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Thread: Judge Declares Mistrial, Jeffrey Martinson Set Free in 2004 AZ Slaying of Five-Year-Old Son

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    Judge Declares Mistrial, Jeffrey Martinson Set Free in 2004 AZ Slaying of Five-Year-Old Son

    An Ahwatukee Foothills man has been convicted of first-degree murder and child abuse in the 2004 death of his young son.

    Maricopa County prosecutors say jurors found 43-year-old Jeffrey Martinson guilty on Monday and he could face the death penalty. The aggravation phase of his case begins Tuesday afternoon in Maricopa County Superior Court.

    Martinson was accused of killing his 5-year-old son Joshua Eberle-Martinson after a weekend visitation in August 2004.

    The trial was delayed for years. It finally began three months ago with a private attorney assigned to Martinson — his fifth set of legal counsel.

    Authorities say the boy was found dead in a bunk bed at his father's apartment.

    A laboratory tested Joshua's blood at the time of death and found toxic levels of a muscle relaxer.

    http://www.myfoxphoenix.com/dpp/news...der-11-14-2011

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    Hung Jury in 2004 Child Murder Trial

    A man who was found guilty for abusing and murdering his 5-year-old son will not be sentenced Wednesday. A jury was unable to decide between life in prison or death for Jeffrey Martinson.

    The judge declared a mistrial. They will now start the penalty phase over again with a new set of jurors.

    Last month, Martinson was convicted of first-degree murder and child abuse in the 2004 death of his young son.

    Martinson killed his 5-year-old son Joshua Eberle-Martinson after a weekend visitation in August 2004. Martinson and the child's mother, Kristin Eberle, were going through a bitter custody battle.

    Just days before that weekend, Eberle filed notice requesting supervised visits because of Martinson's difficult behavior. The court OK'd this request and notified Martinson.

    Authorities say the boy was found dead in a bunk bed at his father's apartment.

    Joshua's blood tests from the time of his death show toxic levels of a muscle relaxer. The medical examiner also reported that he could not rule out the possibility of asphyxiation in combination with the drug found in Joshua's system.

    The trial was delayed for years. It finally began in August 2011 with a private attorney assigned to Martinson -- he had 11 different attorneys appointed by the court during the years the case was pending.

    A new date for the penalty phase has not been released

    http://www.myfoxphoenix.com/dpp/news...ial-12-21-2011

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    Jury testimonies reveal problems in Martinson trial

    Jury members took the stand Tuesday during a post-trial hearing for the first-degree murder trial of Jeffrey Martinson, and revealed some confusion among jury members over the judge's instructions and advice from the jury foreman.

    Martinson has been on trial since late July for the murder of his 5-year-old son, Joshua Eberle-Martinson, in his Ahwatukee Foothills apartment in August of 2004.

    Martinson was convicted in November, but now the jury is taking the witness stand to reveal what went on during deliberations that led them to be a hung jury during the penalty phase of the trial.

    Judge Sally Duncan questioned jurors one at a time on Tuesday and asked if they had a chance to see all the evidence they felt was necessary to see during deliberations, if they had enough time during deliberations, if anyone interfered with their ability to see evidence or have necessary time, if they had an opportunity to write down questions they needed to ask, and if they had discussed the trial with anyone, including other jury members, outside of deliberations.

    According to testimony, the jury foreman yelled at one of the jurors, No. 12, when she tried to speak up and told her she had no right to speak and had to vote the way she wanted because Juror 12 had been sleeping during the trial.

    Jury members say the foreman later apologized, but that it may have affected how talkative Juror 12 was during deliberations.

    Another juror said she wanted to submit a specific question to the judge, but that the foreman rewrote the question before submitting it and when the answer was still unclear the foreman told her it meant she had to vote guilty.

    When asked why she didn't ask further questions, the juror said she trusted the foreman's experience in the legal system because she had been a paralegal and worked for the Supreme Court.

    Some jury members testified that the foreman also denied other jury members of seeing specific evidence because it "wasn't relevant" to what they were discussing.

    The jurors testified they may have been talking about the case at lunch or in the jury room. Jurors 1, 2 and 6 said comments were made during lunch or right after testimony about the trial taking a long time, or the credibility of witnesses.

