Brisenia Flores is at eternal rest while two of her three killers face an uncertain future

Raul & Brisenia
Flores

Undocumented persons who enter the United States illegally have raised concerns among certain elements of the population in recent times. Ironically, it was the brutal murder of a 9-year-old Hispanic American born and raised in the rural southern Arizona community of Arivaca by persons affiliated with an anti-immigration splinter group that momentarily struck a raw nerve in our society.

Home invasion

During an early morning invasion of the home Raul “Junior” Flores and Gina Gonzalez, staged by Shawna Forde, founder of Minuteman American Defense, Jason Bush, a white supremacist and reputed local drug dealer Albert Gaxiola, the lives of Junior and his daughter, Brisenia, were snuffed out when they were brutally shot and killed and Gina was severely wound by two gunshots

If not for the desire to attend a birthday party in Arivaca for another young Hispanic American on May 30, 2009, Brisenia might still be with us. Otherwise, Brisenia might have stayed the night of May 29-30 with her maternal grandparents in the Santo Tomas area of the town of Sahuarita and avoided a brutal murder, as did her older sister Alexandra, who had also been invited to the same birthday party, but decided not to attend.

Gina Gonzalez

Brisenia and her parents, Junior and Gina, had traveled the 40-plus miles from Arivaca to Tucson the afternoon of May 29, 2009, to shop and to pay bills. Gina testified during the three trials for Forde, Bush and Gaxiola, that Brisenia was going to attend summer school in the Sahuarita Unified School District, thus she needed new shoes. They had also hoped to stop by a bank in order to procure a money order to pay charges recently placed on a credit card for a vacation trip the family had taken. Brisenia got her new shoes, but the banks were closed by the time they arrived in Tucson, so the bill went unpaid.

On the way home to Arivaca, the Flores family stopped at the home of Gina’s mother and father in Santo Tomas. Alexandra and Gina’s younger sister, Diana, were expected to return to Arivaca that night, but Alexandra persuaded her parents to allow her to stay another night at her grandparents and Diana was not feeling well and decided not to make the trip. Those decisions possibly saved their lives, as the death toll could have been five instead of two.

What brought together an Hispanic family of born-and-bread American citizens and a the leader of a splinter border-watch group from the state of Washington, a white supremacist from Oregon and a reputed drug dealer from Arivaca? It’s simple, greed and financial gain.

Cast of characters

Shawna Forde had come to the Arizona/Mexico border to participate in efforts to stem illegal immigration from Mexico after failed careers as a teenage prostitute, a manufacturing job at Boeing Aircraft and an unsuccessful election attempt to become a member of the Everett, Wash., city council.

Jason Bush had come to southern Arizona after being “recruited” by Forde. Forde thought she had found Bush, but there are indications that he sought her out hoping to gain sought favorable capital with federal law enforcement agencies looking into Forde’s activities on the border. Bush is a self-proclaimed white supremacist who masqueraded as a former army ranger and black ops secret agent with the self-proclaimed nickname of “Gunny” a shorthand referral to the rank of gunnery sergeant in the U.S. Marine Corps.

Albert Gaxiola as not born or raised in Arivaca, but had lived on-and-off in that southern Arizona community since his late teens drawn by the easy money of drug smuggling introduced to him by his mother and grandfather. Gaxiola and Forde reportedly met one night in the local watering hole, La Gitana Cantina where trial testimony indicated that Forde had picked a cigarette from Gaxiola’s lips and crushed it on the floor demonstrating to him that she was a person with a plan that would benefit him and her.

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

Minutemen

After Forde was kicked out of the Minuteman Civil Defense Corps she founded Minuteman American Defense (MAD). It’s one thing to found an organization and it’s another thing to generate the funding to pay for that organization’s activities. That’s where her encounter with Gaxiola at the bar provided her with a plan that she hoped would provide the funds for her organization.

