Capital Sentencing Guide

The 2010 version created by the Arizona Death Penalty Judicial Assistance Program.

http://www.azcourts.gov/Default.aspx?alias=www.azcourts.gov/ccsguide

The jury has been picked; opening statements set for Tuesday, Jan. 25

What started out on Jan 5 as a prospective pool of jurors became 103 then, 98 then 81, then 63, then 62, then 36 and is now 16—12 jurors and four alternates. 


Two males and 14 females will sit as the jury in the first-degree murder trial for Shawna Forde at Pima County Superior Court. Those 16 jurors will hear opening statements and testimony in the case starting Tuesday, Jan. 25.

Shawna Forde

Forde, 43, is charged with two counts of first-degree felony murder in the shooting deaths of Raul “Junior” Flores and his daughter, Brisenia, 9, as well as charges of one count of attempted first-degree murder in the wounding 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.

Issues of the day

The third day of jury selection on Friday, Jan. 21, the focus was on issues that included:

✔Whether any of the jurors know any of the parties;

✔Whether any of the jurors had previously served on a grand jury;

✔Whether any of the jurors know any of the witnesses;

✔Whether any of the jurors know anyone in law enforcement, had frequent contact with peace officers or had been treated to “war stories;”

✔Whether any of the jurors had studied or practiced law;

✔Whether any of the jurors know each other (three of them did);

✔What their primary source of news is (one juror said “My fiancé’s granddaughter,” one juror remarked.)

✔Whether any jurors had ever been the victim of crime.

✔The attitudes of the prospective jurors regarding the issue of accomplice liability, felony murder, the use of plea agreements to solicit testimony and the use of informants by law enforcement.

✔Whether or not any of the prospective jurors knew anything about the community of Arivaca or with border action groups.

✔What the jurors thought about eyewitness testimony and emotions clouding observations of crimes.

✔Whether any of the jurors were involved in Neighborhood Watch:

✔Whether any jurors would be concerned if attorneys questioned investigators about the results of their investigation of the case;

✔Whether any of the jurors owned handguns or other weapons (one juror said: “My husband received it for Christmas. Not from me.” The juror mentioned that she had participated in shooting instruction with the handgun two weeks ago.);

✔Whether any of the jurors load their own ammunition;

✔Whether any jurors had ever had a weapon pointed at them;

✔How the jurors felt about border watching activities and SB 1070;

After 90 minutes of engaging in the preemptory strike process the jury was seated and read the preliminary instructions.

Defense issues

Two issues were raised by the defense. One involved the use of handcuffs on the defendant when she is brought into court. Defense counsel Eric Larsen said that handcuffing Forde’s arms behind her back was producing a painful reaction as she had been shot in an unrelated incident a few months before the home invasion in May 2009.

Also, Larsen was concerned about the placement of the podium used by Judge Leonardo in the well of his courtroom. The judge prefers that it be placed in the middle of the well, however Larsen observed that the podium was blocking the view of the jury by the defendant and of the defendant by the jury. The podium will be located between the counsel tables for the duration of the trial.

Check the Green Valley News and Sun for coverage of the trial.

© David S. Ricker, all rights reserved.

More confusion about death penalty procedures dominates day two of jury selection

  Day two of jury selection in the death penalty trial for Shawna Forde at Pima County Superior Court saw 50 more prospective jurors educated about the three phases that may be involved in this prosecution.

Forde is charged with two counts of first-degree felony murder in the deaths of Raul “Junior” Flores and his daughter, Brisenia, 9, as well as charges of one count of attempted first-degree murder; 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.

Confusion

   On the first day of voir dire it became apparent that many of the prospective jurors did not understand that besides the phase that determines the guilt or innocence that there may be two additional phases—aggravation and penalty—before the jury determines if the defendant is sentenced to life in prison or death by lethal injection.

   Several of the jurors interviewed on Jan. 19 and Jan. 20 had indicated on questionnaires filled out on Jan. 5 that they felt the death penalty was an appropriate penalty for any crime. “We’ve all come to realize that the questionnaire wasn’t worded the way that we intended it,” said Deputy County Attorney Rick Unklesbay.

    Several jurors, during the morning session, expressed concerns about participating in a trial that could decide if Forde is sentenced to life in prison or death. “That’s not a decision that I want to make,” one juror said.

   Another juror indicated that “it’s someone’s life and it really has to be taken seriously.”

    A third juror told the court that “I truly believe in the death penalty. I will make my decision on what I learn in this courtroom.”