    The testimonies come after Martinson's defense team made a motion for mistrial. The state has a standing objection to holding the hearing, but the judge has overruled that objection.

    The hearing is expected to last through Monday.

    http://www.ahwatukee.com/news/articl...871e3ce6c.html

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    Attorney alleges juror misconduct in murder case

    In the American legal system, what happens behind the closed doors of the jury room is supposed to remain unquestioned.

    And maybe you don't want to know anyway -- especially if it's you on trial.

    But a first-degree murder conviction now under review in Maricopa County Superior Court has cracked open the door. A defense attorney has alleged juror misconduct in the case.

    In mid-November, Jeffrey Martinson was found guilty of killing his 5-year-old son. A jury of his peers found aggravating factors that would qualify him for the death penalty, but they could not reach a decision as to whether he should be executed or spend life in prison.

    As that jury pondered Martinson's punishment, one juror came forward to complain about what was happening in the jury room. According to his affidavit, the jury foreperson was not allowing jurors to see some evidence they wanted to review; would not allow them to discuss lesser charges that would come up short of first-degree murder; and would not allow them to discuss any arguments favorable to the defense.

    And against a standard court admonition, the affidavit claimed, some of the jurors may have been discussing the case among themselves at lunch during the trial. That in itself could cause a mistrial.

    Martinson's attorneys called for evidentiary hearings, and two-thirds of the jurors have already been called into court to testify, with at least another day of hearings scheduled. Maricopa County Superior Court Judge Sally Duncan will then have to decide whether to throw out the jury verdict and declare a mistrial.

    According to other judges, such decisions are rare because jury deliberations are largely untouchable.

    "You can't get into it; what happens in the jury room is pretty much sacrosanct," said Maricopa County Superior Court Judge Roland Steinle. "The allegations come up on a number of occasions, but the number of times it's granted is rare."

    Steinle said that proof of racism in jury discussion might get a verdict thrown out, as would proof that jurors conducted their own investigations during the trial by visiting a scene or doing research online.

    "Juror intimidation might be the exception," said retired Superior Court Judge Kenneth Fields. Otherwise, Fields said, "You don't want to invade the jury's discretion."

    Martinson, 45, was convicted of the 2004 killing of his 5-year-old son, Josh. Martinson claimed that he thought the boy had drowned and took an overdose of prescription drugs in an attempt to kill himself. But an autopsy turned up sedatives in the boy's blood. The medical examiner ruled that he died of a drug overdose. At that point, the case looked like a murder-suicide.

    But rather than charge Martinson with premeditated murder, the Maricopa County Attorney's Office charged him with felony murder, alleging the child died as a result of child abuse.

    Martinson's attorneys, Mike Terribile and Treasure VanDreumel, claimed that the child took the drugs himself, and DNA testing found genetic material on the pill bottle from which Josh's DNA could not be excluded. They claimed Martinson attempted to take his own life out of grief.

    Prosecutor Frankie Grimsman argued that it was murder. Child abuse can include failing to obtain medical attention for an injured or ill child.

    The case went to the jury. The verdict came back guilty.

    One juror, when told of the alleged shenanigans during the trial, said he tried "everything in my power to bring these matters to the court's attention but because of my effort, I was excused as a juror," according to his affidavit. He told Martinson's defense team, and the trial judge allowed the evidentiary hearing.

    The first hearing took place Jan. 17, followed by hearings on Jan. 19, 23 and 25. Many of the jurors said they had been able to view all of the evidence they needed to view. All agreed that they had only taken a vote on the first count -- that child abuse led to the child's death -- but failed to vote on a second child-abuse count for which Martinson was ultimately pronounced guilty.

    However, two women stated emphatically that though they voted to find Martinson guilty on the felony murder count, the jury forewoman had not allowed them to discuss any lesser crimes, only the most serious level of child abuse. Anything lesser would not lead to a murder conviction.

    One claimed that when she brought up points for the defense, she was shouted down by other jurors and told by the forewoman that she had no right to speak because she had slept through the testimony.

    The forewoman decided what evidence they would ask to see, they claimed, including a chart concerning the DNA evidence that suggested the child may have handled the pills that killed him.

    When the forewoman took the stand, however, she denied bullying anyone. She laid blame for discord on the other two women.

