Albert Gaxiola Trial—Mitigation, July 8, 2011

The testimony at Albert Gaxiola’s mitigation portion of his trial was truly heart wrenching.  Nine members of his family were present in the courtroom to support him and to testify.  Surviving victim Gina Gonzalez was present with what appeared to be her mother and father and a girlfriend.  Media consisted of the usual pro-government Tucson reporters.

The mood in the courtroom was very different from any day of Shawna Forde’s trial.  For her there were many bailiffs present, as if they were expecting her to escape at any moment, and several fully-armed detectives seated strategically behind her in an obvious move to remind the jury that she was guilty.  Forde’s trial resembled a witch-burning.  In contrast, at Gaxiola’s there were only 2 bailiffs present, one near the defendant, and one near the public entrance, and only Detective Juan Carlos Navarro, who was seated with the prosecutors.  The jury seemed attentive and interested in the proceedings. 

Family relationships in the Gaxiola clan were complex and difficult to follow, and it seemed the determination of “family” had nothing to do with whether they were blood relations or not, although everyone was Mexican-American.  The relationship of Gaxiola to Gina Gonzalez’ family appeared to be by marriage to a cousin. 

Every member of Gaxiola’s family said he was a great guy, generous to a fault, popular with everyone, and that he loved children, was fun to be with, and was not an angry, mean or negative person.  He helped family members who were poor, bought clothes for the children, and took them to amusement parks as well as other activities.  His lawyers repeatedly asked the witnesses, including an Arivaca neighbor, if they had ever seen him mad.  All of them said no, that he was a happy-go-lucky guy.  His brother said he had never heard anyone say anything bad about Albert.  The defendant smiled on occasion during the testimony and appeared to chuckle at the stories they told about him.

Everyone who testified cried and said that they would greatly miss Albert if he were put to death.  The men cried harder on the witness stand than the women, and became choked up with emotion so frequently that they were unable to speak for half a minute at a time.

According to his niece, Erikah Muniz, Albert was always supportive and encouraging: “he never put us down, and he told us we needed to succeed.”

His neighbor, a retired woman named Joy Bittener, said Albert often helped her without being asked, and cited many instances of his kindness to her.  While living across the street from him, she noticed he had a “weakness for blondes.”  She said she baked him cookies and regarded him as being “like one of my kids.”

Robert Gaxiola, Albert’s father, came from California to testify.  He is 65, and has not seen his son since he was 2 years old.  He said that Albert’s mother, Sandra, was a liar and could not be trusted.  He was drafted in 1967 and was away from home for 6 months while serving in the Army in Germany.  He was summoned home by a phone call indicating his wife was pregnant, had gonorrhea, and told he needed to come home to sign permission for her to have an abortion, as the baby was infected as well.

While he was on the plane, he figured out that it couldn’t be his baby since his wife had obviously gotten pregnant while he was gone.  Instead of flying to Portland, OR to see his wife, he got off the plane in San Jose California and went AWOL.  Gaxiola was only 21, and he took his wife’s infidelity hard.  He turned to drugs, alcohol, and fighting, and his life began a downward spiral which included multiple prison sentences.  He tried to see his son, but his wife Sandra just shut the door in his face.  Eventually, he was caught by Military Police and locked in the stockade at Fort Ord, from which he claims to have escaped twice. 

When Albert was about 2 years old, Mr. Gaxiola took him and two siblings to a park.  He returned the others, but not Albert, kidnapping him and bringing him home with him to San Jose.  Albert’s mother called the police, and Albert was taken from his father.  Robert Gaxiola made some attempts to see his son over the years, but was unsuccessful as his substance abuse spiraled out of control.  “I had a death wish,” he stated.  He says he wanted to have a relationship with his son, but his addictions were his priority.  “Albert was the first thing I’ve ever really loved.”

Robert Gaxiola says he quit using drugs and alcohol in 1994 and has been clean ever since then.  He also converted from Catholicism to Protestantism.  Since then he said he’s held regular jobs and taken care of his mother when she was sick.  When asked how the death penalty affects him, he broke into tears and could barely speak.  “Now I found him, I don’t want to lose him.”

Greg Gaxiola, Albert’s brother, described him as “fun-loving, likes to joke around, a wonderful heart, and kids love him.”  He said his only weakness was women.  He said Albert was conflict-averse, and talked about a time when someone wanted to fight, and he had just walked away.  When asked what impact the trial has had on the family, he choked up, sighed and said, “Words can’t describe.”

Sean Sanchez, who grew up with Albert, is the high achiever of the family.  He works as a mortgage broker and he owns a number of rental properties.  After his mother died in a car accident, he was raised “on and off” by his abusive father.  He grew up in 21 different foster homes, but he remembers the 3 years he spent with Albert fondly.  He talked about how Albert had helped him at camp when other kids had treated him badly.  In one story he told, he and Albert were shooting a BB gun and a bird got wounded by accident.  He said that Albert was very upset by that, and went looking for the bird to help it, but he never found it.

When Albert got out of prison for transporting drugs in Arizona, Sean asked him to join the family in California and offered him a job as a loan officer.  Albert worked for a time and was an excellent salesman, although he was not too good at filling out paperwork and paying attention to details. 

Albert moved to Tucson to be with his mother, and Sean believes that he was seduced into the easy life of smuggling drugs.  Sean said that the entire family knew that Albert’s mother and grandfather were involved in the drug trade, and suspected where Albert got his money.

Sean talked about a time Albert came to visit the family, bringing bags of cocaine and wads of $100 bills.  He took the family out, bought them all kinds of things, and then almost went home broke.  Albert “borrowed” Sean’s last $20 out of his wallet and left him a note saying he would repay him after he got back to Arizona.  Taking Albert’s life would be such a waste, Sean said, because he’s so talented and he’s not anti-social.  “Albert’s a very bright guy who doesn’t make smart decisions.”

When the jury was in recess, defense attorneys Jack Lansdale and Steve West argued a motion to allow unsworn statements into the trial.  In a desperate attempt to show Gaxiola as being duped by the previously convicted defendants, they sought to expose possible crimes of which they were suspected but not convicted, and to admit statements from witnesses who never made it to trial.  The obvious goal was to show the other defendants were very bad, which would make their client look good.  Judge Leonardo said he was “uncomfortable being in a court proceeding where the rules of evidence don’t apply.”  Prosecutor Rick Unklesbay protested that in the case of Jason Bush being accused of cold case murders in Washington in the 1990s, he hadn’t been charged, extradited, or convicted.  (Shawna Forde was accused by her brother and mother of burglary, but charges were never filed, and that wasn’t allowed into her trial.  Jason Bush’s alleged Washington murders were not allowed into his trial, either.)  Judge Leonardo asked Gaxiola’s attorneys:  “Do you think that your client being duped by Shawna Forde and Jason Bush equates to a lessening of his participation in these crimes?”  Both attorneys sheepishly admitted this was their goal.  Leonardo then refused to rule on that motion.

In an unusual move, when the jury returned, Jack Lansdale and his private investigator, Almancita Valenzuela, play-acted witness and questioning attorney.  They read transcripts from Shawna Forde’s trial which portrayed her as a blow-hard and which seemed to indicate she wanted to steal drugs, money and guns from smugglers.  Almancita was quite good with reading the witnesses’ lines while on the stand, but after 10 minutes of that, it became rather uninteresting.  The reading continued for almost an hour until court was finally adjourned for the day.