Defense costs grow in Arivaca killing case

Could be one of Pima's costliest as 3 suspects face death penalty
2010-09-28T14:00:00Z 2014-09-05T15:19:32Z Defense costs grow in Arivaca killing caseKim Smith Arizona Daily Star Arizona Daily Star
September 28, 2010 2:00 pm  • 

Three people accused of killing a 9-year-old girl and her father in Arivaca last year haven't yet been to trial. But their defense teams have already billed taxpayers close to $300,000, putting the case on track to become one of the most expensive in Pima County history.

Attorneys for the trio predict the $100,000 spent on each defendant so far could triple or quadruple by the time jurors are asked to render their verdicts. Appeals would be on top of that.

Shawna Forde, 43; Albert Gaxiola, 43; and Jason Bush, 36, are facing the death penalty if convicted of the first-degree murder of Raul Flores, 29, and Brisenia Flores, 9, on May 30, 2009.

Authorities believe Forde thought Flores was a drug dealer and recruited a group to raid his house for drugs, cash and guns to help fund her organization, Minutemen American Defense.

Bush is tentatively scheduled to go to trial Oct. 19. Forde and Gaxiola are set to go to trial in January.

Defense attorneys say the possibility of a death sentence is driving up their costs. The law requires that each defendant to be represented by two attorneys and that jurors be given all information that might mitigate their sentences, if the suspects are convicted.

The lawyers have hired an array of mitigation specialists, investigators and paralegals. They've also hired DNA and mental health experts.

"If something is needed, how do you justify someone's life versus the money that needs to be spent?" said Chris Kimminau, who represents Bush.

Defense attorney Steve West, who represents Gaxiola, said he can think of nothing more embarrassing than being asked why he didn't perform a certain task when the case is examined and re-examined after the trial ends.

"It begins with the premise that you've got to go through everything and make sure you're not missing anything," West said. "The difference between a death penalty case and a regular homicide case is phenomenal because of all of the scrutiny. ... You don't want to be a 'C' attorney on a death penalty case."

The lead attorneys are being paid $100 an hour and their co-counsel is paid $75 an hour. The total bill for the attorneys alone now stands at $151,585.

Every bill must be submitted to and approved by Pima County's Office of Court Appointed Counsel.

The money covers time spent poring over police reports, interviewing about 50 witnesses, conferring with experts and reading their reports, discussing game plans, research, writing and responding to legal motions, maintaining files and meeting with the defendants.

There is an effort to hold costs down, such as multiple lawyers interviewing witnesses at the same time or sending less-expensive investigators to question less-crucial witnesses.

"You have to know, as much as possible, everything that's going to happen at trial," said Forde's attorney, Eric Larsen. "It's like a chess game. You have to know what your moves are going to be, how your opponent is going to respond and how you're going to respond to their response."

The trial is the easy part for him, Larsen said, because by then he has spent months, if not years, preparing.

Once the trials, which are expected to last seven weeks, start, Larsen and the other attorneys said, they expect to work up to 14 hours a day.

While Bush confessed to the slayings, the attorneys for Gaxiola and Forde will argue their clients weren't at the murder scene, which complicates the cases.

According to court documents, Forde's attorneys intend to blame Gaxiola and Bush. They hope to prove Gaxiola and former Arivaca resident Oin Oakstar conspired to have Flores killed because he was a competitor in the drug trade.

Oakstar, who was indicted on a weapons charge shortly after the slayings, was sentenced to three years of intensive probation as part of a deal to testify against the others. He admits that he planned to participate in the plot but got too drunk.

If one or all of the three defendants is convicted, defense teams must be ready for the next phase of the trial - convincing jurors why their clients shouldn't be executed.

So far, defense investigators and mitigation specialists have submitted bills totaling $101,000.

The cost of mitigation depends upon the age of the defendant, how many places they've lived, how many schools they've attended, their medical and psychiatric history, where their families are now and how cooperative the investigators' sources are, the attorneys said.

Larsen said his team members have traveled to five states to gather records and interview Forde's friends and family.

Kimminau said he has done his best to juggle costs with his client's needs.

"We've had meetings where we've said, 'Don't go down this path' because we didn't think it would lead anywhere and we didn't want to spend the money," Kimminau said. "I don't let (my investigator and mitigation specialist) run willy-nilly and do whatever."

The attorneys say it is best to spend the money, rather than have the case reversed on appeal and have to go through the expense of retrying it.

They've grown used to people complaining about the expense.

"Everybody feels that way until someone in their family is charged with murder and is facing the death penalty," said Jack Lansdale, Gaxiola's other attorney.

The attorneys who take on such cases don't do it for the money, Lansdale said.

"I get paid $100 an hour for these cases, but I get $125 an hour in federal court for representing someone caught driving a load of marijuana across the border," Lansdale said.

Representing someone whose life is on the line is extraordinarily stressful, emotionally taxing and time consuming. But Kimminau wondered what would happen if no one were willing to take on the job.

On StarNet: Follow the news and events at Pima County's courthouses in Kim Smith's blog, At the Courthouse, at go.azstarnet.com/courthouse

what some other cases cost

How much taxpayers spent to defend those accused of some of Tucson's highest-profile, and most expensive murder cases. Where applicable, costs include the completed trial and appeals of their convictions.

Case Filed Status Defense Cost

John Cruz June 2003 Convicted/Upheld $370,883

Bradley Schwartz November 2004 Convicted/Upheld $302, 610*

Christopher Payne March 2007 Conviction/On appeal $124,222**

Nick Delich June 2008 Trial pending $119,720**

Jason Bush June 2009 Pending $89,472

Albert Gaxiola June 2009 Pending $105,609

Shawna Forde June 2009 Pending $97,151

*Schwartz has been ordered to repay Pima County nearly $184,000 in attorneys' fees.

** Does not include the salaries of Pima County public defenders, paralegals, investigators. Those figures were not available.

Source: Pima County

Contact reporter Kim Smith at 573-4241 or kimsmith@azstarnet.com

Copyright 2014 Arizona Daily Star. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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