    Curiously, the attorneys and the judge had allowed the forewoman on the jury despite knowing that she herself was the victim of a family member's murder. She told the court that she could keep an open mind.

    But as Fields, the retired judge, said, "You cannot help but have strong feelings about your spouse being killed."

    Whether the bullying took place or not, the jury voted unanimously to convict Martinson of first-degree murder.

    The next hearing is scheduled for Feb. 7. If Duncan declares a mistrial, Martinson will get a new trial. If she denies it, a new jury will be picked to consider only whether to sentence Martinson to death.

    And Martinson's attorneys are likely to build an appeal, based on the jury's behavior.

    Read more: http://www.azcentral.com/arizonarepu...#ixzz1l1RGTXTo

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    Money Pit: Andy Thomas’ Death-Penalty-Laden Years as Maricopa County Attorney

    Mike Terribile and Treasure Van Dreumel made lots of money defending recently convicted murderer Jeff Martinson on the taxpayer's dime.

    The actual sum is almost $1 million per attorney over the past 28 months for work in the tragic and highly controversial case.

    New Times wrote about State of Arizona vs. Martinson in last week's issue. Titled "Eating Jeff," the story revealed serious allegations of juror misconduct that may win Martinson a new trial, sooner than later.

    The jury convicted the Ahwatukee man of first-degree felony murder and child abuse in the August 2004 apparent drug overdose death of his son Josh, who was 5.

    But the panel couldn't decide whether to impose death or life.

    Superior Court Judge Sally Duncan declared the jury hopelessly hung (two panelists voted for death). A retrial on the sentencing phase will be held later — that is, if Duncan doesn't order an entirely new trial because of pending legal issues.

    Terribile and Van Dreumel became Jeff Martinson's legal team in late 2009, more than five years after little Josh died.

    That was long after what Judge Duncan called "a three-ring circus" of a case entered the criminal justice system. The judge referred to the incessant trial delays and 11 prior defense attorneys (mostly from Maricopa County's public agencies) who had come and gone for a variety of reasons.

    Until recently, the money deal Terribile struck with county judicial officials was more controversial in courthouse circles than the Martinson case itself.

    The veteran Phoenix attorney agreed to lead the Martinson defense at a trial within 18 months, but he wouldn't settle for less than $300 an hour. That was far more than the $125 an hour private attorneys are paid as "first chairs" (lead lawyers) in county death-penalty cases.

    Van Dreumel, another experienced capital defense attorney, signed on for $250 an hour as Terribile's "second chair," almost three times the $90 an hour that the county usually pays.

    The grumbling inside the gabby criminal-defense community began as soon as word of the unique Martinson deal got around (which took all of about a day).

    Several attorneys contacted New Times with titillating tips of a Bentley and a newly purchased office building financed by taxpayers for Terribile and Van Dreumel in Martinson.

    More than one source referred to Van Dreumel's "Martinson-mobile," the Bentley that she was said to have purchased with the substantial sums collected while representing the broke Mr. Martinson.

    "Nice work if you can get it," sniffed one of Van Dreumel's peers, who wouldn't be quoted by name.

    New Times first approached the Martinson case with that money angle in mind, though the story morphed into the juror-misconduct tale.

    But sure enough, public records reveal that Arizona vs. Martinson cost county taxpayers $3 million and counting, including the $2 million in attorney fees.

    And, yes, a limited-liability corporation with Terribile listed as a director did buy a beautiful old building in downtown Phoenix last June.

    As for the Bentley, Van Dreumel confirms that she purchased a used model since going to work as the number-two attorney on the murder case.

    But here's the rub, and it's an important one:

    Both attorneys made a legit deal with judges desperate to find someone who finally would get the Martinson case to trial after a maddening series of delays.

    Judge Timothy Ryan, then the county's assistant presiding criminal judge, "hired" Terribile and Van Dreumel within days after testily allowing two lawyers from the Public Defender's Office (who apparently did nothing to advance the case for more than a year) to resign.

    This all happened during the peak of then-Maricopa County Attorney Andrew Thomas' onslaught against what Thomas decried were "corrupt" judges who allegedly coddled accused violent criminals and their slimy, stalling, victim-hating defense attorneys.