Sheriff Clarence W.
Dupnik

Forde learned from Gaxiola that he was one of the local drug smugglers who had perceived competition in the person of Junior Flores. Early in the investigation of the fatal home invasion, Pima County Sheriff Clarence W. Dupnik told media representatives that Flores was “a large dealer” who likely had connections to large Mexican drug cartels and that Flores “has a history of being involved in narcotics.” Dupnik provided no tangible evidence other than his comments to back up those claims and a search of local court records yielded no indication of previous arrests, prosecutions or convictions on drug-related charges for Flores. When asked during the Forde trial Gina denied that her husband was a drug dealer. Detectives, however, found plastic wrapping materials commonly used for packaging marijuana in a barn on the Flores family property. Arivaca residents who testified during all three trials said it was common knowledge that Junior was a drug dealer. It would appear that while Junior was not convicted in a court of law, he had been judged to be guilty in the court of public opinion in the community of Arivaca.

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

Rivals

Gaxiola and his drug-smuggling partner, Oin Oakstar, looked upon Junior Flores as their competition, pure and simple. Oakstar testified at all three trials that both he and Gaxiola schemed for several months about ways to eliminate, a polite word of kill, Flores thus removing him as their competition in the marijuana smuggling business. However, Oakstar testified that the killing of Flores and his daughter during the May 30, 2009, home invasion were a breach of the so-called “Arivaca Rules.” Those rules, according to Oakstar, were that the killing of a rival drug dealer was a cost of doing business. At the same time, according to Oakstar the “Arivaca Rules” specify that the rival drug dealer’s wife and children are off-limits.

Forde tried to recruit help in her get rich scheme from some fellow “minutemen” in Colorado. They turned out to be informants for the Federal Bureau of Investigation (FBI), who testified at her trial. These informants met with Forde and she told them that she had a “scout” in Arivaca looking at potential targets where money and drugs could be easily taken. Forde also told the FBI informants that she wanted to start her own organization on a model similar to the private military-style security firm known as Blackwater and that the funding would come from taking down drug smugglers in southern Arizona. They told her they would consider her proposal, privately chuckling about it later. These informants contacted their handlers in Denver who contacted the FBI Office in Phoenix. They even supplied the FBI with a map of potential targets in Arivaca. That map disappeared from the FBI evidence locker in Phoenix and at last report had been destroyed.

Plans set in motion

Fast-forward to the afternoon of May 29, 2009. Gina and Brisenia are in the front yard of their home looking for a missing set of keys. A teal-colored Astro van drives by very slowly with Bush behind the wheel and Forde in the front passenger seat. What Gina did not know until later was that the van belonged to Gaxiola and Oakstar was crouched down behind Forde and Bush guiding them as they scoped out the Flores home.

Later that night, Gaxiola returned to Arivaca from Tucson and stopped by the home where Oakstar was staying with his girlfriend. Oakstar convinced Gaxiola that he was too drunk and full of drugs to go along on the operation to take out Junior Flores. Oakstar testified that he and Gaxiola had discussed killing Junior by sniper. Given the activities earlier in the day, Oakstar suspected there would be a different approach to killing Junior. Sometime between 12:30 and 1 a.m., Forde and Bush banged on the front door of the Flores home demanding entrance in the guise of law enforcement officers searching for escapees.

Murder

Once inside the Flores home, Junior, Gina and Brisenia were confronted in the living room. Junior was the first to be killed as Bush shot him six times with a .45 caliber handgun that has never been found. Gina was shot twice, first in the right leg breaking the femur and then in the right chest as she is falling to the ground. That bullet exited under her right breast. Gina had a titanium rod inserted in her femur from the hip to the knee.

Up until that point, Brisenia had been asleep on the love seat in the living room and she started to wake up as her mother pretended to be dead on the floor. Bush questioned Brisenia as to the whereabouts of her sister Alexandra pointing to Gina asking if she was her sister. Brisenia becomes upset when she realized that her mother and father appeared to be dead. Bush reloaded his .45 caliber handgun and shoots Brisenia twice in the face. Bush claimed Gaxiola gave him the handgun he used to kill Junior and his daughter and that he did so as Forde and Gaxiola pointed their weapons at him.