  A fourth juror admitted that she was prone to be very emotional and was concerned about looking at photos of the victims after they are admitted into evidence. “I don’t know how I’m going to handle that. I’m going to have to step up and do my duty. I’ll have to deal with the emotions and get on with the business.”

   That juror was eventually excused. “It’s okay to be emotional,” said Judge John S. Leonardo. “Everybody is going to be emotional.”

More questions

   The afternoon session was more of the same. “I don’t believe in the death penalty,” one juror said.

   “I don’t think my emotions would let me decide,” another juror said.

   “Sometimes we get stuck in our thought processes and don’t listen to all the facts,” a juror offered.

   During questioning by defense attorney Eric Larsen a juror talked about reaching a comfort level. “Anybody who wants to be here should raise their hands now because we don’t want you because it’s not healthy,” he said.

   Both the prosecution and defense had questions for a juror who is legal counsel for U.S. Customs and Border Protection. The concern involved the fact that a Border Patrol agent is scheduled to testify because he was one of the first responders at the scene of the home invasion. “I have no idea what the testimony would be about,” the juror told the court.

   At the end of the day, 18 of the 50 jurors summoned for voir dire were excused. On Friday, Jan. 21, 63 jurors are expected to return to court to finish the jury selection process. It is anticipated that jury selection will be completed by noon with opening statements in early afternoon.

Check the Green Valley News and Sun for coverage of the trial.

© David S. Ricker, all rights reserved.

Jury selection resumes in the death penalty trial for Shawna Forde

Jury selection resumed on Wednesday, Jan. 19, in the death penalty trial for Shawna Forde at Pima County Superior Court.

Voir dire was scheduled to resume Jan. 11 after 225 prospective jurors filled out the Jan. 5 questionnaire, but a combination of a personal emergency for a defense counsel and the events of Jan. 8 when six people were killed and 13 were wounded at a Congress on Your Corner event being held by Rep. Gabrielle Giffords, D. Ariz., prompted Judge John S. Leonardo to postpone jury selection until Jan. 19.

Hon. John S. Leonardo

Prior to bringing the first half the 98 jurors remaining in the pool for the case, Judge Leonardo denied another defense motion to continue the trial. This motion was based upon news reports published in local media since the jurors had filled out the questionnaires in the case. The second motion denied by Judge Leonardo dealt with voir dire procedures urged by defense. And, Judge Leonardo quashed a defense subpoena for a member of the Victim Witness Program at the Pima County Attorney’s Office.

Mini-opening statements

Prior to asking questions of the prospective jurors mini-opening statements were delivered by Prosecutor Rick Unklesbay and defense counsel Eric Larsen. Unklesbay told the jurors that Raul “Junior” Flores, his wife Gina Marie Gonzalez and their daughter Brisenia, were at home in Arivaca, a small town southwest of Green Valley, “kind of remote,” when there was a knock on their door at 1 a.m. on May 30, 2009.

Flores answered the door and “three, possibly four individuals” who identified themselves as law enforcement entered the home. Unklesbay said one of the individuals “shot Raul several times and then shot Gina several times.” Unklesbay said Brisenia was shot “twice in the head” with a .45 caliber handgun. During his mini-opening statement Larsen was more specific pointing to each of his cheeks saying Brisenia “had a couple of bullet holes in her face.”

Larsen also acknowledged to the jurors that “criminal cases are always difficult to sit on. You have people who are killed and you have people who have been accused of doing the killing,” Larsen added. “You have to decide the innocence or the guilt. We recognize how emotional this is.”

Larsen made it clear that “we are not conceding that the death penalty is appropriate for Shawna Forde. You are being asked to do something you don’t have a lot of experience with. You will have to look inside your heart in order to treat her fairly.”

Phases

It became clear as voir dire continued that most of the jurors did not understand that a death penalty case in Arizona includes three phases—the guilt phases where the jury determines the guilt or innocence of the defendant, the aggravation phase where the jury determines if the defendant is eligible for the death penalty and the penalty phase where the jury is presented with evidence in mitigation in an attempt to persuade the jury to return a verdict of life in prison. “If you find her innocent the case is done,” Larsen said. “Dispassionately evaluate the evidence.”

The jurors were also told that Forde is charged with felony murder in the deaths of Flores and his daughter as well as charges of one count of attempted first-degree murder; 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. “The state is alleging that Ms. Forde was an accomplice and not the person who pulled the trigger,” Unklesbay said.

There were six jurors excused from the panel of 25 in the morning session due to scheduling and job-related issues. One additional juror was excused due to his views on the death penalty.

