Wednesday, July 13, 2011

Questions continue regarding methods used by expert witness

Mark Cunningham

The Pima County Superior Court jury that will decide if former Arivaca resident Albert Robert Gaxiola spends the rest of his life in prison or is executed by lethal injection continued to hear testimony Wednesday morning regarding the negative factors in the defendant’s life that made him the person he is today.

On July 1, 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, Bush and 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.

Mark D. Cunningham, Ph.D., is a board certified clinical and forensic psychologist from Dallas, Tex. Cunningham was hired by the defense to review Gaxiola’s life to this point with an eye towards explaining how he came to be convicted of two counts of first-degree murder and is facing the death penalty. 

Cross-examination resumes

Deputy County Attorney Rick Unklesbay resumed cross-examination asking Cunningham to comment on how persons make the choice they make. “People are different in that they can make choices in their lives about who they want to be and what kind of life they’re going to live, isn’t that true doctor?” he asked.

“Yes and no,” Cunningham responded. “What happens is that the people who have these risk exposures a much greater percentage of those end up choosing badly.”

Unklesbay asked Cunningham about his work testifying around the country on behalf of defendants facing the death penalty. “In all of those cases I’ve been retained by the defense,” Cunningham said.

“You don’t get hired by the prosecution do you?” Unklesbay asked.

“No sir. The phone doesn’t ring,” Cunningham responded. “I would certainly provide this testimony if your office requested it.”

“Don’t wait by the phone,” Unklesbay responded.

“Yes sir,” Cunningham said.

The cost

Unklesbay asked Cunningham what he was being paid to provide his opinions in this case. “My fee is $300 per hour,” he responded.

“What is your fee in this particular case?” Unklesbay asked.

“Before I came here a couple of days ago I had about 50 hours into this case. I’ve been here two-and-a-half days in addition to that,” Cunningham testified.

“Is it accurate to say that your final bill is going to be somewhere between $25,000-$30,000?” Unklesbay asked.

“That’s a little high. I would expect it’s going to be in the low 20s,” Cunningham responded.


Unklesbay then reminded Cunningham and the jury that his scope of inquiry was somewhat limited. “Since you didn’t review the police reports and you didn’t read the witness statements in this case you do not know what choices Mr. Gaxiola made in completely this offense. Is that accurate sir?” he asked.

“The jury has found…” Cunningham started to answer.

“I’m not asking what the jury has found, sir, I’m asking…” Unklesbay interrupted.

“I’m going to object, your honor,” said defense counsel Steven D. West.

“Overruled. The witness will answer the question,” said Judge John S. Leonardo.

“You don’t know what choices Mr. Gaxiola made in this case because you didn’t review the case and you didn’t speak to him,” Unklesbay repeated.

“I don’t know because I wasn’t there. If I had been there and observed it then I would know. Beyond that I don’t know,” Cunningham responded.

“That’s all I have,” Unklesbay said.

In all, Cunningham testified a little over four hours starting Tuesday afternoon and ending on Wednesday morning.