While pretending to be dead, Gina heard her daughter killed, the last sounds of her husband’s life ending and the search of her home. Gina heard two additional males enter her home speaking in Spanish. Later, she recognized one of the voices as that of Gaxiola. The fourth person she heard in her home has never been identified or charged.

Gunfight

After searching for drugs and money, but not finding any, the Fore, Bush, Gaxiola and the unidentified male leave the Flores home. Gina manages to get up and check on the condition of Brisenia and she called 9-1-1 on her phone. Despite her leg wound, Gina made her way to the kitchen and retrieved a .40 caliber handgun kept there by Junior. The home invaders reentered the Flores home when they realized that an AK-47 rifle had been left behind. Such a rifle with DNA from Gaxiola, Forde and Bush was found on the stove in the kitchen of the Flores home. A gunfight ensued between Gina and Bush with Bush sustaining a gunshot wound to his leg. His blood was found outside of the Flores home and in the teal blue van.

Chuck Stonex

The morning of May 30, 2009, Oakstar was asked to take pain medication to Gaxiola’s home for Bush. Detectives arrested Oakstar as he walked back to where he was staying in Arivaca. Forde contacted another minuteman crony from New Mexico who was in Arizona to attend a cookout in Hereford. She asked Chuck Stonex to purchase some medical supplies and to come to Arivaca to attend to Bush’s leg wound.

Laine Lawless attempted to
enter the courtroom in
disguise despite being a
witness.

On the evening of May 30, Stonex and Laine Lawless, founder of Border Guardians, traveled to Arivaca to attend to Bush’s gunshot wound and for Lawless to meet Forde. Stonex testified that he met Lawless for the first time at the cookout in Hereford. In Arivaca, Stonex treated the Bush leg wound and Lawless agreed to take a set of keys for Forde’s car to Gaxiola in Tucson. The next day, Gaxiola drove Forde’s car to Arivaca and Forde and Bush went to Tucson where they spent the night in a motel after Stonex joined them for dinner. Within the next couple of weeks, Forde was arrested in Cochise County. Bush was arrested outside of Kingman and Gaxiola was taken into custody in Tucson.

Trials

Forde was the first defendant tried before Judge John S. Leonardo in Pima County Superior Court. She was convicted on all eight counts including the two counts of first-degree murder. The jury sentenced her to death on both murder counts and Leonardo sentenced her to an additional 65 years in prison on the other six counts. The death penalty convictions and sentences were automatically appealed to the Arizona Supreme Court.

Bush was the next defendant to be tried. He was convicted on all eight counts including the two counts of first-degree murder. The jury sentenced him to death on both murder counts and Leonardo sentenced him to an additional 78 years in prison on the other six counts. The death penalty convictions and sentences were automatically appealed to the Arizona Supreme Court.

Judge John S. Leonardo

Gaxiola was the third and final defendant to be tried. He was convicted on all eight counts including the two counts of first-degree murder. The jury sentenced him to life in prison for the murder of Junior Flores, but was unable to decide the appropriate sentence for the murder of Brisenia. The prosecution could have asked the court for a new jury to be empaneled to hear evidence regarding the appropriate penalty, however the prosecution decided to withdraw its notice to seek the death penalty allowing Leonardo to sentence Gaxiola on the two murder convictions as well as the other six counts. For the murder of Brisenia Flores, Gaxiola was sentenced to natural life in prison. For the murder of Raul Flores he was sentenced to life in prison with the possibility of applying for parole after serving 25 calendars years. On the remaining six counts, Gaxiola received 54 years in prison to be served consecutively to the sentences in the two murder counts.