Excuses

Jurors questioned after lunch informed the court that of various issues. One juror said she had adopted the children of a homicide victim with a case that was still pending in Pima County. Another juror said his sister’s former boyfriend had recently been murdered. A third juror said: “the system is flawed” and “I don’t want to be put into the position of making an irreversible mistake.” A fourth juror stated: I cannot make a choice to sentence someone to get killed.”

Another 11 jurors were excused during the afternoon session.

There was one point of levity during the afternoon session. A juror was asked about the death penalty. Before answering he asked Judge Leonardo if he could take a restroom break. Before Judge Leonardo could tell the jury to return in 10 minutes that juror ran from the courtroom holding areas in his mid-section. When court resumed, Judge Leonardo asked the juror: “Are you better prepared to answer now?”

In reference to the Jan. 8 shootings, a juror in the afternoon group reported she was a friend of Daniel Hernandez. “My friend was the one who saved the congresswoman,” she said. She also reported that she had not spoken with Hernandez since the incident.

And, another juror, who had a career in media relations, said that one of her close friends was a close friend of Ron Barber, district chief for Giffords. Finally, a juror was excused because his tribal traditions prevented him from viewing photographs of the dead.

The remaining jurors were asked to return at 8:45 a.m. on Friday, Jan. 21. An additional pool of prospective jurors is due in court on Thursday, Jan. 20.

Migraines

Meanwhile, Judge Leonardo granted a defense request for judicial security to provide medication for Forde who said she suffers from migraine headaches as the result of “suffering a stroke” earlier in her life.

© David S. Ricker, all rights reserved.

Jury selection set to resume Jan. 19 is murder trial for Shawna Forde

     Jury selection is set to resume Wednesday, Jan. 19, at Pima County Superior Court in the first-degree murder trial of Shawna Forde.

Forde, 43, is one of three defendants facing two counts of first degree murder in connection with the shooting deaths of Flores and his daughter, Brisenia, 9.

Forde also faces charges of one count of attempted first-degree murder; 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.

A total of 225 prospective jurors filled out questionnaires on Jan. 5. As a result of the questionnaire, 122 jurors were excused based upon their answers. Jury selection had been scheduled to resume on Jan. 11, however, a combination of a family emergency for one of the defense counsel and the killing of six people and wounding of 13 others including Rep. Gabrielle Giffords, D, Ariz., prompted Judge John S. Leonardo to granted a postponement in jury selection.

When jurors and the parties in the case reassemble on Jan. 19 there may be only 98 jurors left for jury selection as five additional jurors were excused.

It’s anticipated that jury selection will take until at least Friday. Opening statements could take place late Friday or on Tuesday, Jan. 25.

© David S. Ricker, all rights reserved.

Who really did commit the home invasion and murders in Arivaca on May 30, 2009?

Less than a week before opening arguments are anticipated in the death penalty case facing Shawna Forde in Pima County Superior Court, one of three defendants charged in the shooting deaths of Raul “Junior” Flores and his daughter, Brisenia, 9, the defense team for Forde argued its latest motion to continue the trial.

Leland "Red" Sprout

The motion was filed late on the afternoon of Jan. 6. According to defense counsel Eric Larsen, he and co-counsel Jill Thorpe met with FBI agents and were told of another potential suspect in the case. The name Leland "Red" Sprout came up in FBI documents regarding associates of contacts the FBI had in Colorado. "We had never heard of him before 3 p.m. yesterday afternoon," said Larsen, during a hearing Friday afternoon, before Judge John S. Leonardo.

According to Larsen, after the shooting at the Flores household a text message was sent from a cellphone register to Forde to a cell phone registered to co-defendant Albert Gaxiola stating that "Red" had been wounded and couldn't be moved and he needed medical attention. Larsen said that was when Forde supporter Laine Lawless and Minuteman Chuck Stonex responded to treat Bush's wound. Larsen suggested there may be a picture somewhere of Laine Lawless at Gaxiola’s house dressed in camouflage gear holding a rifle.

Larsen told Judge Leonardo that additional investigation is needed. "This is vital information," said Larsen. "Based on conversations with my client they (Forde and Sprout) don't know each other." Larsen conducted a Google search for Sprout after the meeting with the FBI and found that Sprout was involved in border minutemen groups. He had a picture of Sprout wearing a red T-shirt holding and automatic handgun in front of his chest. "If Jason Bush is 'Red' it leads to Shawna Forde," said Larsen. “If Leland Sprout is 'Red' it leads in another direction. We have the right to raise reasonable doubt and we have the right to raise third party culpability."

