Overzealous Prosecutors, a Runaway Jury, and a Dead 5-Year-Old
The 12 jurors filed solemnly into the downtown Phoenix courtroom after lunch last November 14, a Monday.
It had been three long months since opening statements in the tragic murder case of Arizona vs. Jeffrey Martinson.
For their troubles — and there were many — the jurors were paid all of $12 a day, plus mileage and possible reimbursement for some of their lost income.
New Times cover story
Martinson, a 45-year-old onetime business consultant, sat at the defense table with his attorneys, Mike Terribile and Treasure Van Dreumel. He was as pale as death — no surprise, in that he had been incarcerated in a Maricopa County jail for seven years.
Martinson had been arrested shortly after the August 2004 death of his 5-year-old son, Josh. The boy died at Martinson's apartment in Ahwatukee during a court-ordered weekend visitation.
Josh's mother, Kris Eberle, had alerted Phoenix police after Martinson didn't return their son on time and wasn't answering his phone.
Police found Josh's cold body on the upper bunk of a bed, moments after a neighbor entered through an unlocked arcadia door and found Martinson unconscious in his own bedroom, a plastic bag over his head and superficial cuts on his wrists from a box cutter.
A county pathologist ruled that the cause of the boy's death was "acute carisprodol toxicity."
The manner of death was listed as a homicide.
Pathologist Dr. John Hu concluded that Josh had ingested enough of the prescription muscle relaxant Soma to kill him. The amount of the drug in Josh's gastric contents was less than one 350-milligram pill, a normal adult daily dosage.
Prosecutors alleged that the ex-couple's vicious ongoing battles in Family Court — Martinson was losing — had pushed him to exact the "ultimate revenge" against Eberle, the death of their son.
But Deputy County Attorney Frankie Grimsman hadn't alleged the case as a premeditated first-degree murder, in which a killer plans his deed ahead of time, even briefly.
Instead, Martinson was charged under Arizona's "felony murder" rule. It holds that if a person dies while someone else is committing or attempting to commit crimes including arson, robbery, rape, or the most serious level of child abuse, it's legally the same as if the defendant plotted the killing.
To win a "felony murder/child abuse" conviction, the state needed only to prove beyond a reasonable doubt that Josh's death was an inadvertent consequence of his father's intended child abuse.
In this instance, this would mean that Martinson had given Josh the Soma pill with the intent to hurt but not kill him.
In October 2004, outgoing Maricopa County Attorney Rick Romley approved his Family Violence Unit's decision to seek the death penalty.
To secure a "felony murder" conviction, prosecutors were supposed to have the legal burden of proving that Martinson actually had drugged his son (the official cause of death), no matter the intent.
Could the child have taken the drug himself, or could his father have "recklessly" or "negligently" (less-serious components of the child-abuse laws) stupidly given it to Josh to calm him down.
How Josh got the Soma into his system is a lingering mystery; and one juror later said "only Josh and his father know the answer to that one."
But a little boy was dead, and he shouldn't have been.
This apparently sold prosecutor Frankie Grimsman on seeking Jeff Martinson's execution.
Grimsman argued at court hearings and in legal papers that any level of child abuse leading to Josh's death constituted felony murder.
Superior Court Judge Sally Duncan asked Grimsman shortly before the trial began last August what she would tell jurors about Jeff Martinson's alleged mind-set.
"Obviously, frustration and anger at Ms. Eberle was a factor in what the defendant was feeling that day and what probably contributed to the build-up of emotion," the prosecutor said, sounding as if she were describing a premeditated murder.
"We don't know what was going into his thinking at the time that this Soma was being administered," she continued, adding that Martinson definitely had given it to Josh to injure the boy.
Then came the clincher.
"In the state's opinion," Grimsman said, "we simply have to prove that a child abuse occurred, and in the course of this conduct [giving Josh the pill], this child died — and that's felony murder."
