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.)

In Sosnowicz, the medical examiner called the running-over of the victim "murder," and his sole rationale for rendering that opinion was what he had garnered from police investigators.

In Martinson, key prosecution witness Dr. John Hu of the Office of the Medical Examiner testified that Josh was the victim of a homicide. Again, this was based almost exclusively on what police told him before the postmortem.

Judge Duncan chided herself for having allowed Hu to testify about the manner of death, writing that she "improperly allowed an expert witness to tell the jury how to decide the case . . . Dr. Hu did not rely on any specialized knowledge in making his findings. Instead, he based his opinion on information that he was no more uniquely qualified to determine than the [jurors]."

It is uncertain whether prosecutors will drop their call for the death penalty before Martinson's retrial or whether they will offer him a plea bargain to reduced charges. The former business consultant has been incarcerated in a Maricopa County jail since his arrest shortly after his son's tragic passing.

Martinson's defense lawyers filed paperwork last week, asking that a "reasonable" bond be set in the case. Surely, prosecutors will object to any such reduction.

The motivation for allegedly murdering little Josh involved custody and then-ongoing financial disputes between him and his estranged girlfriend. Martinson had expressed increasing frustration with how things were going for him in Family Court, records show.

Martinson later told Phoenix police that he had no idea how Josh had gotten the Soma tablet (probably just one, according to toxicology tests of the child's gastric contents) at his apartment during a weekend visit, and that he had tried to commit suicide after finding his son dead.

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Paul Rubin
Contact: Paul Rubin