In response, prosecutor Kellie Johnson told the court that the FBI received a call in July from Ronald Wedow in Colorado stating: “Leland Sprout may have been involved in the Arivaca shooting or a choosing on the California/Mexico border."

"It is Shawna Forde who is texting that 'Red' is injured," Johnson added. "It is Laine Lawless and Chuck Stonex who show up at Gaxiola's house and give Jason Bush medical attention."

Larsen reminded Johnson of the court's earlier ruling regarding the cell phones. "It's a phone registered to Shawna Forde texting to a phone registered to Albert Gaxiola," he said. "They can't put the phone in her (Forde's) hands."

Judge Leonardo denied the motion to continue the trial calling it "speculative." He did grant a defense request for a telephonic interview with Wedow as soon as possible. Larsen asked for a court order forcing Wedow to disclose the name of the associate who told him about Leland "Red" Sprout. Leonardo asked that the parties work things out but stopped short of issuing a court order compelling Wedow to disclose the information sought by Larsen.

Earlier in the hearing, discussion centered on the jury selection process. A total of 225 prospective jurors filled out the 17-page questionnaire on Wednesday, Jan. 5. By mutual agreement between the prosecution and defense, 122 of those jurors have been excused based upon their answers to the questionnaire. "We largely agreed, but not 100 percent," said Thorpe.

That leaves 103 jurors in the pool for this case. The defense asked for one other juror to be excused based upon her employment as an in-house attorney for Customs and Border Protection. There is one witness from the Border Patrol scheduled to testify, but it was unclear if this lawyer represents the Border Patrol or Customs. She will be brought back to clarify during voir dire.

Forde was not present for Friday's hearing. Judge Leonardo asked if she planned to attend the trial as she has only attended one court hearing since she was indicted in the case. Larsen said his client planned to attend the trial. "We were chatting today about what size she is," Larsen said, referring to civilian clothing that she might wear at trial.

During discussions regarding scheduling, it appears the state will take most if not all of the month of January to present its case. The defense said it might take four or five days. Larsen speculated that the jury may get the case in the guilt phase of the trial on Feb. 4 or Feb. 8 depending on the length questioning for some witnesses. Most days, trial will start at 10:30 a.m. and conclude at 5 p.m. On Fridays, trial will start at 9 a.m. On Tuesday, Jan. 18, trial will start at 1:30 p.m. due to the MLK holiday the day before. Check out my coverage of the trial in the Green Valley News and Sun and its affiliated publications.

© David S. Ricker, all rights reserved.

The first of three death penalty trials set to start this week

In the early morning hours of May 30, 2009, the tranquilly of the Arivaca household of Raul “Junior” Flores was disrupted by a loud, forceful knock at the front door.

The events that transpired after that fateful knock at the door will be the subject of a trial before Judge John S. Leonardo at Pima County Superior Court. A 17-page jury questionnaire for 225 prospective jurors was administered on Jan. 5 and jury selection is set to continue in the courtroom on Jan. 11. It could take a few days before a jury is selected to hear testimony in the case.

Shawna Forde

Shawna Forde

Shawna Forde, 43, is one of three defendants facing the death penalty in connection with the shooting deaths of Flores and his daughter, Brisenia, 9. “They told us that somebody had escaped jail or something and they wanted to come in and look at my house,” said a distraught Gina Marie Gonzalez, through tears during a 9-1-1 call. “We were asking, ‘What’s going on?” and they were saying, ‘You don’t have the right to ask questions right now and we need to check your house.’”

Brisenia and Raul Flores

While her husband, Raul, and daughter, Brisenia, suffered head wounds, Gina Gonzalez, who suffered a leg wound, was exchanging gunfire with the intruders who were dressed in camouflage. About 10 gunshots can be heard during a minute-long gunfight on the edited, 19-minute 9-1-1 call. “Get the (expletive) out of here,” Gonzalez yelled at one point during the call. In a ruling on Dec. 20, Judge Leonardo granted a motion allowing for the 9-1-1 recording to be played at trial. He did limit the prosecution or anyone else from identifying one of the voices on the recording as belonging to Forde.

At a court hearing on Jan. 4, Gonzalez was called to testify at a Dessureault hearing, a motion to determine whether or not the identification procedures used by the detectives investigating the shootings were unduly suggestive. If the court finds that they were, then those procedures used to prove identification cannot be admitted as evidence at trial. If the court finds that they were suggestive, then it has to find that the “in court” identification or “out of court” identification, or both, were such that the defendant is guilty “beyond a reasonable doubt.”

