The defense case continues for Gaxiola on Tuesday morning

Albert Gaxiola
(pool photo by Benjie
Sanders/Arizona Daily
Star)

The Pima County Superior Court jury hearing evidence in the trial for alleged double murderer for Arivaca resident Albert Robert Gaxiola will resume on Tuesday morning at 10:30 a.m.

Gaxiola, 43, faces two counts of first-degree murder in the May 30, 2009 deaths of Raul “Junior” Flores and his daughter, Brisenia, 9. 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.

Evidentiary ruling

The defense had requested that the Pima County Attorney’s Office provide copies of evidence seized from Bush and Forde at the time of their arrests. The Bush material, according to Deputy County Attorney Rick Unklesbay, included copies of fake military credentials and materials advocating white supremacy. “These are items the Mohave County Sheriff’s Department took out of Mr. Bush’s house,” he told Judge John S. Leonardo.

Among the items are the fake identification cards created by Bush, as well as white supremacist literature. “I would concede the potential relevancy of the items found in Mr. Gaxiola’s house and the items found in the Honda,” Unklesbay said.

Unklesbay said the prosecution objects to the relevancy of the fake ID cards and white supremacist information taken into evidence in Mohave County. “There is no relationship between that material and Mr. Gaxiola,” he told Leonardo.

The big picture

Defense counsel Jack L. Lansdale told Leonardo that they believe the jury needs to have the entire story. “The state is portraying my client as potentially having some sort of relationship with Mr. Bush even though clearly the evidence that’s coming in it seems like the relationship is with Ms. Forde,” he said. “We believe that all of the white supremacist materials and the things that were located among the Bush property are relevant to how unlikely it would have been that any sort of a serious relationship would be required to commit this crime would be occurring between this self-proclaimed white supremacist and our client. We believe that the jury should be able to evaluate all of this in light of all of the other testimony.”

Leonardo suggested that Det. Juan Carlos Navarro, the lead detective for the Homicide Unit at the Pima County Sheriff’s Department, could be called back to the stand to testify as to how many fake credentials were taken into custody during the investigation. The judge suggested that the white supremacist materials are a different issue to consider. “I don’t think there is any connection to white supremacy in this case. This is the third trial and I haven’t heard anything about it up to this point in the trial,” he said. “I’m not sure about the relevancy of that material.”

Forde’s half-brother

Lansdale had disclosed earlier in the trial that the defense had intended to call Forde’s half-brother Meryl Metzger as a witness to testify regarding discussions he had with Forde prior to the home invasion. At last report, it appeared that Metzger has health issues preventing him from traveling to Tucson. “It looks like he is going to evaporate,” Lansdale said. “In his statement, he had talked about Shawna Forde being a white supremacist, but that’s apparently not going to come in. Mr. Bush clearly is a white supremacist. We all know that he is.”

Leonardo suggested that ties between Forde and Bush to white supremacist activities are not clear. “He and Forde both may have been, but I don’t recall any ties between activities in this case and white supremacy,” he said.

Lansdale pointed out the obvious. “I, obviously, have an Hispanic client,” he said. “How unlikely would it be that a hardcore white supremacist would be engaging in a close partnership to do what has been alleged to have been done in this case? It’s one more piece of evidence in this giant scheme of things that we should be allowed to argue.”

Leonardo pointed out that Gaxiola probably should have known the beliefs of Bush and Forde. “I would assume that your client was aware that they were white supremacists,” he said. “The fact that they were has no relevance to the case at all even in the way that you suggest.”

“It may well be that he wasn’t aware that they were white supremacists and that he wasn’t aware of what kind of people they were and what they were capable of doing,” Lansdale replied.

Probable schedule

The defense has scheduled a full day of witnesses on Tuesday and an expert witness scheduled for Wednesday morning. The defense has also recorded a video of the drive between Arivaca Junction and Arivaca to demonstrate what the drive along the Arivaca Road looks like.

Closing arguments in this phase of the trial are anticipated for Thursday, June 30. 

Memory expert testifies about how crime witnesses remember the details

The Pima County Superior Court jury hearing testimony in the double-murder trial for Arivaca resident Albert Robert Gaxiola heard expert testimony, Tuesday, morning from a Los Angeles-based memory expert.

