"[Two jurors] felt it should've been different, but did not want to be subjected to [her] anger — quite possibly more if questioned independently were they not under pressure. Unacceptable."

Laura later testified that she had written her note especially to support the cowed jurors, a retired bus driver and a substitute teacher, who told her they were too afraid to buck Kathy.

Though Kathy repeatedly denied it under oath, the testimony of other jurors suggests that she had it in for Jeff Martinson early on.

Josh Eberle-Martinson in a photo taken shortly before his August 2004 death.
Josh Eberle-Martinson in a photo taken shortly before his August 2004 death.
Jeff Martinson's booking photo
Jeff Martinson's booking photo

Several jurors said Kathy had called the defendant a "piece of shit," or words to that effect, during a break in testimony from the first prosecution witness, Josh's mother.

Still, the panel voted in Kathy as jury forewoman. Most of the jurors testified that she came across as well versed in the law, almost an expert.

A majority of the jurors said Kathy told them she was trained as a paralegal (she wasn't, and testified that she never said she was) and works for the Arizona Supreme Court (but in the education department, not directly for the justices), which gave her credibility as well connected inside the judicial system.

Laura and other jurors testified that they continually deferred to Kathy because she was the forewoman, the boss, and seemingly the most knowledgeable.

It was a decision that at least four of the jurors say they deeply regret.

Jurors are given "preliminary instructions" to read as soon as they are seated in a case.

The instructions, which the judge reads aloud at the start, are designed to serve as a kind of Bible, a template of dos and don'ts during the trial and deliberations.

The jurors are reminded to keep an open mind until the end, that what lawyers say is not evidence, and not to discuss details of the case with anyone, including each other, until deliberations formally start.

Judge Duncan told the jurors that Jeff Martinson, like all defendants, was presumed innocent until the prosecution met its burden to prove his guilt beyond a reasonable doubt, the highest standard in courts of law.

Martinson had to prove nothing, they were told.

The instructions go to the core of what is supposed to be a fair trial.

The judge also instructed the jurors on the legal definitions of "felony murder" and child abuse. The latter has six different levels, from the most serious (Type 1) on down.

The murder count against Martinson required "proof" that he committed or attempted to commit Type 1 child abuse — and that it caused Josh's death.

That level of abuse would have meant that Martinson, "acting under circumstances likely to cause death or 'serious physical injury,' 'knowingly' or 'intentionally' caused 'physical injury to a child under the age of 18.'"

In other words, that he had hurt Josh on purpose.

But the trial testimony would produce no evidence that Jeff Martinson gave his son the Soma, either with evil intent or in an idiotic attempt to sedate the hyperactive child.

All that could be said with certainly is that the boy had a small, but apparently toxic, amount of the drug in his body during his postmortem examination.

County pathologist Dr. John Hu's official characterization of the dosage in Josh's gastric contents as "acute" came under fire from the defense.

Hu conceded that scientists haven't established specific toxicity levels for Soma, much less "acute" levels, telling jurors just what he had said in a pretrial interview with defense lawyers:

"A child most likely would be more susceptible [to the Soma], so even this [low] level still could be toxic to a child. That's what I'm saying. I'm not saying 100 percent sure."

The doctor testified that if jurors found his ruling about the cause of death to be wrong, "Then they can tell me, and I will be more careful next time."

Dr. Hu said the police told him about Martinson's ongoing custody dispute, as well as how they found Josh's body (moved to the bunk bed), and that the defendant had tried to commit suicide after failing to call for aid.

All these things factored into his final opinion, Hu told the judge.

But even the known facts in Arizona vs. Martinson were not nearly as clear-cut as in, say, the felony murder/child-abuse case of current death-row inmate George Lopez.

Lopez was convicted in 1990 of the murder of his 1-year-old son at a Tucson apartment.

With his bare fist, Lopez inflicted fatal skull fractures, brain hemorrhaging, broken ribs, and a torn pancreas.

That is the definition of felony murder/child abuse.

George Lopez knew what he was doing as he pummeled the baby, whether or not he had planned to kill him.

Lopez's cell on death row was assured, and two appellate courts have upheld his conviction.

But the Arizona Supreme Court said — in the infamous December 1989 case of James Styers, one of 4-year-old Christopher Milke's killers — that Styers shouldn't have been convicted of felony child-abuse murder because he only had premeditated murder.

Like the Martinson case, the only evidence of serious physical injury to Christopher was the death itself, strange as that might sound to a layperson. (Josh's autopsy revealed a tiny bruise on the inside of his lip, but it couldn't be linked to the boy's death.)

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