    Thomas' office issued a position paper about the state of the death penalty in Maricopa County, predictably blasting the judiciary and defense bar.

    It came on the heels of an American Bar Association study concluding that prosecutors, including those in Arizona, use inconsistent standards to seek the death penalty and that most states severely underfund attorneys who represent poor people in death-penalty cases.

    One of the Thomas camp's prime targets was Ryan, a respected former murder prosecutor who had specialized in crimes against children.

    A Thomas henchman accused Ryan in one court filing of showing "a persistent pattern of conduct that indicates bias and prejudice" against the County Attorney's Office. The henchman futilely demanded Ryan's removal from all future criminal cases.

    One of Ryan's most critical and thankless jobs at the time was trying to keep death-penalty cases moving forward, either toward trial or to a plea bargain.

    Even under the best of circumstances — which these decidedly were not — death-penalty cases are painstakingly difficult to process through Maricopa County's justice system in any time frame that could be called "reasonable."

    For any number of reasons — most of them perfectly sound — usually it takes at least two years (but surely not seven, as in Martinson) from arrest to capital trial.

    But Judge Ryan was none too kind to Martinson's deputy public defenders in a memo filed in October 2009, shortly before he endorsed Terribile and Van Dreumel's appointments to the case.

    Read full article here

    http://www.phoenixnewtimes.com/2012-...unty-attorney/
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    Judge To Rule On Martinson Murder Case Motions Soon: UPDATE

    The judge in the Jeffrey Martinson murder case told the attorneys at a hearing this morning that she will issue rulings on critical defense motions in a few days.

    Maricopa County Superior Court Judge Sally Duncan invited comments from both sides concerning recently filed legal briefs at this morning's brief hearing, but didn't get many--even after she pointedly told prosecutors that "This is the time for argument."

    Martinson's defense team has filed a motion for a new trial based on, among other reasons, alleged juror misconduct (here's our extended story on that piece of the puzzle), and because of a recent appellate decision we wrote about just the other day in Valley Fever.

    A jury convicted Martinson of murdering his 5-year-old son Josh back in 2004 by administering an overdose of Soma at his Ahwatukee apartment.

    Three of the Martinson trial jurors attending this morning's hearing, interested in what's going to happen in this tragic and increasingly controversial case.

    One of those jurors, alternate Carlos Amaro, took time off from his job with the city's Parks and Recreation Department to listen in. He said he's still upset he didn't get to sit in the deliberations, and told us that he wouldn't have voted to convict Martinson on anything except a far-lesser charge than first-degree felony murder and child abuse.

    We will do a blog on Judge Duncan's ruling, which promises to be quite interesting, no matter what she does.

    http://blogs.phoenixnewtimes.com/val...tinson_mur.php
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    Father Gets a New Trial in the Death of His Little Boy

    Jeffrey Martinson, who not long ago was facing a possible cell on death row, has won a new lease on his legal life with a momentous court ruling ordering a new trial.

    Maricopa County Superior Court Judge Sally Duncan's seven-page ruling overturned last November's guilty jury verdicts of first-degree murder and child abuse against the 45-year-old Ahwatukee man. The panel convicted Martinson in the August 2004 death of his son, Josh, who died of what a county medical examiner concluded was "acute Soma toxicity."

    What happened inside the jury room before and during deliberations partly was responsible for the judge's unusual move to toss out the convictions and order the new trial. Duncan found that "juror misconduct" had deprived Martinson of a fair trial and an even-handed resolution of the death-penalty-eligible charges against him.

    She also cited a recent Arizona Court of Appeals decision in another case that said the trial judge should have disallowed the testimony of a medical examiner that the "manner" of death was a homicide (rather than suicide, from natural causes, or undetermined).

    The appellate court's opinion in State vs. Sosnowicz was as critical as the juror misconduct issue in Duncan's decision to order a new trial for Jeff Martinson.

    New Times has written extensively about the controversial Martinson case ("Eating Jeff," March 8, and "The Money Pit," March 15). The first story described how some jurors claimed in affidavits after convicting Martinson that, among other issues, they had been swayed improperly by their forewoman, an employee of the Arizona Supreme Court.

    The allegations, some of which were stunning, led to an extended court hearing where the judge and attorneys for both the prosecution and defense questioned each panelist — 12 deliberating jurors and three remaining alternates.

