The Gary Kelley Murder Trial

I was recently on a jury for a murder trial — the trial of Gary Kelley for the so-called “SB1070 Murder”. Here is my day-by-day account of how it went. Each section was written the same day that everything happened so in a few cases, I didn’t know certain things until later on. I’ll try to wrap everything up at the end.

This is rather long. The short version is: Guilty

Without further ado…

Day Zero: The Selection

I showed up for jury selection at 8:30 and sat around in the Jury Assembly room until 9am. They called up the first 60 potential jurors and I was not in that group. Thirty minutes later, they called the next 60. This time, I was number 13.

I assumed that the number mattered a lot. You see, the last time I was summoned and got to the selection process, they pretty much had the first 20 or so people go into the jury box and were asked a bunch of questions and the rest were off to the side, in case too many of the first 20 were released. Therefore, somebody with a number of 13 is pretty much guaranteed to be picked.

We were told that the case was for Second Degree Murder and Aggravated Assault. An elderly (white) man named Gary Kelley (seated at the defendant’s table) was accused of murdering a (Hispanic) man named Juan Varela and threatening to kill Juan’s brother Tony. They then started asking questions… a LOT of questions. The questions lasted all morning and for a couple hours after lunch. You could tell which people really wanted to get out of jury duty, though. They pretty much brought up answers to any little thing and did so over and over. The judge didn’t just accept any answer without comment, though. Each objection was directly challenged and the person was asked to elaborate. For instance, two people claimed that they would have financial hardship at their work since they may not get paid (didn’t know the company jury policy) and, besides, they are managers and couldn’t get somebody to fill in for them on such short notice. The judge made them call in to work during lunch and find out what the jury policy was and if they could get somebody to cover for them. Both admitted sheepishly after lunch that their respective companies totally understood and covering for them was no problem at all. Heh.

Besides, unless you were self-employed, the financial hardship excuse didn’t carry any water. That’s because the trial was scheduled to last for six days (two weeks). Trials that last more than five days are eligible for reimbursement from a financial hardship fund. It’s up to $300 a day. That corresponds to a salary of $75k a year so somebody would be hard pressed to claim hardship with that.

Anyway, as each question was asked and I didn’t have to answer, I grew more and more certain that I would be chosen. There was only one question that I almost answered. They asked if anybody would give less credence to the testimony of a police officer simply because they are a police officer. I was on the fence about answering “yes”. In the end, I didn’t, because it’s more complicated than that… but almost. See, I believe that the police are trained to lie, manipulate evidence, and even manufacture evidence if necessary to win a case. That’s precisely why we have juries in the first place! Juries are there so that normal citizens can keep the power of the police from growing unchecked. The police need to prove their case beyond any reasonable doubt. So it’s not exactly like I don’t believe them — it’s more that I don’t have any reason to believe them unless they prove what they are saying is true.

We had a final break for the day and when we went back (after LOTS of standing around — my back was killing me), they just lumped everybody in the galley area. They then started listing the jurors. Notably, even though they went in order, they didn’t just pick the first 12 or so people. Instead, they ended up getting all the way into the 50s (out of 60) before filling the jury slots so your number had nothing to do with it in the end.

I was picked. I’m a jury for the first time in my life!

Part of me is excited since I’ve always wanted to serve on a jury before. But why did it have to be murder? Couldn’t my first trial be a civil case or a simple robbery or something? Ah well, maybe it won’t be too bad.

Day One: Eye Witnesses

Opening Statements

We started the day at 10:30am. The prosecuting attorney (PA) and defense attorney (DA) both gave their opening statements. After hearing the PA, I’m all “oh, this guy is so obviously guilty! How could the defense possibly say anything to mitigate that?” Then the DA gave his statement and it’s all “oh… I see. This is not a black and white case, after all”

The undisputed facts are these. Gary (elderly white guy) and Juan (40ish Hispanic guy) lived in the same neighborhood, two houses apart. Gary lived there for 10 years and Juan lived there his entire life. They were not friends or enemies or anything — just neighbors. On this day, Gary walked down the street to Juan’s house, stopped in front of it, and exchanged some words with Juan regarding SB1070. After some time, he left and started walking back to his house. Juan and his brother Tony (also 40ish) followed a short distance. They exchanged some more words and Juan kicked at Gary. Gary pulled out a gun and shot Juan in the face, killing him. He then pointed the gun at Tony but didn’t shoot. He then went home. Later, when the police arrived, they surrounded his house and demanded he come out and surrender. Gary came out holding two beer bottles. He drank one; poured half of the other one over his head; and drank the rest of it. He then spun in circles in his driveway until the officers subdue him with pepper spray.

Those are the facts that nobody disputes. Everything else is fair game.

For instance, did Gary shout racial slurs at Juan and Tony (as Tony claims) or did he just “joke around” about going to march in a SB1070 protest? Did Juan actually kick Gary in the groin hard enough to bring him to his knees or did he miss entirely. Did Gary have reason to fear Juan since Juan had previously stabbed somebody (his nephew) in that exact same spot on the sidewalk three years earlier? And more… lots more.

