your high school civics class or high school government class you thing you probably have a pretty go idea of how the criminal justice system works,” said defense counsel Chris Kimminau. “Someone is accused of something, we have a trial and someone is found guilty beyond a reasonable doubt or the jury says they are not guilty. In this particular case that portion of the process is still intact. Everything you have ever learned about the criminal justice process you throw out the window when you get to that phase.”

Kimminau told the prospective jurors that after the guilty/innocence phase that they will be asked to determine if the aggravating factors alleged by the prosecution have been proven. Two of those aggravators are multiple victims and a victim under the age of 15. “There won’t be any problem finding that. That is obviously not in dispute,” he said.

New wrinkle

Prior to the start of today’s jury selection process, Kimminau proposed a new wrinkle for phase two of voir dire on Thursday. “I have thought about the idea of presenting the photographs the state intends to use to the jury as well as the 9-1-1 tape the state intends to present to the jury,” he told Judge John S. Leonardo. “I understand that it’s a novel idea.”

Prior to Leonardo taking the bench, Kimminau approached Deputy County Attorney Rick Unklesbay to agree to his proposal. “I asked Mr. Unklesbay if he would agree to that and he said no. So, I guess I’m moving to do that,” he told Leonardo. “I understand that it’s unconventional, but I also appreciate that what we’re doing here is unconventional. The rules that involve voir dire have been tailored and geared towards a guilt phase only. What we have to do during our voir dire process is to get the jury to a point after the guilt phase, assuming that’s occurred.”

Kimminau said he wanted to avoid problems during the penalty phase of the trial. “What I don’t want is a juror coming up later and saying that ‘If I had seen those photographs before I told you that I could be fair and impartial, if I had heard the 9-1-1 tape before you asked me the question if I was substantially impaired I would have told you absolutely, because once I saw those photographs and once I heard that 9-1-1 tape at that point I was done,’” he said.


Judge John S. Leonardo
Leonardo sounded sympathetic to Kimminau’s proposal. “So, you are talking about an alternative or enhancement to the scenario you’ve been presenting thus far?” he asked.

Unklesbay told Leonardo that previewing evidence in a trial is not appropriate. “It’s entirely inappropriate to preview the case for the jury so that they can decide whether they want to sit as a juror,” he said. “It is in essence attempting to get the jury to then say ‘If I hear that and that’s the evidence then I’m going to give the death penalty, if I hear that I’m going to hold it against your client and can’t be fair any more.’ Mr. Kimminau has repeatedly given a very graphic hypothetical to the jury about the evidence that they might hear. To have them preview the evidence to get a determination as to where they might fall is not appropriate.”

“We are not talking about a conventional situation here,” Kimminau said.

“I understand your position,” Leonardo said. “It certainly would be unconventional to present evidence to the jury during the voir dire process, but I will think about it.” Leonardo denied the motion ask court resume for the afternoon session.


During Kimminau’s turn to question the jury he basically did what he had proposed earlier in the day without playing the 9-1-1 recording or showing the gruesome photos. “I want you to really, really think about what the facts of this case are,” he said. “If the evidence shows that at least three individuals for no legitimate reason whatsoever decide that they are going to arm themselves and that they are going to go over to a house and in that house they will discover a mother, a father and a 9-year-old girl and when they get there they are going to kill them. The evidence shows that the child was begging for her life. The shooter reloads and shoots twice, point-blank in the face.”

Kimminau told the jurors their task would not be pleasant. “I want you to assume for a second that you see gruesome photographs of that child,” he said. “When you see those photographs they will shock you. You will be crying, men and women alike.”

Kimminau suggested that hearing the 9-1-1 recording of Gina Gonzalez exchanging gunshots with the home invaders would also be a challenge. “You will hear that the surviving mother who the shooters thought had been killed called the police and while she was on the telephone a shooter returned and started shooting at her again to try to kill her and you will hear the gunshots,” he told the jury. “You will absolutely be moved. It is gut wrenching.”

Your verdict, please?

Kimminau then asked the prospective jurors what their verdicts would be in the penalty phase. “Based upon that information, does everyone know what his or her sentence would be?” he asked.

One of the male jurors said he would apply his own moral judgment to his decision on sentencing. “That’s exactly right,” Kimminau pointed out. “That’s exactly what you do. You apply your own individual moral decision.”

That male juror confirmed his viewpoint. “If that’s the situation, honestly I would vote or the death penalty,” the juror said.

A second male juror suggested that the trial was not an efficient way of dealing with this situation. “I think we are wasting our time here,” the juror said. “That guy is guilty. He killed a 9-year-old daughter. We don’t need four weeks to do this. We ought to go out and hang him.”

Kimminau asked the jurors who expressed similar sentiments if there was anything that could be said or presented to persuade them from voting for the death penalty. “Is there anything that I can present to you in the way of mitigation, possibly issues of child abuse or previous mental illness, anything like that which might change your mind?” Kimminau asked. “Those gruesome photographs, those shocking 9-1-1 tapes, the judge will tell you have nothing to do with the sentence.”

In response to a question from Leonardo the second male juror above amplified his feelings. “I would think the death penalty would be very appropriate. There would have to be very compelling reasons not to hang the guy,” he said.

Before dismissing the male juror Leonardo asked that juror if he could keep an open mind and not prejudge the issues. “I would be willing to listen because that’s what I would be directed to do,” the second juror said.

In the afternoon session, several jurors expressed similar sentiments. “I might change my mind, but I can’t imagine what you would say to change my mind,” a female juror said.