Gaxiola sentenced natural life in prison

Albert Gaxiola
(pool photo by Mamta
Popat/Arizona
Daily Star)

Pima County Superior Court Judge John S. Leonardo sentenced former Arivaca resident Albert Robert Gaxiola, Monday morning, to natural life in the Arizona Department of Corrections for the May 30, 2009, murder of 9-year-old Brisenia Flores during a home invasion in Arivaca.

In addition, Gaxiola was sentenced to life in prison with the opportunity to apply for parole after serving 25 calendar years for the murder of Raul “Junior” Flores, Brisenia’s father.

On July 1, a Pima County Superior Court jury returned guilty verdicts against Gaxiola, 44, on two counts of first-degree murder as well as six other counts. On July 15, during the penalty phase of the trial the jury sentenced Gaxiola, who was facing the death penalty, to life in prison for the first-degree murder of Raul Flores, but was unable to reach a verdict on the sentence for the murder of Brisenia Flores. The prosecution opted to withdraw the death request regarding the murder of Brisenia Flores after consulting with the surviving victim, Gina Gonzalez.

Prior to pronouncing sentence, Leonardo was asked by Deputy County Attorney Rick Unklesbay to impose natural life sentences for both murder convictions. “By case law, the court doesn’t need any aggravating factors,” he said. “The court may chose between natural life and or life with parole based on the facts that you heard at the trial.”

Defense counsel Jack L. Lansdale argued for life in prison with the possibility of parole and concurrent sentences for all of the charges. “In reality, when we’re dealing with this much time and a gentleman who was 42-years-old when he was taken into custody what we’re talking about may be academic,” he said. Lansdale calculated that the best-case scenario would allow his client to apply for parole after he had turned 77-years-old.

Sentences imposed Monday:

·       Count 1—first-degree murder—natural life in prison, no parole opportunity.

·       Count 2—first-degree murder—life in prison, with the opportunity to apply for parole after serving 25 calendar years.

·       Count 3—burglary in the first degree—10.5 years.

·       Count 4—attempted first-degree murder—10.5 years.

·       Count 5—aggravated assault, serious physical injury—7.5 years.

·       Count 6—aggravated assault with a deadly weapon—7.5 years.

·       Count 7—armed robbery—10.5 years.

·       Count 8—aggravated robbery—7.5 years.

The sentences for counts two through eight will be served consecutively to each other and to the sentence of natural life in prison received for count one. Depending upon how you choose to add it up the sentences for counts three through eight add up to an additional 54 years in prison. If you add the possibility of applying for parole after 25 years as the sentence in count two allows then Gaxiola received an additional 79 years in prison on top of the sentence to life in prison.

After the sentencing hearing Lansdale said there were plans for an appeal, but he was uncertain if he would handle it or another attorney would handle it. “I’d like to do it because we’re so familiar with the case,” he said.

Lansdale said the sentences Gaxiola received were what he had anticipated. “In the trial phase we hoped to raise a reasonable doubt, but we didn’t do that,” he said. “So, it was avoid the death penalty. What’s really the difference between 35 to life and natural life? He would get out when he’s 80-years-old.”

Gaxiola’s sister, Sonia Muniz flew in from California to attend the sentencing hearing. “I am relieved that Albert’s not on death row,” she said. “I will be with him to the end of this. I know he is innocent. He didn’t kill anyone.”

Gonzalez and members of her family had submitted letters containing sentencing recommendations to Leonardo prior to the hearing. The judge, who noted that the letters were “confidential,” denied a request for copies of those letters.

Previously, codefendant Shawna Forde received sentences of death on the two murder charges and an additional 65 years in prison for the other charges. Codefendant Jason Bush received two death sentences for the murder charges plus an additional 78 years in prison on the other charges.

At sentencing for Forde and Bush, Leonardo ordered $11,864 in restitution to Gonzalez and to her mother for funeral expenses and other costs. The amount of restitution had grown to over $13,000 as of Monday’s hearing. Leonardo gave the attorneys 30 days to work out the discrepancy.