    A hearing designed to dissect the goings-on inside a jury room is rare, and the deputy county attorneys prosecuting Martinson objected to it repeatedly. But Judge Duncan allowed the testimony, and the defendant's legal team, Mike Terribile and Treasure Van Dreumel, wound up winning a new trial.

    "The court is aware that granting relief on the basis of juror misconduct is rare," the judge wrote in her ruling. "The need to protect the privacy of the jury room and the mental thoughts of jurors is a cornerstone of our system of justice, and courts must guard against unnecessary and baseless intrusion to protect 'the finality of verdicts' and to prevent 'unnecessary harassment of jurors.'"

    But Duncan added, "When a juror has been guilty of misconduct, relief is warranted in the form of a new trial."

    This is precisely what the judge said happened with juror 14, the forewoman, who kept important information about her life from attorneys during the critical jury-selection process. Among other things, juror 14 failed to disclose that she had been the victim of a major felony theft prosecuted by the County Attorney's Office and that her daughter was the culprit.

    "This failure," Duncan wrote, "deprived [Martinson] of the opportunity to probe juror 14 regarding any possible bias she might have as a result of her daughter's contact with the criminal justice system."

    Juror 14 also minimized the effect that the disposition of the 1997 Florida murder of her husband, a federal drug agent, by another officer still had on her. During the selection process, the juror suggested that she could be fair and impartial to Martinson, having had years to sort out her personal tragedy in her head.

    But Judge Duncan noted that during the post-trial evidentiary hearing, it came out that juror 14 "had publicly proclaimed that the justice system had let her and her family down [and that she had] appeared on an episode of 20/20 and expressed anger over the sentence imposed by the court, and spoke about her husband's death with her fellow jurors, including the ordeal she had endured."

    The judge also weighed the testimony of juror 14's fellow panelists, some of whom testified that the woman repeatedly bad-mouthed Martinson during the trial, calling him "a piece of shit," telling the others that "police don't lie," and suggesting it was the defense team's job to mislead and confuse jurors.

    Duncan said juror 14 had subverted the trial by concealing her "personal biases, which ultimately blossomed into prejudice that infected the trial to [Martinson's] substantial prejudice."

    It didn't matter whether that juror had intended to deprive the accused killer of a fair trial, the judge concluded: "The fact remains that she did."

    Interestingly, juror 14 was one of the eight jurors who voted to sentence Martinson to life in prison rather than impose the death penalty. Two jurors voted to send him to death row (though one of the two later testified that she had voted for death only to ensure Martinson of an automatic appeal). Two others remained uncommitted when Duncan declared the jury hung on the sentencing phase — that would have been retried had the judge denied the motion for a new trial.

    In the appellate court's unanimous March 8 ruling in Sosnowicz, the judges wrote that "the admissibility in a criminal case of a medical examiner's opinion regarding the manner of death depends on the particulars, facts, and circumstances of each case." (The manner of death concerns how someone died — say, murder or suicide — while the cause of death goes to what caused death, such as blunt-force injury, heart failure or — in the Martinson instance — acute Soma toxicity.)

    Read full article here http://www.phoenixnewtimes.com/2012-...news/reprieve/
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    Jeff Martinson Murder Retrial Scheduled To Start July 16

    Jeffrey Martinson, the onetime Ahwatukee business consultant who remains charged with killing his 5-year-old son back in 2004, will face a retrial on murder and child abuse charges this July.


    http://blogs.phoenixnewtimes.com/val...er_retrial.php
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    "Y'all be makin shit up" ~ Markeith Loyd

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    Jeffrey Martinson Of Ahwatukee Reindicted On Charges Of Murdering His 5-Year-Old Son

    Maricopa County prosecutors have re-indicted Jeffrey Martinson, whose conviction in the 2004 murder of his young son was overturned a few months ago.

    For strategic reasons, the June 5 grand jury indictment added a new count of child abuse and, this time, prosecutors will be able to argue both premeditated and felony murder theories instead of just the latter as they did in the first trial.

    (The felony murder rule states that any death that occurs during the commission of specified crimes such as arson, rape, and child abuse can be treated legally exactly as if it were a premeditated killing.)