That was akin to what she had told the judge in September 2009. Comparing the case to an unspecified Greek tragedy, she had said then, "It is the very nature of the relationship of Kristen Eberle and [Martinson] that served as the motive for murder. The anger and resentment that built over time caused [him] to murder his own child."
Jeff Martinson never did admit to giving his son the drug. He testified dramatically that Josh accidentally drowned, something prosecutors could not refute with their medical witnesses.
Martinson told the jury that, in a traumatized state, he moved the boy's body to the bunk bed after pulling him out of the tub, dead. (Police noted at the scene that the rug just outside the tub was wet and smelled of urine, which lent at least some credence to Martinson's belated story.)
He claimed that he then tried twice to commit suicide with alcohol, pills, and by cutting his wrists. He spoke by phone to a neighbor at one point, telling her (according to her testimony), "We love you, and we'll miss you."
But Phoenix police detectives got no such account from Martinson.
In an hours-long interrogation that began immediately after Martinson's release from a hospital, a seemingly dazed Martinson (still in his hospital gown) swore he had no idea how Josh had died.
That interview surely didn't help his chances at trial after jurors compared it with his courtroom testimony.
The forewoman gave the verdict forms to Judge Sally Duncan's bailiff, who handed them to the judge.
Jeff Martinson faced two charges, the felony murder count and child abuse itself.
The bailiff read the verdict aloud:
Guilty on both counts.
The defense attorneys asked Judge Duncan to poll jurors about their votes.
Each agreed that they were his or her true verdicts.
Judge Duncan reminded the panel that its work wasn't done. Jurors in Arizona, not trial judges, determine sentences in death-penalty cases after a separate mini-trial.
The panel took the next step, the formality of finding Martinson "eligible" for a possible death sentence.
Next, they started enduring a final task, deciding the defendant's fate, life or death.
Their deliberations were cut short when the judge declared a mistrial a few days later, after the jury confirmed it was deadlocked. (Just two of the 12 jurors had voted for death, two were undecided, and the rest were for life imprisonment.)
Ordinarily, the judge would set a date for a retrial just on the sentencing, and a newly formed panel would try again to reach a verdict.
But detailed notes sent to Judge Duncan by two of the jurors shortly after the guilty verdicts (just before the sentencing phase began) spun this tragic murder case into serious turmoil.
In the first missive, a juror named Laura claimed that forewoman Kathy had bullied several other jurors into submission and also had badly misinterpreted the judge's legal instructions on felony murder as it relates to child abuse.
(New Times was unable to determine the last names of all the jurors)
Laura wrote that Kathy, an employee of the Arizona Supreme Court, never allowed discussion during deliberations on anything other than the most serious, or "intentional," kind of child abuse.
Laura claimed that she and three of her peers had wanted at least to mull over the definitions of less serious types of abuse but repeatedly were shot down.
Martinson never stood a chance if the jury never contemplated even the possibility that he merely had been legally "reckless" or "negligent" in allowing his son to consume the Soma pill.
Federal courts and most states don't permit judges or lawyers to delve into what takes place in a jury room during a trial and deliberations. Arizona rules do allow such inquiries by judges in rare circumstances, but only in criminal cases.
One of Judge Duncan's front-end questions after getting the jurors' written complaints was this:
Should she "invade" the normally untouchable province of jury deliberations and try to get to the bottom of things?
The judge decided, over the strong objection of prosecutors, that the claimed goings-on within the Martinson jury fit such rare circumstances. In January, she began to hear one by one from the 12 jurors and three alternates, in a days-long evidentiary hearing fraught with human and legal drama.
Martinson's attorneys asked the judge to declare a mistrial and start again from the beginning, the guilt/innocence phase.
Prosecutors expressed outrage that Judge Duncan allowed things to get this far.
"There was clearly sufficient evidence to support convictions," Deputy County Attorney Grimsman wrote, before the judge ordered the evidentiary hearing. "There was no [juror] misconduct, [and] there is clearly nothing more going on [other] than some personality conflicts between some of the jurors in this case."
