A motion seeking a change of judge in the death penalty trial for Albert Robert Gaxiola in connection with the May 30, 2009, Arivaca home invasion that left two dead has been denied by Pima County Superior Court Presiding Judge Sarah R. 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.
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.
Simmons began the hearing, Thursday, by reviewing the reasons for the defense motion seeking to remove Judge John S. Leonardo from presiding over the case in favor of another member of the bench. “You are not asserting any actual bias or prejudice on the judge’s part,” said Simmons. “You are simply saying that since he has presided over two other trials that he has to be biased or prejudiced or can’t remove whatever he has learned in those trials from his mind.”
Defense counsel Jack L. Lansdale Jr. cited case law in his arguments before Simmons. “These cases, basically, stand for the proposition that if there is an appearance of impropriety by the time that a court is hearing a case that is grounds under (Rule) 10.1, as well as actual bias or prejudice,” he said.
Deputy County Attorney Rick Unklesbay told Simmons the timing of the motion troubled him since Gaxiola was granted a motion to sever his trial from the other two defendants in 2010. “The defense are the ones who initially put into play in front of the court evidence that would be prejudicial to their client and would justify granting a severance,” he said. “We agreed to the severance not because of issues they presented but after research we felt that having a single jury conduct multiple sentencings in a capital case would be problematic. They waited until Judge Leonardo was out of the country and unable to respond in any way.”
Lansdale told Simmons he found it troubling that the judge presiding over a death penalty case was unavailable for two weeks prior to the start of the case. “There’s nothing illegal about a judge going on vacation. I get it. Everyone has a right to go on vacation,” he said. “But, during the two weeks before a capital murder trial he’s gone. Things are going to be happening. That’s just the way it is.”
Lansdale reminded Simmons that there are three defendants and that Leonardo has presided over the trials of two of those defendants since the first of the year. “In our motion to sever we pointed out the mutually exclusive defenses that these three defendants had and the difficulty that a trier of fact would have,” he said. “By the time we filed our third motion to sever the prosecution basically recognized the problem and really didn’t oppose our third motion to sever.”
Lansdale also pointed to a ruling by Leonardo asking for limits on testimony by the surviving victim in the case, Gina Gonzalez. “During the Forde trial, she was blaming everything on Albert Gaxiola. They were doing everything they can to elicit hearsay, inadmissible evidence to point at our client,” he argued. “During the Bush trial, they admitted a confession by Jason Bush. Part of the relevant statements that came in were that the morning after the homicide the star witness for the state, a fellow by the name of Oin Oakstar who made a deal, comes in and says ‘I went over to Gaxiola’s apartment the morning of May 30th after the homicide at Gaxiola’s request to provide some pain medication to Jason Bush who had been shot.’ During a conversation with Bush and Forde, Oakstar says he was told that ‘Albert left a gun in the house and we had to go back in and get it and that’s when the shooting occurred when the defendant got shot.’”
Lansdale said that is hearsay evidence against Gaxiola. “The judge has heard all of this,” he added.
Unklesbay said that Oakstar has testified previously and will testify against Gaxiola. “He has steadfastly maintained that Mr. Gaxiola was involved in the initial planning of these murders, that Mr. Gaxiola wanted Junior Flores out of the way because he was drug competition,” he said. “There is hardly anything that Judge Leonardo heard in the first to cases that is not going to be part and parcel of this case. Judge Leonardo heard that the gun was left in the house that they went back to get it had Mr. Gaxiola’s DNA on it.”
Lansdale also pointed out that when Gonzalez testified during the Forde trial that she revealed for the first time since the home invasion that his client was present in the home. Based on that testimony, Lansdale had previously filed a motion seeking to keep her from testifying to that fact. “Judge Leonardo denied our motion summarily without a hearing. I’m suggesting that he is so convinced that after what he has heard that he has been influenced by all of this evidence,” he said. “It’s analogous to him receiving ex parte information about our client.”
Unklesbay pointed out that Gonzalez had told detectives during an interview on May 31, 2009, that she had recognized Gaxiola’s voice among those who took part in the home invasion. “She told them the voice she heard was that of Albert Gaxiola particularly when it said that they have another daughter,” he said.
Lansdale pointed to the admission of Bush’s confession at his trial, which would not be admissible at Gaxiola’s trial. “In his confession, he says Albert Gaxiola is holding a gun on him saying that if he didn’t go in and kill those people he would be killed,” he said.
Because Leonardo was out of the country on vacation, a hearing was held May 20 before Judge Richard Fields, presiding judge for the Criminal Bench, seeking changes to the language in the jury questionnaire given to 225 prospective jurors on May 25. “Judge Fields allowed us to add the fact that our client denies even having been there,” Lansdale told Simmons. “When Judge Leonardo drafted the questionnaire it didn’t even occur to him to put anything about the defendant’s perspective that he’s denying that he was even there. He did that because he’s convinced that my client was there.”
Lansdale reassured Simmons that the grounds for the request for a change of judge were based upon issues in the case and not a question of the fairness of the judge assigned to the case. “You will never hear me say that Judge Leonardo is not a fair judge,” he said.
Simmons denied the motion based upon the case law from previous cases ruled upon in Arizona. “A judge who has heard companion cases or cases involving other defendants involved in the same matter are not automatically disqualified,” she said. “You still have to show bias or prejudice. I, frankly, don’t think you’ve shown that by a preponderance of the evidence.”
Jury selection in the matter will resume on Wednesday, June 1, before Leonardo.