    Judge Sally Duncan overturned last year's guilty verdicts of first-degree murder and child abuse against the 47-year-old Ahwatukee man, who has been incarcerated in a county jail since shortly after the August 2004 death of his 5-year-old son Josh.



    The state's theory has been that Martinson provided little Josh with a fatal dose of a sleeping pill because he was deeply upset with his visitation schedule and because he detested the boy's mother (the pair never married).

    Judge Duncan overturned the first guilty verdicts against Martinson after a highly unusual post-conviction hearing at which she heard testimony from each of the jurors.

    One of the main reasons: Juror misconduct.

    We wrote about that hearing and the controversial case in general in a March 8 cover story, which is available by link here.

    A July 16 trial date has been scrapped, and no proposed new date is noted in the court file.

    Also, prosecutors haven't said whether they plan to seek the death penalty again. The jurors in the first trial could not reach a unanimous consensus on whether to impose death.

    http://blogs.phoenixnewtimes.com/val..._ahwatukee.php
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    Trial in boy's death drags on

    Maybe Jeffrey Martinson killed his son in 2004, and maybe he didn't.

    But he's been in custody for eight years awaiting resolution to his case, first lingering in jail because there were not enough qualified defense attorneys to handle a glut of death-penalty cases.

    He finally went to trial last year in Maricopa County Superior Court, and last November he was convicted by a jury of first-degree murder. The verdict was thrown out, however, after defense attorneys proved that a jury forewoman had railroaded her peers to find Martinson guilty.
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    Then the gamesmanship began.

    The prosecutor, Deputy County Attorney Frankie Grimsman, tried to quash the original 2004 indictment and recharged Martinson on slightly different counts. That way, she could increase her options for getting a conviction and possibly remove the defense attorneys who got the mistrial from the case, as well as the judge who made the mistrial ruling.

    When that didn't work, she filed numerous motions to have the judge and the attorneys removed from the case. But the trial judge, Sally Duncan, and the Superior Court presiding criminal judge ruled against her on all counts.

    On Tuesday, the Arizona Court of Appeals ruled that Grimsman can, in fact, dismiss the original indictment -- unless Duncan wants to amend her findings or hold new hearings to determine if the prosecutor acted in bad faith.

    But the battle is not over.

    "My instinct is we'll probably take it up to the (Arizona) Supreme Court," said Michael Terribile, the lead defense attorney in Martinson's case.

    If the high court declines to review the case or sides with Grimsman, then she could succeed in getting Duncan off the case and earn some leeway in her argument.

    The trial has been much discussed in the legal community, and not just because of the rare juror-misconduct mistrial. Court observers describe Grimsman's tactics as an unprecedented attempt to stack the deck to ensure a conviction.

    "It outrageous, it's misconduct," said retired Maricopa County Superior Court Judge Kenneth Fields. "They're trying to improperly influence the outcome of the case."

    Mary Durand, a mitigation expert for death-penalty cases, agreed.

    "I've been doing this for 42 years, and I've never seen anything like it," she said.

    A spokesman for the Maricopa County Attorney's Office said no one in the office, including Grimsman, would comment on the case because it is pending.

    Meanwhile, Martinson, 46, remains in limbo.

    Death ruled overdose

    In 2004, Martinson was in a custody battle over his 5-year-old son, Josh, on the night Josh died. Martinson -- through his lawyers -- claimed he found the boy floating in the bathtub and could not resuscitate him. Then Martinson claimed that in his anguish, he tried to kill himself but failed.

    An autopsy showed that the boy had muscle relaxants in his bloodstream, and the medical examiner ruled that Josh died of a drug overdose.

    It appeared to be a murder-suicide, but Martinson was not charged with first-degree premeditated murder, but rather with first-degree felony murder, meaning that prosecutors wanted to prove that Josh died during the commission of another crime, specifically child abuse. Nonetheless, during the trial before Judge Duncan, Terribile and his co-counsel, Treasure VanDreumel, sparred with prosecutor Grimsman over whether Grimsman could present evidence showing premeditation.

    In fact, in a later court ruling, Duncan wrote, "The court further finds that the State repeatedly represented to the court that the state did not have sufficient evidence to charge the defendant with premeditated murder while continuing to advance arguments to support a jury finding intent to kill as a basis for convicting the defendant."

