Friday, April 01, 2011

Bush defense teams plans a motion seeking a mistrial

Prior to the conclusion, next week, of the sentencing phase in the Pima County Superior Court death penalty trial for Jason Eugene Bush, Judge John S. Leonardo will be asked to declare a mistrial in this phase of the proceedings.

Last Friday, the jury returned guilty verdicts on two counts of first-degree murder in the May 30, 2009 deaths of Raul “Junior” Flores and his daughter, Brisenia, 9, at their home in Arivaca. The jury further found that the murders were premeditated and were also committed while Bush was engaged in other felony activities, including 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.

Following that the jury confirmed that aggravating factors existed which make Bush eligible for the death penalty in this case.

Mistrial motion?

Testimony on behalf of the defense ended shortly after 11 a.m. Friday when the potential motion was mentioned during a discussion of proposed final instructions for the jury. “My learned co-counsel is going to draft a very sophisticated closing instruction on the issue of victim impact because of the statement that was given by Ms. Gonzalez,” Defense counsel Richard Parrish told Leonardo.

“If you are going to suggest an additional instruction I ask that you get it to the court no later than Monday so that I can deal with it,” Leonardo replied.

Defense counsel Chris Kimminau said he was waiting for a transcript of the victim impact statement read to the jury on Thursday by Gonzalez. “I will be filing a motion for a mistrial no later than Tuesday along with an instruction,” he told Leonardo.

Jason Bush
Pool photo by Dean
Knuth, Arizona Daily Star
No allocution

In this phase of the trial, defendants are provided an opportunity to allocate to the jury regarding the crimes they have been convicted of committing. “Mr. Bush, you understand that you have a right to make a statement as a part of your defense in this matter at this stage,” Leonardo asked the defendant. “Yes sir,” Bush replied.

“Have you had an opportunity to discus that right with your attorneys?” Leonardo asked Bush. “Yes sir,” Bush replied.

“You have decided and agree with them that it’s in your best interests not to do so?” Leonardo asked. “Yes sir,” Bush replied.

Mom testifies

Testifying on behalf of her son, Friday, was Ellen Bower, Bush’s birth mother. Parrish asked Bower about his client’s father and his service in the U.S. Army in Vietnam. Parrish was particularly interested in the claim by Don Bush that he had been exposed to Agent Orange. It was that exposure that Bower feels may have affected her son. “Problems with his demeanor started showing up about 18-months of age,” she testified. “Just running continually into one thing after another and not understanding what no meant. It was a standing joke in our family, it wasn’t a humorous joke, that the terrible twos started at 18-months and he never grew out of it.”

“Lasted into 8, 9 10-years-old?” Parrish asked. “19, 20, 21,” Bower replied. “35, 36, 37,” Parrish asked, rhetorically.

After Bower had been divorced from Don Bush, she testified that her son’s behavior at the age of 10-years-old became an issue. “Jason’s behavior had gotten so out of control. He was lighting fires in a tree house and yelling obscenities at the neighbor ladies,” she testified. “The neighbors were threatening to have him taken away by child protective services.”

At that point, Bush went to live with his father where he continued to get into trouble, this time with the law. “I heard that he had been shooting BB guns at cars and taking mail out of mailboxes,” she testified.

Bower was told by her ex-husband that evaluations of her son had been done. “He was determined to not have a conscious or the ability to tell right from wrong,” she related to the jury.

Bower said she was told that the only way in which her son could receive the treatment he needed was for him to be surrendered to the custody of the state. “Neither he nor I had the means to provide that kind of medical care,” she testified. “I had to legally sign papers that gave them custody of him.”

Admission records

Bush was placed in the Mid-Columbia Mental Health Center in November 1985 at the age of 11 “due to escalating oppositional behavior to his father and teachers at school along with increasing criminal behavior,” Deputy County Attorney Kellie Johnson read from a report about Bush.

The report continued. “There was no evidence of thought disorder. He was not treated with medications. He was released from Mid-Columbia Mental Health Center and placed at the Crisis Residential Center,” Johnson read.

Bush was placed into a group home in December 1985. “So he spent one month at this mental institution?” Johnson asked Bower. “That’s what it looks like,” Bower replied. “They found there was not mental illness to treat and they put him in the group home,” Johnson asked, rhetorically.

Sexual abuse

About a year after relinquishing her parental rights, Bower heard that her son had been abused in state facilities. “I did get a call from one of the counselors there who told me that Jason had been raped while in the group home,” she said.

Bower was able to secure her son’s release from the state facility allowing him to return to her home at the age of 13. At that point, a male friend of Bower’s took an interest in Bush teaching him welding, horseback riding, water skiing, and blacksmithing. “He traded his own labor to another guy who was a master blacksmith so that Jason could continue his blacksmithing training,” she said.

Bower said her son attended public school for a short time until he got into trouble. “They kicked him off the school bus for misbehaving,” she testified. “He got on his motorbike and put his .410 shotgun across his back and went ripping up the road after the school bus and terrified everybody.”

Following his expulsion from school, his mother home schooled Bush. Then her son was placed into a program dealing with alcohol and drug problems, in essence a reform school.

Is he capable?

Bower was asked if she believed her son was capable of killing 9-year-old Brisenia Flores. “If he managed to do that somehow then there is another monster running around inside of Jason that I have never, ever seen a hint of,” she said.