Gaxiola, 43, faces two counts of first-degree murder in the May 30, 2009 deaths of Raul “Junior” Flores and his daughter, Brisenia, 9. 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.

Mitchell Eisen

Mitchell Eisen, who holds a Ph.D. in psychology and is a professor of psychology and director of the Forensic Psychology Graduate Program at California State University, Los Angeles.

An hour into his testimony regarding memory and the studies he has conducted defense attorney Steven D. West started to use the home invasion at the Flores home as an example. “Assume a person is a witness to a horrific home invasion where…” West started to ask.

After the prosecution’s objection was discussed at the bench with Judge John S. Leonardo West changed his hypothetical example. Eisen testified that memories are the best when they are fresh. “Right after an experience sometime people may not give all of the information for a variety of reasons, but you would expect that to be their best indication of what they remember,” he said. “If they are interviewed multiple times you would expect that they would be relatively consistent about the major aspects of it.”

Eisen was asked if changes in testimony regarding a remembered experience should be view warily. “Then all of a sudden there’s big change and they are adding the involvement of someone they really knew well they you would wonder where does that change come from,” he said. “If that is a significant part of the experience why didn’t they recall it right away?”

On cross-examination, Eisen was asked about questions that are answered during a called to 9-1-1 such as the one heard earlier in the trial involving the surviving victim Gina Gonzalez. “If you are simultaneously reporting it you are reporting what you are seeing,” he said. “If you remember anything the big ones are the easiest. Can you remember a little detail later on you forgot to mention earlier? It happens all of the time.”

Eisen was asked about two different versions of the same event. “You wouldn’t expect major content to change. If two memory reports are at odds they both cannot be true,” he testified.

Eisen said there is a difference between being wrong and just omitting details. “Minor omissions and minor additions are common and expected,” he said.

The jury asked a couple of questions that got to heart of the issue. The jury asked if recognizing someone as part of a memory is dependent upon the role of the context in which a person is recognized. “Recognizing a face is a subset of all memory research,” he said. “In regards to context, it depends how well you know them.”

The jury also asked about the role of trauma and post-traumatic stress in being able to remember of details in an event. “Is it possible that people could have functional amnesia for a traumatic event and then have it come back to them? Absolutely, but who is to say what the accuracy of that is,” he said.

The trial is recessed until Tuesday, June 28, at 10:30 a.m. due to a mandatory judicial conference the remainder of this week. 

Alleged drug kingpin denies knowledge of murder plans

Albert Gaxiola
(pool photo by Benjie
Sanders/Arizona Daily
Star)

The reputed leader of drug smuggling in Arivaca denied, Tuesday, any knowledge in Pima County Superior Court of the planned home invasion on May 30, 2009. In fact, Edward Anson “Eddie” Valdez testified that Brisenia Flores and her sister were invited to attend a birthday party for his daughter that day. 

Gaxiola, 43, faces two counts of first-degree murder in the May 30, 2009 deaths of Raul “Junior” Flores and his daughter, Brisenia, 9. 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.

Criminal record

Valdez, 35, testified that he lives on a ranch near Arivaca Lake with his mother, brother, girlfriend and children. Valdez is currently on probation from U.S. District Court at Tucson for a conviction on the charge of possession for sale or conspiracy to possess for sale a quantity of marijuana. Valdez said he is required to stay out of trouble, maintain employment and submit to urinalysis. “I take a piss test,” he said.

As far as unscheduled visits by his federal probation officer, there have never been any. “She tried to come out to my house one time, but it was too far,” he said. “She thought Amado was Arivaca.”

Oin Oakstar
(pool photo by Benjie
Sanders/Arizona Daily
Star)

Valdez admitted to knowing former Arivaca drug dealer Oin Oakstar, who testified last week.  “I’ve known him since I was a kid,” he said. “He’s not very truthful. He’s a drunk. He’s a junkie.”

Valdez also admitted knowing Gaxiola. “I met him through some friends,” he told the jury.

Valdez also testified that there is a familial relationship, as well. “His uncle is my son’s stepfather,” he said.

