A Superior Court judge yesterday afternoon granted a defense motion and ordered a new trial for convicted child killer Jeffrey Martinson.
Judge Duncan discussed the March 8 appellate decision in State v. Sosnowicz, which held that when a medical examiner's opinion about the manner of death is based on evidence that jurors would have been able to sort out without the aid of expert testimony, that testimony is inadmissible. (The manner of death concerns how someone died, i.e. homicide, suicide, natural causes.)
The appellate court said in its unanimous ruling that "the admissibility in a criminal case of a medical examiner's opinion regarding the manner of death depends on the particular facts and circumstances of each case."
In Martinson, the testimony of medical examiner John Hu clearly was pivotal for prosecutors.
Dr. Hu testified that Josh absolutely died as a result of a murder--what he called "acute Soma toxicity."
Judge Duncan chided herself for allowing 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."
She said that "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]."
The doctor gleaned that information from Phoenix police detectives, including the damning fact that Martinson had failed to call 911, unfavorable rulings against Martinson in his ongoing custody dispute with Josh's mother, and so on.
Duncan quoted from defense attorney Treasure Van Dreumel's written request for a new trial which noted that Hu's extensive testimony over three days was central to the State's case, and that her error in allowing the doctor to discuss the manner of death had "caused substantial prejudice to the defendant."
The judge also concluded that "juror misconduct did occur, and therefore, an independent basis exists to grant the defendant a new trial." (We wrote in detail about the misconduct allegations in the above attached story).
Though she rejected many of the defense claims, Judge Duncan did hone in negatively on the actions of the foreperson, Juror 14, an Arizona Supreme Court employee.
Duncan noted that the woman had failed to disclose during jury selection that she had been the victim of a major-felony theft and that her daughter was the culprit. She also hid and misstated her continued negative feelings about the criminal-justice system after revealing that her husband--a DEA agent--had been murdered years earlier by a fellow agent.
"By not sharing the true extent that her husband's death still had on her, Juror 14 impermissibly deprived [Martinson] of the opportunity to explore her true biases," Duncan wrote, adding that the woman also failed to disclose that her late husband also had served as a Maricopa County sheriff's deputy.
"The record is clear that Juror 14 engaged in a pattern and practice of withholding material information from the court and counsel during the voir dire process," the judge continued. "he question then for the court is whether these omissions and falsehoods undermine the impartiality of the jury."
Judge Duncan concluded that it had, saying that Juror 14's personal biases "blossomed into prejudice that infected the trial to [Martinson's] substantial prejudice. It is not relevant whether Juror 14 intended to subvert the process. The fact remains that she did."
We will write more about this case for the print edition in next week's paper, before which we'll ask representatives from the Maricopa County Attorney's Office about their gameplan.
Surely, they will retry Martinson--that's a no-brainer.
But if cooler heads prevail up on the 8th-floor of the admin building at 3rd Avenue and Jefferson (where County Attorney Bill Montgomery hangs out during work hours), prosecutors may end up dropping the death-penalty piece altogether and just seek to lock Martinson up for the rest of his life.
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That won't be an easy task.
But taking capital punishment out of the equation would save a lot of time and money, the latter about which we did a follow-up story which you can find here if you wish.
This case already has cost taxpayers millions of dollars, including extensive legal fees to the fine defense attorneys (Van Dreumel and lead lawyer Mike Terribile) and other expenses.
And, now, it's far from over.