Thursday, July 07, 2011

Prosecution plans to use Bush confession to show the true role played by Gaxiola

Rick Unklesbay

The Pima County Superior Court jury that will decide if former Arivaca resident Albert Robert Gaxiola pends the rest of his life in prison or is put to death by lethal injection that the prosecution plans to share the confession by codefendant Jason Eugene Bush in which he characterizes the role played by the defendant in this case.

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.

State’s opening statement

Deputy County Attorney Rick Unklesbay reminded the jury that their roles in the penalty phase of the trial are a bit different than they were during the first two phases. “Ultimately, what the entire jury has to do is decide whether or not there are any mitigating factors sufficiently substantial to call for leniency,” he said. “You may find that some mitigation is proven to you, but then it’s up to you to decide what weight to give to that particular mitigating factor and whether or not it is sufficiently substantial by itself or in combination with other mitigation to call for leniency.”

Defense counsel Steven D. West had told the jury, Wednesday, that his client plans to allocate to the jury at the conclusion of testimony in the penalty phase. “He does that much like Ms. Gonzalez did yesterday,” Unklesbay explained. “It’s not testimony subject to examination. It’s a statement he gets to give to you.”

Unklesbay suggested that this will be the jury’s chance to weigh any expressions of remorse against the sentiments found in text messages exchanged between Gaxiola and co-defendant Forde just hours after the murders. “Mr. West suggested that Albert Gaxiola will get up at the end of this phase and express his remorse over what happened,” he said. “What you get to consider at the same time are the text messages presented to you in phase one.”

Sweet dreams

During closing arguments in the first phase of the trial Unklesbay reminded the jury about the text message sent by Gaxiola read “Sweet dreams.” Unklesbay paused for a moment. “They had just killed a 9-year-old. They had just killed her father. They had just wounded Gina,” he said. “And, Albert Gaxiola’s text message back to Shawna Forde was ‘Sweet dreams.’ Shawna Forde’s reply was: ‘You’re one of my minutemen.’”

For a moment, Unklesbay found himself at a loss for words during his closing argument. “I’m not sure what words can adequately characterize the actions of these people,” he said. “This is beyond outrageous. This is just downright scary.”

Minor role?

As the defense position that Gaxiola played a minor role, Unklesbay told the jury they should be skeptical. “As you heard, the other two folks in this case are sitting on death row,” he said. “You will hear Det. Navarro’s interview with Mr. Bush after his arrest in June 2009.”

Holding a transcript of the interview, Unklesbay pointed to a question asked of Bush about what happened inside the Flores home. “Mr. Bush responded ‘I thought we were going to be outside. When Alberto got back around 10 that was when he’s like okay you guys are going to have to go inside. I was not really prepared for going inside,’” he read.

Later in the detective interview, Bush was asked if Gaxiola said why they would have to go inside. “Bush said ‘no. He just said the stuff’s inside,’” Unklesbay read.

In his interview with Navarro, Bush said the original plan called for Gaxiola and Oakstar to speak with Flores, but that when Oakstar failed to show up that plans changed. “Bush told Det. Navarro ‘I had the .45 that he gave me,’” Unklesbay read. Investigators never recovered that weapon.

Unklesbay told the jury that Navarro had asked Bush when he was told that members of the Flores family would need to be killed. “When did you get that order to shoot everybody in the house? ‘Right there by the door.’ Who gave the order? ‘Alberto,’” he read. “Question, what did he tell you? Answer ‘You’re going to have to shoot this guy.’ Why, because he knew who he was.”

Inconsistent arguments

Finally, Unklesbay pointed out to the jury an inconsistency in the defense arguments. “The defense wants to present to you that first of all he wasn’t present. Now, they want to present to you that he had a minor role,” he said. “Make no mistake about it, there is no minor participation on the part of Mr. Gaxiola.”