Small town

And, Valdez admitted knowing Flores and his family. “I had seen him a week earlier and I was having my daughter’s birthday that day and I asked him to bring the girls over,” he testified.

Valdez denied any involvement in drug trafficking since his conviction in U.S. District Court at Tucson. Testimony from Oakstar suggested a discussion had taken place in early 2009 involving Valdez, Gaxiola and himself regarding the need to eliminate Flores as competition in local drug smuggling. Valdez denied participating such a conversation. 

Valdez testified that he first heard about the murders the morning of May 30. “I walked into the store and the lady, Pat, who works there was crying and I asked her what happened and she told me what happened,” he said.

Deputy County Attorney Rick Unklesbay began cross-examination by pointing out that Valdez had legal counsel, Walter Nash, with him in court. “Where you aware that Det. Navarro attempted to contact you and both probation and your attorney declined to make you available?” Unklesbay asked. “No,” Valdez replied.

Former kingpin

Unklesbay started to ask Valdez if he played a significant role in the Arivaca drug trade prior to his federal court conviction. The result was a defense objection and a lengthy bench conference. Unklesbay asked Valdez if he had significant competitors in the drug trade in Arivaca at that time. “Gaxiola wasn’t around at that time and Junior was doing his thing, but I’m not sure what he was doing,” Valdez said.

Valdez was asked about a conversation he had with Gaxiola about marijuana and a relationship with Junior Flores in weeks prior to the home invasion. “The only thing he told me was they were beefing. He didn’t tell me why,” he said. Valdez admitted he spoke to Flores regarding his discussion with Gaxiola.

Valdez was also asked if he knew what the term green light means. He was also asked if Gaxiola came to him to ask permission to kill Flores. He denied knowing anything about the situation.

Forde’s license plate

Retired Tucson Police Officer Lewis Adams testified regarding a request from Gaxiola neighbor Inga Hartman. Hartman has testified that she asked her friend Byron Easter to write down the license plate number of an orange Honda Element belonging to Forde. She said she called Adams on June 1, two days after the home invasion, asking him to find out the name of the vehicle’s owner. Adams testified that Hartman called him on Saturday, May 30, the morning of the murders.

Adams was also asked about the ability of cellphone users to acquire a usable signal between Arivaca and Arivaca Junction at I-19. Adams testified there were no usable signals until you reached “Cellphone Hill,” three miles east of Arivaca on the Arivaca Road. Adams testified that you could acquire usable cellphone signals from several different carriers in different locations.  

The trial is adjourned until Tuesday, June 28, due to a requirement that Judge John S. Leonardo to attend the annual judicial conference of all judges in the state in Phoenix. 

Three motions for mistrial and one for judgment of acquittal all denied

Albert Gaxiola
(pool photo by Benjie
Sanders/Arizona Daily
Star)

The Pima County Superior Court trial for alleged double-murder Albert Robert Gaxiola survived three defense motions requesting mistrials and a defense motion for a judgment of acquittal this week.

Gaxiola, 43, faces two counts of first-degree murder in the May 30, 2009, deaths of Raul “Junior” Flores and his daughter, Brisenia, 9. 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.

First mistrial

Prosecution witness Oin Oakstar spent all of Tuesday and Wednesday morning testifying to his role in the fatal home invasion. At the completion of Oakstar’s testimony Defense counsel Jack L. Lansdale offered a motion to Judge John S. Leonardo requesting a mistrial based upon testimony provided by Oakstar. “I feel compelled to point out that error has occurred and I request a mistrial,” Lansdale said.

Lansdale said Oakstar had testified for the first time that Gaxiola had briefed him on the morning of May 30 regarding the botched home invasion earlier that day. “Never ever did Mr. Oakstar ever say that on the morning of May 30 when my client called him on the phone that my client made any comment incriminating himself in the homicide that occurred in the early morning hours of May 30,” he said.

Lansdale told Leonardo that for the first time Oakstar said on direct examination that he asked Gaxiola what happened and he was told that thing didn’t go as planned. “It was a clear indication that he was either involved or knew what happened in the homicide,” he reiterated.

