After filling out questionnaires at Pima County Superior Court last week there are 97 prospective jurors remaining for the death penalty trial of Albert Robert Gaxiola before Judge John S. Leonardo.
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.
Originally, 255 jurors were summoned to fill out the questionnaire on May 25. According to defense counselor Jack L. Lansdale, one juror did not fill out the questionnaire and one juror was excused. The jury commissioner had one additional juror fill out a questionnaire. Thus, of the 226 prospective jurors there are 97 remaining. Leonardo ordered that 49 jurors report at 10:30 a.m. on Wednesday and the remaining 48 jurors to report at 10:30 a.m. on Thursday.
Of the seven pending motions before the court in this case a motion for sequestered or individual voir dire of jurors regarding death penalty issues was deemed the most critical. In making his argument to Leonardo, Lansdale referred to a study conducted by the California Supreme Court in 1979. “The Haney Study indicated that the lack of sequestered voir dire caused a statistically significant increase in a feeling that the defendant was guilty because of the way the group voir dire questions were conducted,” he said. “It also indicated that jurors had a tendency to not be as forthcoming in stating what their true beliefs were once they saw one or two other jurors being excused after indicating in open court what their beliefs were about the death penalty.”
Co-counsel Steven D. West told Leonardo that after reviewing the questionnaires in this case it is obvious that some of the jurors are aware of the issues in this case. “Far more of the venire knew about this case, about 50 percent of the people in the present venire,” he said. “We just think that it would be far more efficient to do individual voir dire with those people who have knowledge.”
Deputy County Attorney Rick Unklesbay suggested that the motion was untimely coming on the even of trial. “They are basing their motion on a 1979 study and a 1980 California case,” he said. “This issue could have been brought before the court months ago and not the eve of 100 jurors coming in over the next two days.”
Leonardo took the motion under advisement promising to rule by the end of the day on Tuesday.
Regarding last minute interviews of potential witnesses, Unklesbay said they would like to speak on Tuesday with a person who has been identified in the Forde and Bush trials as the reputed boss of the drug trade in the Arivaca area. “They have listed a person by the name of Eddy Valdez,” he said. “We have a very brief report from their investigator the defense has interviewed Mr. Valdez.”
Unklesbay said Tucson attorney Walter Nash represents Valdez and may have been served with a defense subpoena on behalf of his client. “Mr. Nash indicated that he would accept service of a subpoena for his client, but after Mr. West and I reviewed the rule we were not comfortable with him accepting service,” Lansdale told Leonardo. “This is a witness that I do not have a whole lot of control over and my investigator reported to me Friday night that she had gone down to Arivaca and stopped by Mr. Valdez’s residence three or four occasions. She wasn’t able to talk to him on Friday.”
Attempts will be made to contact Valdez through his attorney.