Gaxiola no longer faces the death penalty for the murder of Brisenia Flores

Brisenia Flores

Former Arivaca resident Albert Robert Gaxiola no longer faces the death penalty in connection with the May 30, 2009, murder of 9-year-old Brisenia Flores during a home invasion that saw her father killed and mother seriously wounded.

On July 15, a Pima County Superior Court jury sentenced Gaxiola, 44, to life in prison for the shooting death of Raul “Junior” Flores. The jury was unable to reach a decision regarding the appropriate punishment in the death of Brisenia.

Judge John S. Leonardo granted the motion withdrawing the death notice during a hearing Friday morning. Deputy County Attorney Rick Unklesbay told Leonardo that the Homicide Panel in the county attorney’s office had reviewed the pros and cons of continuing to seek the death penalty and that he and Deputy County Attorney Kellie Johnson had spoken with surviving victim Gina Gonzalez as to her preference. “It’s important for Mr. Gaxiola to know that Ms. Gonzalez was in agreement to withdraw this notice,” he said.

On July 1, Gaxiola, 44, was found guilty on two counts of first-degree murder in the shooting deaths of Flores and his daughter, as well as six other charges including attempted first-degree murder in connection with the wounding of surviving victim Gina Gonzalez.

A sentencing hearing on all eight counts is scheduled for Aug. 15 at 10:30 a.m. Now that the death request has been withdrawn Leonardo will have the option of sentencing Gaxiola to natural life in prison or life in prison with an opportunity to apply for a parole hearing after he has served 35 calendar years in prison. The 35-year threshold applies in Brisenia’s case because she was younger than 15-years-old.

In regards to the murder of Raul Flores, Leonardo could sentence Gaxiola to natural life in prison or with an opportunity to apply for a parole hearing after he has served 25 calendar years.

Earlier this year, co-defendants Shawna Forde and Jason Eugene Bush were each sentenced to death by juries on the murder counts involving Raul and Brisenia Flores and they received additional prison time, Forde 65 years and Bush 78 years, for their convictions on the other six counts. Leonardo will have the option to hand down similar sentences to Gaxiola on Aug. 15.

Gaxiola given life in prison for the murder of Raul Flores, no verdict on murder of Brisenia Flores

Albert Gaxiola
(pool photo by Mamta
Popat/Arizona Daily
Star)

   Relief was the expression found on the faces of former Arivaca resident Albert Robert Gaxiola and members of his defense team on Friday afternoon as a Pima County Superior Court jury sentenced him to life in prison for the May 30, 2009, shooting death of Arivaca resident Raul “Junior” Flores. The jury was unable to reach a decision regarding the appropriate punishment in the death of 9-year-old Brisenia Flores. 

Relief 

   The jury of seven males and five females took a little over 11 hours before returning their verdicts to a surprised audience of onlookers in the courtroom of Judge John S. Leonardo. “I’m relieved,” said defense counsel Steven D. West, immediately following the reading of the verdict.

West said Gaxiola had similar feelings. “I think he was greatly relieved,” West said.

West was unable to pinpoint what evidence the defense had presented that led the jury to the verdict of life in prison. “I’m sure the family emotion, I would think, had some effect on them,” he said, referring to the numerous members of Gaxiola’s family who testified during the sentencing phase of the trial. “They sincerely appeared like they cared about Albert greatly.”

Obviously, West and his client were prepared for a death sentence. “I think we all did. I wasn’t inside Albert’s head, but I’m sure that he was,” he said.

Gaxiola’s sister, Sonia Muniz who testified during the penalty phase of the trial was at home in California when she heard news if the verdict. “As we understand it right now, we’re happy with the outcome,” she said. “This isn’t the end of the world and there’s still more to come. We haven’t exhaled completely.”

Muniz agreed with west that it was Gaxiola’s family that made a difference in the outcome. “During the mitigation phase we were able to paint his character and the jury was able to see that,” she said.

