Judge: Arivaca suspects could get death penalty

After hearing gruesome details of an Arivaca double-murder, a Superior Court Judge ruled Monday that all three defendants, if convicted, are eligible for the death penalty, though his finding is not binding.

Judge John Leonardo heard testimony from Pima County Sheriff’s Detective Juan Carlos Navarro and oral arguments from Pima County Deputy Attorney Rick Unklesbay and three defense lawyers during a two-hour hearing before ruling that there is probable cause for each defendant to face the death penalty if found guilty. He ruled that each one of the “aggravating factors” presented by the prosecution could qualify each defendant for the death penalty.

Defendants Shawna Forde, 41, of Everett, Wash., was leader of Minutemen American Defense; Albert Gaxiola, 42, of Arivaca, and Jason Bush, 35, of Meadview, are accused of posing as law enforcement officers during a home invasion on May 30 when Raul Flores, 29, and his daughter, Brisenia, 9, were shot and killed. The girl’s mother also was shot, but played dead for a time, called 9-11, then grabbed a handgun and exchanged gunfire with the intruders, hitting Bush in the leg and driving the group away, Navarro said.

Gaxiola and Bush were present in court. Forde was not in court but was represented by two lawyers, one of whom said Forde “wanted to stay out of the limelight.”

The detective said the intruders wielded guns that had duct tape on them and when Flores asked why they had duct tape on the guns, a male with a painted face said “don’t take this personally but this is for you” as he shot Flores multiple times and then shot his wife three times.

When Flores was initially shot, he said, “Don’t shoot my wife, don’t shoot my wife,” Navarro said.

According to an 89-page statement Bush gave the detective, after Flores and his wife were shot, Bush knew the girl was still in room. He told police, “I was hoping she would be quiet and they (Forde and Gaxiola) would forget about her” while ransacking the house looking for money or drugs to sell.

Instead, Brisenia, a student at Sopori School in Amado, cried out, “Why are you shooting my daddy? Why are you shooting my mommy?” then said, “No, no, no,” and was shot and killed, Navarro said.

Defense lawyers Eric A. Larsen, representing Forde; Jack Lansdale, representing Gaxiola; and Christian Kimminau, representing Bush, each argued against the aggravating factors that were presented by the prosecution and that could allow for the death penalty.

The hearing was the first held in Pima County under the Arizona Supreme Court’s ruling in Chronis v. Steinle, which allows a defendant an open hearing on a judge’s ruling on the probable cause for aggravating factors in potential death penalty cases.

The practical effect is to give defense lawyers more ability to prepare for the possibility of a death penalty. However, Unklesbay noted after the session that the burden of proof in the probable cause hearing is much lower than it would be at trial or in the death penalty hearing that would follow a conviction.

Unklesbay argued that the defendants are qualified for the death penalty on different grounds, including committing the crimes for money, in a “cold and calculating” manner and in a cruel manner.

Navarro testified that they discussed robbing a drug dealer for money; conducted a reconnaissance patrol past the Flores home in a van; then armed themselves and forced their way into the Flores home after 1 a.m.

Larsen questioned the definition of “cold and calculating,” saying there is no standard in Arizona law against which to evaluate that phrase, and no way a reasonably intelligent person could apply that factor, which could qualify the defendants for the death penalty. Leonardo said the jury would decide that matter.

Kimmanau said the cold and calculating approach described by the prosecution contradicted the cruelty factor, in which involving a defendant prolongs the suffering of a victim. He said the rapid-fire manner in which the assailants shot the victims in the head or the torso meant they fired intentionally “lethal shots” and did not drag out their suffering.

The hearing also provided the first in-court testimony on the case, which so far has included testimony before and closed grand jury and a hearing without testimony. Several of the defense lawyers gave a peek at strategies they may use at trial.

Lansdale said there is no evidence that Gaxiola was present at the time of the homicides and a witness said he was in Tucson during the murders, but Unklesbay said blood found on an AK-47 rifle found in the Flores kitchen was matched to Gaxiola’s by DNA evidence and that a neighbor saw him shortly after the shooting outside his Arivaca home attempting to start his car.

Larsen said Forde had no serious felony convictions and there was no evidence to connect her with the killings, though Navarro said she planned the home invasion and apparently ordered Bush to go back into the home after she noticed Flores wife calling police.

Because Bush gave police lengthy statements, the court has ordered a separate trial for Bush, which is now scheduled for late 2010. Forde and Gaxiola will still face trial together, and that trial is scheduled for January 2011.

pfranchine@gvnews.com | 547-9738