(pool photo by Benjie
The Pima County Superior Court jury deciding whether for Arivaca resident Albert Robert Gaxiola should spend the rest of his life in prison or be executed by lethal injection was told, Wednesday afternoon, that he is not the worst of the worst that needs to be put down like a dog.
Last Friday, Gaxiola, 44, was found guilty on two counts of first-degree murder in the shooting deaths of Raul “Junior” Flores and his daughter Brisenia, as well as six other charges. Earlier this year, Jason Eugene Bush and Shawna Forde were found guilty on the same charges in separate trials. They both ended up with death sentences imposed by the juries hearing the evidence of their crimes.
Let’s move on
In the third phase of the trial, known by some as the mitigation phase and by others as the penalty phase, the burden of proof lies with the defense, not with the prosecution. “We call this the penalty phase,” said defense counsel Steven D. West.
West told the jury during opening statements that they would not be presented evidence designed to make the crimes to appear less serious than they were. “Mitigation is not an excuse,” he said.
West told the jury that they also would not be asked to reconsider evidence they heard earlier in the trial. “Albert has been found guilty. He accepts that without question,” he stated. “Now, you’re going to have to be judges who decide his sentence.”
Preponderance of the evidence
West explained that the burden of proof is not longer beyond a reasonable doubt, but by a preponderance of the evidence. “That means you put on evidence that says more likely than not that’s true,” he explained. “Once a factor has been proven by a preponderance of the evidence that factor must be considered by each of you.”
West used the animal cruelty case for NFL quarterback Michael Vick as an example. He talked about how many of the dogs recovered in that case had to be destroyed because their behavior was so ingrained that thy could not be reintroduced into society. “They evaluated those dogs and they put to sleep the worst of the worst,” he pointed out. “You have to decide after this presentation as to whether or not Albert is one of the worst of the worst and needs to be put to death. Or, is there something about him that you are going to learn about that will persuade you otherwise.”
West told the jury that the rules of evidence are different in the penalty phase from what they observed during the first two phases of the trial. “There’s a lot of stuff that you couldn’t know during the trial,” he said. “You’ve got to know the rest of the story.”
Defense game plan
Besides members of the Gaxiola family, the defense plans to call professionals to the witness stand who have evaluated the defendant. There are also plans to tell the jury about the roles played by defendant’s Forde and Bush.
In the end, West told the jury that he is confident that they will have a full picture of Albert Gaxiola. “He’s not somebody that has to be put down because he’s the worst of the worst,” he said. “He made bad choices. There’s no doubt about that.”
At the conclusion of West’s remarks, court recessed for the evening. The state will be provided an opportunity to make an opening statement when the trial resumes at 10:30 a.m. Thursday morning.