The death penalty trial for accused double murderer Albert Robert Gaxiola will stay at Pima County Superior Court. Judge John S. Leonardo has denied a motion requesting a change of venue in the case due to “extensive adverse pretrial publicity.”
The trial, which starts May 25 with a questionnaire for 225 prospective jurors, is scheduled for jury selection to start in the courtroom on Wednesday, June 1.
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.
Change of venue
The motion filed on behalf of Gaxiola by counsel Jack L. Lansdale Jr. and Steven D. West suggested to Leonardo “the mere association with Ms. Forde prejudices the defendant.” The motion to continued by pointing out the post conviction interview Forde gave to reporter Terry Greene Sterling of The Daily Beast in which Forde showed no remorse and attempted to shift blame to the victims with her statement: “people shouldn’t deal drugs if they have kids.”
The motions states that a Google search for Forde’s name showed over 71,000 results and a similar search for Gaxiola resulted in over 61,000 results. The motion also pointed out that the Arizona Daily Star published an article on April 23 describing how jurors sitting on the trial for co-defendant Jason Eugene Bush where “emotionally drained” by “haunting” images of Brisenia Flores.
In denying the motion for a change of venue, Leonardo pointed out that the court and parties have not yet selected a jury, thus “Gaxiola does not and cannot argue that actual prejudice has resulted from an unfair jury. Rather, he argues for the presumption of prejudice.”
Leonardo also wrote “for the court to presume such prejudice, Gaxiola must ‘show pretrial publicity so outrageous that it promises to turn the trial into a mockery of justice or a mere formality.’”
Leonardo’s order said that the Ninth Circuit of the U.S. Court of Appeals has identified three factors when evaluating pretrial publicity in a case:
· “whether there was a ‘barrage of inflammatory publicity immediately prior to the trial amounting to a huge…wave of public passion,’”
· “whether the media accounts were primarily factual [rather than] inflammatory editorials and cartoons,”
· “whether the media accounts contained inflammatory, prejudicial information that was not admissible at trial.”
In making his ruling denying the motion for a change of venue, Leonardo focused on news coverage provided by local newspapers and television stations. “Even though reports in the mainstream media have been largely factual, it is reasonable to believe that some people—some people—who followed the trials of the codefendants closely might have already formed hardened opinions on Gaxiola’s guilt or innocence,” he wrote in his ruling. “But that is not enough to presume that the entire community has been so pervaded with inflammatory information that Gaxiola cannot receive a fair trial at this time and place.”
Finally, Leonardo pointed out in his ruling that Pima County has a population of approximately 980,000 people and that 600,000 of those residents are eligible for jury service. The court has summoned 225 prospective jurors on May 25 to fill out a questionnaire that will assist the court in determining their eligibility to serve as jurors. “Will it be possible to find 16 impartial individuals in this community?” the judge wrote. “The court believes it will.”