“That is a distinction, but it’s insignificant,” Leonardo said. “The clear implication is that he knows something about what went on,” Lansdale replied. “That’s never been said judge. That’s my point. It’s never been said, ever, ever by Mr. Oakstar.”

Lansdale referred to Oakstar’s testimony in prior trials. “He attributed the statement to Shawna Forde in the Shawna Forde trial,” he said. “Then, in the Bush trial he attributes the statement to Mr. Bush.”

Second mistrial

During presentation of the prosecution case, each and every detective and technician who engaged in collection and processing of evidence has been questioned regarding their role and the actions they took. As lead detective for the investigation, Det. Juan Carlos Navarro was asked numerous questions Thursday afternoon, about why only certain items of evidence were submitted for DNA testing.

Defense counsel Steven D. West asked if cost was a consideration in the decision as to which items were tested. “It could be,” Navarro responded, adding that he needed approval from his supervisor since the bill for the department paid testing.

The Pima County Sheriff’s Department reported the amount spent for DNA work on the Gaxiola, Bush, and Forde homicide case is $22,035. “That is only our cost,” said Deputy Dawn Barkman, department spokesperson. “This does not include any costs that the Pima County Attorney’s Office might have incurred.”

West was meticulous in his inquiry of Navarro. “Weren’t you the least bit curious about who was driving that vehicle?” West asked. “Based on information we had we believed we knew who was driving,” Navarro replied. “Shawna Forde?” West asked. At that point, Deputy County Attorney Kellie Johnson requested a bench conference with the judge. “Your honor, I’m going to withdraw that question,” West stated after the bench conference.

On re-direct questioning by Johnson, Navarro was asked about the teal-colored van brought up a few minutes earlier by West. “Did your investigation, in its entirety, suggest to you that Mr. Gaxiola was driving that van at the time of the murders?” Johnson asked. “Yes,” Navarro answered.

Correcting testimony

On Friday morning, after arguing the motion for a mistrial, which was denied by Leonardo, Navarro was returned to the stand with Johnson asking questions designed to correct his testimony from the day before. “At the end of the day yesterday, I asked you whether you had evidence that showed that Mr. Gaxiola was driving the van and you had answered yes. Did you misunderstand my question to you yesterday?” Johnson asked. “Yes I did,” Navarro replied. “Had you understood what I was asking would you answer actually been no to that?” Johnson asked. “Correct,” Navarro replied. “Is it fair to say that you are aware of no evidence that Mr. Gaxiola was driving the van either in the afternoon of the 29^th or on the morning of the 30th?” Johnson asked. “Correct,” Navarro replied.

In arguing a Rule 20 motion, requesting a judgment of acquittal, Lansdale raised issues regarding testimony by Gonzalez at the Forde trial on Jan. 25. “On direct and cross, she did not say that Albert Gaxiola was present,” he pointed out.

After questions about the voices Gonzalez heard she acknowledged that Gaxiola speaks Spanish and that was his voice she heard. “That was the first time, January 2011, that she ever said yep that was Albert,” Lansdale said. “Now, she is saying it was his voice.”

Lansdale pointed out to Leonardo that in considering a Rule 20 motion “everyone seems to think if it’s a question of credibility it has to go to the jury. Everyone seems to think that for some reason. That’s not the law.”

In making his argument Lansdale referred to the cross-examination on Thursday by defense counsel Steven D. West when he asked Det. Juan Carlos Navarro about his numerous interviews with the surviving victim. “When you contacted Ms. Gonzalez were you paying attention to what she was telling you, were you listening?” West asked. “Of course,” Navarro relied with a stunned look on his face.

Navarro confirmed that at no time leading up to the Forde trial did Gonzales mention to him in investigative interviews that Gaxiola was present in her home during the murders of her husband and daughter.

Leonardo denied the motion for a judgment of acquittal. “I believe there is substantial evidence that would warrant conviction on all of the counts,” he said.

Third mistrial

After Leonardo’s ruling, the defense made its third motion for a mistrial in three days. “We believe that the evidence that was allowed to be admitted as to the plan on Junior Flores has unduly prejudiced this defendant,” Lansdale said.

That motion was denied, as well.