Victim identification

Gina Gonzalez

Gonzalez testified, Jan. 4, regarding her opportunity to view the intruders at the time of the shootings. She was also asked to recall a hearing in September when Forde made an appearance in court. Until then, Forde had waived her court appearances at hearings in the case.

According to a court spokesman, Gonzalez testified that Forde resembled the female intruder that had led the intruders that killed her husband and daughter, as well as wounding her, but she could not say for certain that the intruder in her home and Forde were the same person.

According to the court spokesman, the parties were willing to stipulate as to what other witnesses would testify about regarding Forde’s appearance around the time of the offense. The court also rejected the request to have a defense expert testify telephonically at the Jan. 4 hearing about the fallibility of witness identifications over time. Judge Leonardo took the Dessureault motion under advisement and as of deadline had not ruled.

One of the shots fired by Gonzalez wounded one of the intruders, later identified as Jason Eugene Bush, 36, a co-defendant of Forde. Bush’s trial had originally been set for Oct. 21, but is now scheduled for later in the spring.

Forde also faces charges of one count of attempted first-degree murder; 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.

Minutemen American Defense

Jason Bush

Authorities have identified Forde and Bush as the head and the operations director of a group called Minutemen American Defense. A report from the Daily Herald in Everett, Wash., quoted the birth mother of Forde as saying her daughter had told her that she planned to be involved in home invasions as a part of her grou
p’s activities.

“She sat here and said that she was going to start a group where they went down and start taking things away from the Mexican mafia,” Rena Caudle said from her Redding Calif., home. “She was going to kick in their doors and take away the money and drugs.”

Caudle has been listed as a potential witness by the prosecution, however they informed Forde’s defense team recently that they were uncertain if she would be called to testify. Forde’s defense counsel, Eric A. Larsen, stated that they could call her as a witness, as well.

Adding credence to Caudle’s assertions are documents from the FBI that indicate that Forde’s group was planning a home invasion weeks before it actually took place. According to the documents, two confidential informants told FBI agents in April 2009 that Forde had been recruiting people for the purpose of raiding a house that she believed contained illicit drugs, money and weapons.

Clarence W. Dupnik

Early in the investigation, Pima County Sheriff Clarence W. Dupnik identified Flores as “a large dealer” who likely had connections to large Mexican drug cartels and “has a history of being involved in narcotics.”

Drug smuggler

In a June 13, 2009, article in the Green Valley News it was reported that most Arivaca residents suspected that Flores had been smuggling drugs. Despite his “flaws,” Flores was known to be a good father with daughters, who were “never dirty, always clean, well-dressed, polite, sweet little girls.”

Albert Gaxiola

According to investigators, the third suspect, Albert Robert Gaxiola, 43, had no apparent ties to Minutemen American Defense, but had a long-standing dispute with Flores over “storing marijuana on their property.” Gaxiola is scheduled for trial at the conclusion of Forde’s trial.

Also questioned in connection with the investigation was Oin Glenn Oakstar who entered into a plea agreement on the charge of possession of a deadly weapon by a prohibited possessor. In exchange for the plea, Oakstar agreed to testify in the trials against Forde, Gaxiola and Bush. Oakstar received a sentence of three years on intensive probation. In November, Oakstar was back in court on a petition to revoke his probation for using methamphetamine and not following his preapproved schedule.

During a disposition hearing on Jan. 3 regarding a petition to revoke conditions of probation, Judge Jane Eikleberry placed Oakstar back on intensive probation supervision and order that he spend time in residential treatment for drug abuse whenever a bed became available.

Forde supporter

During her incarceration, Forde has had a number of vocal supporters, including a woman using the pseudonym Laine Lawless. Lawless has a pair of websites devoted to Forde’s cause and has written a book “Blonde on the Border.”

On Dec. 13, Forde’s defense counsel Eric A. Larsen moved the court to relieve him of his responsibilities to defend Forde, a move that would have postponed her trial. Larsen was reacting to a complaint filed with the State Bar of Arizona by Lawless who asserted that Forde had lost faith in her representation by Larsen and co-counsel Jill E. Thorpe. Judge Leonardo delaying ruling on the motion until Dec. 20 so that he could question Forde.

After the Lawless complaint had been filed with the bar her had submitted an affidavit from Forde denying the allegations leveled in the Lawless complaint. Lawless responded to the affidavit by stating she was familiar with Forde’s signature and that the signature on the affidavit did not appear to be hers.

On Dec. 20, Leonardo questioned Forde and was assured that she had no knowledge of the Lawless complaint prior to it being filed. She also assured Leonardo that she had full confidence in the representation she had been provided by both Larsen and Thorpe.

 © David S. Ricker, all rights reserved