|Judge John S. Leonardo|
The selection of a jury in a criminal trial is a very inexact science. The selection of a jury for a death penalty case is a situation that almost defies description.
Thursday marked the second of two days of questions for prospective jurors summoned to Pima County Superior Court to hear the trial of accused double-murderer Albert Robert Gaxiola.
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. If convicted, Gaxiola faces the same potential penalties as his co-defendants.
As in the trials for Forde and Bush, 224 prospective jurors filled a questionnaire out last week in order to gauge their potential qualifications to serve as jurors on this 4-5 week trial before Judge John S. Leonardo. While the questionnaire is designed to elicit comments regarding the death penalty it is also used to identify jurors who have previous vacation plans or other potential hardships if they are chosen to serve on this jury. Given the time of year, vacation plans are a chief obstacle faced by courts when they summon jurors for service on trials.
The prospective jurors summoned for this case were provided this explanation as a part of the questionnaire.
“The guilt phase of this trial will proceed in the normal manner. If defendant is found not guilty by the jury, the jury’s job is completed. If, however, the jury finds defendant guilty of first-degree murder as charged, the jury will then move on to the sentencing phase of the trial.
“The sentencing hearing for a person found guilty of first-degree capital murder is divided into two phases.
“In the Aggravation Phase, the jury will determine whether the defendant is eligible for the death sentence. A person is not eligible for the death penalty unless the state proves beyond a reasonable doubt at least one or more of the aggravating circumstances it has alleged.
“If the jury finds that the state failed to prove any aggravating circumstance, the defendant will not be eligible for the death penalty and the jury’s duty will be completed.
“If the jury finds that the state has proved at least one aggravating circumstance, the trial will proceed to the Penalty Phase.
“In the penalty phase the jury determines whether mitigating circumstances exist and, if so, chooses whether to impose the death penalty or a life sentence. A mitigating circumstance is any factor, including any aspect of the defendant’s character or background and any aspect of the crime itself, which supports a sentence of less than death. If the jury unanimously agrees that one or more mitigating circumstances are sufficiently substantial to call for leniency, the appropriate verdict is life. If the jury votes for life, the judge will then sentence the defendant to either life or natural life in prison.
“If the jury unanimously agrees that the mitigation is sufficient to call for leniency and, therefore, life in prison is the appropriate sentence, the court will sentence the defendant to either life imprisonment without the possibility of release or life without the possibility of release until at least 35 calendar years have passed. If the jury unanimously agrees that no mitigation exists or that the mitigation is not sufficiently substantial to call for leniency, the jury must impose the death penalty. The jury’s decision to impose the death penalty is not a recommendation. It is binding on the court.”
While this explanation might make sense to me or may make sense to someone trained in the law, it is apparent that prospective jurors summoned for service on this case and for the Forde and Bush cases didn’t quite understand the process and what their roles would be if chosen to serve on this trial. Why should a layman off the street understand the process simply by reading a short explanation? First, the only time that most persons go to the courthouse is when they are summoned for jury service. Second, ours has become a society that is more visually oriented and the written word, outside of email and text messages, has become a secondary form of communication.
That said, here are a few of the questions jurors were asked to answer in writing in advance of voir dire in Leonardo’s courtroom.
“If you are selected to serve on this jury, you may be asked to decide to sentence the defendant to life in prison or to death. Are you willing to accept this responsibility?
“Will you, for whatever reason, automatically vote against the death penalty without considering the evidence and the instructions of law that will be presented to you?
“Conversely, will you, for whatever reason, automatically vote for the death penalty without considering the evidence and the instructions on the law that you will be presented to you?
“What are your feelings about the death penalty?
“Do you think life imprisonment is a substantial penalty for first-degree murder?
“The court will instruct you on when the death penalty is appropriate under Arizona law. Setting that aside for the moment, which of the following statements most closely reflects your personal feelings on what the law should be regarding the death penalty?
__I feel the death penalty should be imposed in all cases where the defendant is guilty of first-degree murder.
__I am not opposed to the death penalty, but I think it should depend on the circumstances of each case.
__I am personally, morally, or religiously opposed to the death penalty, and I believe it should not be the law.
__Other (please specify): ____________________________________
“In light of the opinion you expressed above, which of the following statements most closely reflects how you would resolve a conflict between the court’s instructions on the law regarding the death penalty and your own view of what the law should be?
__Regardless of the court’s instructions I would always impose the death penalty in first-degree murder cases.
__Regardless of the court’s instructions I would never impose the death penalty under any circumstances.
__Regardless of the court’s instructions I would follow my own personal, moral, or religious framework in deciding whether or not to impose the death penalty.
__I would set my own beliefs about the death penalty aside and apply the court’s instructions on the law in order to determine if the death penalty is warranted.
__Other (please specify): ____________________________________
“What sentence do you consider to be the most severe or serious form of punishment?
__Life imprisonment without parole
Questions and more questions
Would you be surprised to learn that most of the prospective jurors questioned about their written answers to these and other questions did not really understand the process that is undertaken in a death penalty trial based upon the written explanation provided as a part of the questionnaire? That has become painfully obvious after three-hour sessions of questioning by the attorneys. Those sessions have been without breaks and two of them stretched through the noon hour, one to 1 p.m. and the other until 1:30 p.m.
It was really obvious when Leonardo asked the attorneys if they could return in 45 minutes in order to start the afternoon session of voir dire on Thursday. “No, that will not be okay,” said defense counsel Steven D. West. “You asked for our opinion and that’s the truth.”
West followed up by complaining that the more session had lasted four hours without a break for the jurors and the court staff. Deputy County Attorney Rick Unklesbay pointed out that the morning session had only lasted three hours instead of the four represented by West. The result was the attorneys were given an extra 15 minutes, a whole hour for lunch.
The jury selection process will resume at 9 a.m. Friday. It is anticipated that a jury panel will be finalized and opening statements will take place on Tuesday, June 7. By the way, earlier in the week, Leonardo had informed the attorneys that he expected to have opening statements in the case delivered Friday afternoon. Deputy County Attorney Kellie Johnson reminded the judge that she was scheduled to leave town for the weekend and hoped to get away by mid-afternoon Friday. Johnson will be delivering the opening statement on behalf of the prosecution.