Judge Duncan won't make a ruling until after the lawyers present their final oral arguments, scheduled for March 26.
As it sits, the defense team's argument that Jeff Martinson was deprived of a fair trial because of juror misconduct is very compelling. But the legal standard for a judge to overturn guilty verdicts is steep, and Martinson has no guarantee of winning a new trial, either on his sentencing or on the whole shebang.
His lawyers have alleged, among other things, that the jury:
• Wrongly shifted the legal burden of proof from prosecutors to the defense, with some jurors admitting on the witness stand that they voted to convict because Martinson failed to "prove" his innocence beyond a reasonable doubt.
• Failed to formally vote on one of the two charges — the actual child-abuse count — but deemed Martinson guilty of that crime anyway, in violation of the court's instructions to carefully examine each count on its own.
• Was convinced by the forewoman that it should convict Martinson of felony murder even if he meant no "intentional" harm in giving Josh the pill or hadn't even given him the pill.
• Looked up the definition of a legal term, "heinous," on the Internet during deliberations (in violation of Judge Duncan's admonition) after the judge failed to promptly answer their question about what it meant.
It became obvious during the recent evidentiary hearing that far more than murky "legal technicalities" were at play.
The fuss wasn't just about jurors' gabbing about the viability of certain witnesses and evidence before officially starting deliberations, which some did even though it is forbidden by the rules.
Instead, the jurors' disturbing testimony went to the heart of what is supposed to be sacred about our criminal-justice system. That includes how they are supposed to conduct business — following a judge's instructions, confusing or not.
This is what Judge Duncan told the jury, verbally and on paper before deliberations, about the burden of proof:
"The law does not require a defendant to prove innocence. Every defendant is presumed by law to be innocent."
But several jurors said they were swayed by forewoman Kathy's inaccurate insistence that Martinson had to prove he hadn't committed the crimes against his son.
Kathy's own testimony confirmed her point of view, the exact opposite of what Judge Duncan had instructed.
"I said to the jury that it was the defense's job to give us other things to think about," she testified on January 25.
"I can't remember the exact verbiage. But the gist of it was that the defense had to give us reasons to believe that it didn't happen this way, or whatever . . . had to show that the defendant didn't do it, to give us a reason why he wouldn't do it."
Many jurors took Kathy's words to heart, such as juror James, whose testimony last month revealed his apparent confusion.
"The way I understood [your instructions]," he told Judge Duncan, "[is] if the child abuse was committed and the child died — whether it was intentionally or unintentionally — it still was felony murder."
But that's not what the judge said and not what Arizona law says.
Clearly, Jeff Martinson had to have "intended" to hurt his son for it to get to the level of "felony murder."
Like several other jurors, James said the state hadn't proved its murder case against Martinson. But, remarkably, he voted guilty anyway.
James was none too happy about anything that happened at trial.
"In my opinion, the [Phoenix police] investigation sucked, the autopsy sucked, the prosecution was lackluster and ill-prepared," he blurted out at the end of his testimony in response to a follow-up question from prosecutor Grimsman.
"So the evidence is what I looked at. That's what I made my decision from — personally. I had to reasonably make a decision like I make any other decision in my life, okay? And that's what I did."
Grimsman had no further questions.
It was a case that had lingered in the criminal-justice system for seven years before going to trial, two years longer than Josh Eberle-Martinson had lived.
Arizona vs. Martinson had become infamous at the Maricopa County courthouse because of its interminable delays caused by nasty county politics, intransigent attorneys on both sides, and incessant financial concerns.
A dozen defense attorneys represented Martinson over time, with all but veteran trial lawyers Mike Terribile and Treasure Van Dreumel falling by the wayside for one reason or another.
(The Martinson case already has cost county taxpayers more than $2 million in defense attorney fees alone — almost $1 million each to Terribile and Van Dreumel. A future story will examine that troubling aspect.)
From the start, the case teemed with complex legal issues that ran alongside the heartbreaking narrative of an innocent boy's life abruptly ended.