    "The court further finds that the state either deliberately disregarded the court's rulings or acted in a willfully blind manner."

    Terribile and VanDreumel argued that the death was consistent with drowning and that there was DNA on the bottle of muscle-relaxant tablets that could not be identified but could not be eliminated as coming from the boy. The defense maintained the boy may have taken the tablets himself, and Terribile points out that the pills resembled candy.

    Martinson was found guilty, and the jury determined that there were aggravating factors that made him eligible for the death penalty. But before the jury could sentence Martinson, a juror came forward to tell Terribile and VanDreumel about what was going on in the jury room. The forewoman was accused of browbeating other jurors into finding Martinson guilty.

    In March, after months of hearings, Duncan declared a mistrial based on juror misconduct and improper testimony from a medical examiner that Duncan had mistakenly allowed into the trial. She ordered a new trial.

    In June, Terribile attended a routine pretrial hearing at which Grimsman said that the original indictment had been dismissed and that she had taken the case back to a grand jury, this time charging felony murder based on child abuse and an alternative theory of premeditated murder. Under federal law, jurors do not have to reach a unanimous decision on a theory of death -- that is, premeditated or felony -- as long as they all agree on one or the other.

    Grimsman had also dropped the intent to seek the death penalty, and she represented to the judge that new counsel had been appointed. It was news to the judge and to Terribile, but Duncan vacated the trial.

    Within weeks, after motions filed by Terribile and VanDreumel, it became apparent that Grimsman had never filed a motion to dismiss the original indictment before the new one was obtained, which is in violation of the state Rules of Criminal Procedure. Duncan reinstated the original indictment.

    A flurry of motions

    In a subsequent ruling, Duncan reiterated that the prosecutor could not re-indict Martinson for premeditated first-degree murder because she had not presented any new evidence of premeditation, other than a posttrial talk with the mistrial jury, whose members said they thought Martinson intended to kill his son.

    Duncan wrote that "absent new evidence or other legally permissible bases, the state cannot seek to indict the defendant, after a trial and after the granting of a mistrial, where the state has previously argued that there is no evidence to support a premeditated murder."

    Furthermore, Duncan ruled that Grimsman could not make arguments that Martinson suffocated the child.

    Grimsman filed at least four motions to remove Duncan from the case, claiming she was biased against the prosecution. Duncan refused to recuse herself, and Presiding Criminal Judge Douglas Rayes refused to remove her.

    Grimsman then turned to the defense attorneys and again tried to remove Terribile and VanDreumel, this time calling in the head of the county's Office of Public Defense Services to testify that the attorneys were overpaid and that because the case was no longer a death-penalty trial, the defendant was not entitled to two attorneys.

    The matter was argued before Rayes, who sternly detailed the circumstances of Terribile's appointment to the case. Terribile had long refused to do contract work for the county, but given a dearth of qualified capital-case attorneys and the fact that Martinson was constitutionally at risk of being denied a speedy trial, a former associate presiding criminal judge had persuaded him to take the case at a higher-than-normal rate of pay.

    As for the question of two lawyers vs. one for a non-capital case, Rayes noted that the attorneys had split the duties and should not be punished for having a successful outcome in the first trial. He kept Terribile and VanDreumel on the case.

    "The state's bent over backwards trying to get the judge off the case and trying to get us off the case," Terribile said.

    But prosecutors don't get to pick the defense attorneys they go up against, as Durand pointed out.

    "Now anyone who deals with the defense is considered evil," she said. "I think we're lost if we can't provide a fair trial."

    Martinson went back on trial Oct. 1, but Grimsman filed a special action in the Arizona Court of Appeals, and the trial ground to a halt. VanDreumel and Grimsman argued before that court Oct. 24, and the ruling came down last Tuesday.

    So, Terribile and VanDreumel will ask the Arizona Supreme Court to reconsider whether the original indictment can and should be dismissed.

    Meanwhile, Jeffrey Martinson remains in jail after eight years without a final determination of whether he belongs there.


    Read more: http://www.azcentral.com/arizonarepu...#ixzz2DNJrtk00
    An uninformed opponent is a dangerous opponent.

    "Y'all be makin shit up" ~ Markeith Loyd

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