West admitted he is not an expert when guessing what juries will do, but the verdict they returned with the hung jury of the murder conviction involving Brisenia was surprising. “I would have never guessed the combination of things,” he said.

What now

Raul and Brisenia
Flores

On July 1, Gaxiola, 44, was found guilty on two counts of first-degree murder in the shooting deaths of Flores and his daughter, as well as six other charges including attempted first-degree murder in connection with the wounding of surviving victim Gina Gonzalez. Asked if she had any thoughts on the verdict and a lack of a verdict Gonzalez declined. “No, I’m not interested,” she said, as she quickly left the courtroom.

Gonzalez, however, will be talking with Deputy County Attorneys Rick Unklesbay and Kellie Johnson in the near future to provide input regarding the jury’s inability to decide the penalty for the murder of her daughter, Brisenia. “We’re going to talk to her,” Unklesbay said.

The prosecutors will also consult colleagues regarding whether or not to withdraw their request for the death penalty. “We do a panel on all murder cases,” Unklesbay explained. “We’ll talk to everybody concerned and make a decision.”

West was unwilling to speculate as to how the prosecution will proceed. “That’s strictly up to them and I’d rather not comment,” he said.

Decision time

A hearing on whether the death request will be withdrawn on the count involving the murder of Brisenia is set for July 29 at 10 a.m. If the death request is withdrawn then Leonardo will have the option of sentencing Gaxiola to natural life or whether he will have an opportunity to apply for a parole hearing after he has served 35 calendar years in prison. The 35-year threshold applies in Brisenia’s case because she was younger than 15-years-old.

A sentencing hearing has been set for Aug. 15 at 10:30 a.m. on the other six counts for which Gaxiola was convicted, as well as the murder count for which he will receive life in prison. It is up to Leonardo to determine if Gaxiola will be sentenced to natural life or whether he will have an opportunity to apply for a parole hearing after he has served 25 calendar years in prison.

No new neighbors

Already on death row in this case is co-defendant Shawna Forde, 43, the founder of the splinter group Minuteman American Defense. Testimony from prosecution witnesses in her trial earlier this year painted Forde as a wannabe black ops leader who proposed to finance her Blackwater-type operations by raiding suspected drug cartel operations in and around Arivaca in southern Arizona. Testimony showed that Forde intended to take the drugs, guns and money found during those raids to finance her continuing operations. Flores was their first target. Besides two death sentences, Forde was sentenced to 65 years in prison on the six other counts.

Also on death row in this case is co-defendant Jason Eugene Bush, 34, director of field operations for Minuteman American Defense, who during a post-arrest interview told detectives that it was his understanding that no one at the Flores home would be harmed. Bush also told detectives that he and Forde had entered the Flores home first because Gaxiola was concerned that he would be recognized. And, Bush told detectives that he was told their mission was to rip off marijuana and money owned by Raul Flores. Besides the two death sentences, Bush was given and additional 78 years in prison regarding the six other counts.

Gaxiola’s role

Testimony in this trial showed that Gaxiola, a longtime drug smuggler in the Arivaca area, was an intelligence resource for Forde and Bush who were seeking drugs and money to fund her minuteman operations and to provide living expenses. At the same time, the death of Flores eliminated competition in local drug smuggling activities for Gaxiola and his longtime business partner, Oin Oakstar. In exchange for a favorable plea agreement, Oakstar testified for the prosecution in all three trials.

Of the three defendants, Gaxiola was the only one that chose to make a statement either through testimony or in the form of allocution. The statement by Gaxiola was unsworn and not subject to cross-examination. “Flores Family. Gonzalez Family. There’s nothing that I can do or say that can relieve the pain and suffering from the loss of a loving husband or the loss of a precious daughter. All I can say is that I am truly sorry.”

Gaxiola’s fate remains in the hands of the jury

Albert Gaxiola
(pool photo by Jill
Torrance/Arizona
Daily Star)

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 began deliberating that issue on Thursday morning..

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, 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.