Perhaps most extraordinary is that if juror Laura hadn't summoned the courage to write that bombshell note to Sally Duncan on November 17, the judge never may have learned about the monumental dysfunction that overtook the deliberations.
Laura wrote of the forewoman, Kathy, "It is my understanding that you [cannot] use scare tactics and threaten, intimidate, or disregard concerns and opinions from other jurors. The manner in which this verdict was reached was based on intimidation and disregard for the legal process."
Laura later testified she'd finally realized during the "death eligibility" phase after the guilty verdict that Kathy had misled her and other jurors about the jury instructions.
It wasn't that Laura, an employee of the U.S. Marshals Service, considered Jeff Martinson innocent. She was convinced that he was guilty of something, but not necessarily of the most serious form of child abuse.
Even so, Laura was one of the two jurors who voted to send Jeff Martinson to death row, but not, she later testified, because she believed he belonged there.
Instead — and this shows how twisted it was inside that jury room — Laura said most of the others wanted life, not death. She said she hoped that hanging the jury would result in a retrial on Martinson's guilt or innocence (not just the sentencing) and maybe make things right.
Another juror, Carlos, also wrote a note to Judge Duncan on that same date, November 17. Though he hadn't been part of the deliberations, Carlos said some jurors contacted him after rendering their guilty verdicts.
"It was told to me by several jurors that the jury foreman intimidated and coerced at least two people into changing their votes when they wanted to consider a lesser charge," he wrote.
"[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.
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.)
Unlike Martinson, however, Jim Styers also was convicted of premeditated murder, and the high court did uphold that conviction. He remains on death row, along with Christopher's mother, Debbie, convicted of orchestrating the "hit" on her son ("Death Row Debbie," April 10, 1991).
Forewoman Kathy later testified that she'd understood the judge's instructions to mean that the jury had to decide the felony-murder count before even contemplating anything less serious, and that's why she wouldn't allow discussion of the so-called "lessers."
"But the instructions never said you couldn't discuss anything," defense attorney Terribile told the judge during the evidentiary hearing. "The jury always has the right to discuss everything."
The Martinson defense team knew from the start that it had an uphill struggle.
Its client was highly unsympathetic, a man who, in the best-case scenario, had allowed his child to die (intentionally or not) on his watch, failed to call authorities afterward, and then took the coward's way out by supposedly trying to kill himself.
The selection of the jury obviously was going to be critical.
"Death-qualifying" prospective jurors is tedious, and litigants have to rely on the expected honesty with which would-be panelists relay their backgrounds and beliefs.
Perhaps a jury consultant would have steered away defense attorneys from future forewoman Kathy, a middle-aged widow whose husband — an honored U.S. Drug Enforcement Agency agent — was murdered by a drunken fellow officer in a nationally publicized 1997 shooting.
But the Martinson defense team had no such expert to guide them.
Kathy told the attorneys during jury selection that her husband had been murdered by a "corrupt" cop who was sentenced to a reduced nine- to 15-year prison term. She also expressed her satisfaction with the legal process in that case.
The defense attorneys kept her on their final list, an ill-fated decision.
But Kathy took a completely different tack when confronted about it by Martinson's attorneys during the recent evidentiary hearing.
She admitted that she had been angered and upset with what she considered a soft sentence for her husband's killer, who was allowed to plea-bargain to reduced charges after psychiatrists said he was insane and in an alcoholic stupor at the time.
If the defense lawyers had known her dissatisfaction with the murderer's "sweetheart deal," as she called it, they surely would have removed her from further consideration.
But Kathy's true feelings only came to light months after the Martinson jury had rendered its guilty verdicts.
No one on the jury believed during the deliberations that Jeff Martinson should walk out of court a free man.
Some panelists said at the recent hearing that they still believe he gave little Josh the pill to kill the boy in a sick effort to "get back" at mom Kris Eberle.
But one juror, Jo, told Judge Duncan that she would have hung the jury had she not been hounded by Kathy into clamming up about the viability of the less-serious child-abuse charges.
