Wednesday, May 25, 2011

Gaxiola seeking a new judge for his death penalty trial

Judge Sarah Simmons
The day after 225 prospective jurors reported to Pima County Superior Court to fill out a questionnaire to gauge their qualifications to serve as jurors in the death penalty trial of Albert Robert Gaxiola a hearing is scheduled on a request to replace Judge John S. Leonardo as the judge presiding over the case. The hearing on the motion will be heard, May 26,  by superior court Presiding Judge Sarah Simmons.


Gaxiola, 43, faces 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. Additional charges include: 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.
Albert Gaxiola

Both Forde and co-defendant Jason Eugene Bush have been tried and convicted on the same charges. Forde received two death sentences plus 65 years in the Arizona Department of Corrections and Bush received two death sentences and 78 years in prison.

Longtime Arivaca resident and drug dealer Oin Glenn Oakstar testified during the Forde trial that he had met Gaxiola, Forde’s co-defendant and his partner in the drug business, in 2008 shortly after Gaxiola had been released from prison and that they had gone into business together. “We were moving marijuana ourselves,” he testified. He is expected to testify during the trial for Gaxiola.

The motion for a new trial offered by Gaxiola’s counsel Jack S. Lansdale and Steven D. West suggests that Oakstar is “a self professed pathological liar who was originally thought to be a suspect” in the case.

Instead of facing murder charges, Oakstar was arrested on a charge possessor of deadly weapon by prohibited possessor. In exchange for testimony against Forde, Bush and Gaxiola, Judge Jane Eikleberry sentenced Oakstar to three years of intensive probation. Oakstar subsequently violated the terms of his probation and opted to serve a two-year prison sentence.


Oakstar testified in the Forde and Bush trials that Gaxiola considered Flores to be a rival in the drug business and they had started talking about eliminating him as competition in late 2008 and early 2009. “We thought we could hit him economically by taking his marijuana,” Oakstar testified during the Forde trial.

But, they soon began to consider other alternatives. “Once we had gone that far either he was going to kill us or we were going to kill him,” Oakstar testified. “Albert thought we should kill him. We discussed having it done by somebody else. We also discussed doing it ourselves.”

There was no discussion of harming the remainder the of the Flores family. “There was no reason to involve his family,” Oakstar testified. “This was business.”

According to the motion for a change of judge, “Forde and Bush came to Arivaca early in the week of the homicide, and Gaxiola let them stay in his apartment in Arivaca while Gaxiola stayed at his other apartment in Tucson.”

The motion for a change of judge suggests that Oakstar has no firsthand knowledge of Forde’s intentions regarding Flores. “At no time did Shawna Forde reveal to Oakstar that she had a preexisting plan to do home invasions or rip offs of drug dealers,” the motion said. “There will also be no evidence that she discussed these plans with Gaxiola.”

Inadmissible evidence

Judge John S. Leonardo
The motion for a new trial states that Leonardo has heard “inadmissible evidence” and that Gina Gonzales, the surviving victim in the case, has “changed her story after almost two years and, in the Forde trial, said that Gaxiola was present during the home invasion. Prior to this revelation, Gina had acknowledged that she knew Gaxiola well, knew his voice, and never stated he was there. However, under victim’s rights, she sat through a number of court appearances where she heard the prosecution tell the court that they theorized that Gaxiola was present.” The motion points out “during the Bush trial Gina did not say Gaxiola was present.”

The motion suggests that Leonardo is convinced through previous testimony and arguments that the “identification of Gaxiola is credible, and that Gaxiola was part of the raid on the Flores residence.”

The motion points out “this belief is based essentially on communications made to the court in proceedings where Gaxiola was not present and had no voice in what the jury was hearing. In essence, as to Gaxiola it all occurred ex parte” and is “corroborated by at least two statements made by the court.”

The motion points to the first statement, which is contained in a Leonardo ruling that denied Gaxiola’s request to preclude Gonzalez’s identification during trial testimony. “Gonzalez's familiarity with Gaxiola prior to the offense conclusively establishes by clear and convincing evidence that the identification is reliable and there is no substantial likelihood of misidentification.”


The motion also points to the jury questionnaire, in the section denominated background and duties of jurors, the court states: “The state alleges that Mr. Gaxiola, along with Shawna Forde and Jason Bush, was involved in the shootings as part of a raid on the Flores residence searching for drugs, guns and/or money.”

The motion suggests that the questionnaire statement while “couched in terms of what the court says is alleged, it actually goes beyond the most obvious theories, which are complicity through being a conspirator and an accomplice, since the evidence of Gaxiola being part of the actual raid is so lacking. Nevertheless, it displays the current mind set of the court that Gaxiola’s involvement as a principal is the basic theory of the case. Additionally is the court’s mind set that this questionnaire, designed by the court with no input from the parties, would be acceptable.”

Should the presiding judge grant the motion for a change of judge it is possible the trial for Gaxiola will be postponed as it is likely the judge who assumes jurisdiction over the case already has a full trial calendar that would be difficult to rearrange to accommodate a 4-5 week trial starting with jury selection on June 1.