The jury deliberated for about seven hours on Thursday before retiring for the evening. The jury of seven males and five females is expected to resume deliberations at 9 a.m. on Friday morning.

Gaxiola’s fate is now in the hands of the jury

Albert Gaxiola
(pool photo by Jill
Torrance/Arizona
Daily Star)

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 will begin deliberating that issue on Thursday morning..

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, 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.

Closing arguments

The jury was told, Thursday afternoon, that Gaxiola make some bad choices when he became involved with Forde and Bush and especially with his drug smuggling buddy Oin Oakstar. “Albert’s mistake is associating with these people,” said defense counsel Steven D. West.

West also suggested to the jury that they needed to carefully consider his client’s moral culpability in this situation. “What shaped his morality and value systems? How did he get here? How was he damaged?” he asked, rhetorically.

West suggested that the bottom line is that Gaxiola is far from being the worst of the worst. “Our society has reserved the death penalty for the worst of the worst. The people who you just don’t want to take a chance that they will ever get back out into society,” he said.

Moral culpability

Deputy County Attorney Rick Unklesbay admitted to the jury that the defense had proven that Gaxiola had endured a less than ideal childhood. “They’ve done that and I’m not going to suggest otherwise,” he said. “You get to decide what weight, how much weight any of these factors merits in light of the circumstances of the murders. More importantly, you get to decide is moral culpability in light of the circumstances of the murders what weight are you going to give to things that happened to this defendant when he was two, three or four in light of what he did when he was 42.”

Unklesbay pointed out that Gaxiola made some very fateful decisions two years ago that landed him in his current predicament. “At age 42, when he began making plans to do away with Junior Flores. At 42 years of age, he was making that hitless in his notebooks, When he was 42 years of age he met Shawna Forde and the two of them getting together bringing in Jason Bush to commit these crimes,” he told the jury. “That factors in, I would suggest to you, to the defendant’s moral culpability.”

Allocution

At the conclusion of the presentation of evidence in the penalty phase of the trial, the defendant is given the opportunity to allocate, which according to yourdictionary.com is “The procedure during sentencing when a judge gives a convicted defendant the opportunity to make a personal statement on his own behalf to mitigate the punishment that is about to be imposed.”


The statement by Gaxiola was unsworn and not subject to cross-examination. “Flores Family. Gonzalez Family. There’s nothing that I can do or say that can relieve the pain and suffering from the loss of a loving husband or the loss of a precious daughter. All I can say is that I am truly sorry.”

Defense counsel Jack L. Lansdale reiterated his client’s statements during final closing arguments to the jury. “He feels very bad about what happened to this family,” he said.

Lansdale asked the jury to do what it right when deciding the fate of his client. “We feel at the end of the day that when you evaluate all of the facts and circumstances you have the right to use that term mercy,” he said. “This is not an eye for an eye, tooth for a tooth situation. This is not a cold-blooded killer. This is not a worst of the worst situation.”

Gaxiola tells the Flores and Gonzalez families he is ‘truly sorry’

Albert Gaxiola
(pool photo by 
Mamta Popat/
Arizona Daily
Star)

Former Arivaca resident Albert Robert Gaxiola told the victims of the May 30, 2009, home invasion in Arivaca that he was “truly sorry” for the deaths of Raul “Junior” Flores and his daughter, Brisenia.

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.

At the conclusion of the presentation of evidence in the penalty phase of the trial, the defendant is given the opportunity to allocate, which according to yourdictionary.com is “The procedure during sentencing when a judge gives a convicted defendant the opportunity to make a personal statement on his own behalf to mitigate the punishment that is about to be imposed.”

The statement by Gaxiola was unsworn and not subject to cross-examination. “Flores Family. Gonzalez Family. There’s nothing that I can do or say that can relieve the pain and suffering from the loss of a loving husband or the loss of a precious daughter. All I can say is that I am truly sorry.”

With that, the attorneys began closing arguments in the case.

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.

Scope

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.