Whenever she tried to make a pro-defense point, Jo said (and her account was corroborated by others), "The foreperson jumped up and started a tirade basically aimed at me and how I had fallen asleep so much [during the trial] and how dare I say that, and she's gonna call the bailiff and say we're a hung jury."
Like all the other jurors, Jo eventually voted guilty on the felony-murder count.
But like many of her peers, she said she doesn't recall ever voting on the actual child-abuse charge, Count Two.
Jo told Judge Duncan that she now knows she made a terrible mistake.
She agreed with a majority of the panel during the evidentiary hearing that prosecutors never proved that Martinson gave Josh the drug.
The testimony of juror Krysten was typical.
"Did you personally find beyond a reasonable doubt that Mr. Martinson gave him the pill?" attorney Terribile asked her.
"There is no actual proof that he gave the pill to him," replied Krysten, a pharmacy employee. "It's just that the child had the medicine in his system."
So did she believe that the state proved that the cause of death was the Soma overdose?
"No. I think it was contributory, but I don't think it was the cause of death itself . . . I have no idea what caused his death."
However, Krysten said Kathy swayed her that the mere presence of the Soma in Josh's body was evidence of the most serious level of child abuse, the intentional type.
The two key witnesses at the jurors' hearing were the forewoman and Laura — whose note to the judge had been the catalyst for the whole thing.
Defense attorney Van Dreumel asked Kathy whether it was true she had argued during deliberations that Martinson intended to kill Josh to punish the mother.
"I believe I stated that when we were looking at motive, that could have been a motive for why he did it," Kathy said.
"So you were in the process of trying to consider why Jeff would intentionally kill his son?"
"Yes," Kathy agreed, adding that she personally was convinced that Martinson did mean to kill his son, as in premeditation.
But several panelists testified that Kathy never read aloud the judge's answer to an important juror question posed during deliberations.
Judge Duncan's succinct reply should have repeated a message she already had given them — Martinson wasn't charged with premeditated or intentional murder, and it wasn't to be considered.
At first, Kathy testified that she and the rest of the panel also formally voted guilty on the child-abuse count, as required by law. But when pressed by the judge, she increasingly expressed confusion about the sequence of events.
Judge Duncan stopped Kathy's testimony at one point and ordered a short break, telling her to relax, that she wasn't going to get into trouble for saying the "wrong" thing.
"This isn't like a kindergarten situation where you're going to the principal's office," the judge said.
Prosecutor Frankie Grimsman objected to the recess, saying Kathy would return and try to say what she thought the judge wanted to hear.
But it didn't play out that way.
Kathy seemed to be even more forgetful of her jury experience when her testimony resumed.
Her perspective stood in stark contrast with Laura's.
Laura said she was one of the four jurors who desperately wanted to discuss the less serious types of child abuse but constantly were rebuked by Kathy during the five days of deliberation.
Laura testified that she had expected to finally be able to discuss the less serious levels of child abuse after the felony murder verdict was read, after which she said she believed the panel could reverse its decision on Martinson's guilt.
Laura said she was flabbergasted in the courtroom when the bailiff announced that she and the others also had convicted Martinson of child abuse.
"I wanted to get up and say, 'This isn't right! We didn't vote on any of this!'" Laura testified, breaking into tears. "But I didn't. I feel stupid."
Laura said she became even more sickened by her own decision to convict Martinson of murder after a fellow juror, the retired bus driver, told her before the sentencing phase, "I know [convicting him of murder] was wrong, but I'm not going to say anything."
Laura finally did say something, first to the other jurors and then in the critical post-conviction note to Judge Duncan.
Defense attorney Terribile asked Laura on the stand whether she was suffering from buyer's remorse by second-guessing her decision about Jeff Martinson's guilt.
No, she said, "It's my stupidity for believing what [Kathy] told me."
Asked whether she had anything to add to that, Laura looked up at Judge Duncan and said:
"I made a mistake. I want someone to fix it."
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