The Eyewitness: Joe Peña

There are three witnesses the first day. The first is Joe Peña, the neighbor in between Juan and Gary. Joe is retired and has lived in that neighborhood for 40 years. He has known Juan since he was a kid and is friendly with Gary. Joe and Gary aren’t “friends”, per se, but they are “friendly and helpful neighbors”. Joe witnessed the shooting. Of all of the witnesses, he is the most consistent.

Joe’s story goes like so. He is inside watching TV when at 1:30, he decides to get the mail. On getting to his screen door, he sees three people on the sidewalk in front of his house. Gary is standing up, holding a gun, and pointing it directly at Juan. Joe notices that there is a third person but doesn’t immediately see that it is Tony. Joe is alarmed and yells “Gary, put the gun down!”. He yells it twice. Gary looks over at Joe and says “He kicked me in the balls. That’s assault”. Gary then turns back to Juan and shoots him in the face. Joe immediately goes back in his house. He calls 911 soon after (but not immediately, Joe says he was in shock right then and may have called somebody else first — he doesn’t remember).

Joe did not see or hear anything that happened prior to that. He also is adamant that Gary is not racist. This is an important point since the whole thing started due to SB1070. Gary’s evidence includes that fact that he, himself, is Hispanic (Mexican) and that Gary has a Hispanic tenant renting a room at his house. At no point has Gary ever said or done anything around Joe that he could interpret as racist.

The Brother: Tony Varela

Tony is the second witness. Tony is Juan’s older brother (out of 12 total kids, all adults) and lives next door to Juan. Juan actually lives with their mother (cares for her) along with his wife and kid and one of their eight sisters. This is Tony’s story: Juan asks Tony to bring their mom to K-Mart to get her monthly supplies and so he does. They arrive back a little after 1pm and Tony notices Gary walking down the street towards them as Tony is backing into the driveway. He initially thinks that Gary is going to Joe’s, as he often does (they work on cars together). Instead, Gary continues on past Tony to where Juan is tending their chile plants. He hears Gary call Juan an “effing wetback” and that “now that the law has passed, you should go back to Mexico”. The PA keeps pressing Tony on the exact words and it’s very difficult to get him to say the curse words aloud. He’s clearly a man who does not swear very often and is obviously embarrassed to be saying it then. Juan gets worked up and tells him to stop disrespecting his family and get out of here. Tony is standing by his car with the car door open, at this point. Gary walks by and calls him a “wetback” as well and repeats that they should go back to Mexico. It may be worth noting that Juan and Tony (and their entire family) are American citizens and, in fact, Juan and Tony were even born in the US. Gary continues walking. At this point, Juan has come out of the yard (there is a chain-link fence around it) and starts towards Gary. Tony tries to stop him, but not very hard. As he said, “I could have stopped him if I really wanted to but I didn’t”. They meet up with Gary a few steps later and Gary turns around.

Tony says that Gary throws some more slurs at them and Juan tries to kick him. He doesn’t connect and his flip-flop flies off of his feet. At this point, Gary says “That’s assault! I can legally kill you now.” and lifts up his shirt showing the gun that he has in a holster. Neither Juan nor Tony were aware of the gun until this point. He points the gun first at Juan, then at Tony, and back and Juan. This is where Joe comes into the story and Tony and Joe’s stories mostly match up. The one mild difference is that Joe insists that Juan and Tony don’t move at all while Tony says he was backing up and trying to get Juan to back out of there as well. He sees Gary shoot his brother in the face.

Gary then points the gun at Tony and asks if he wants to be next. Tony turns his back to Gary (he says that he was sure he was going to die and didn’t want to see the shot that kills him) and says “if you shoot me, you’d better kill me”. Instead, Gary turns around and goes home.

Tony is sure that Juan is dead since he crumpled to the ground so quickly and there was so much blood gushing everywhere. So he ran home and yelled that somebody killed Juan. He got a phone, intending to call 911, but first decided to call “Mark”, one of his brother in laws. Mark was a former police officer (maybe?) but more importantly, Mark had a lot of guns and Tony wanted him there. This, of course, is an important point to consider. Why did Tony first call somebody who “has a lot of guns” to come over before calling the police? Was he intending on revenge?

Tony is adamant that that’s not the case. He says that he felt that needed protection. Basically, they had a neighbor that they’ve known for 10 years just come down out of the blue and for no reason at all, pick a fight and then shoot and kill his brother. It was so senseless that he was afraid that Gary would come back and shoot the other people in his family. They didn’t have any way of defending themselves. As Tony tells his, he is almost sobbing. My heart breaks for him. Regardless of what else he may or may not be saying, I completely believe this part.

After calling Mark, he comes back outside and is about to call 911. He then sees Joe on the phone with 911 and doesn’t. It’s worth noting that Mark does actually arrive before the police and that an ambulance doesn’t arrive until substantially later.

The PA finishes off talking about the earlier stabbing involving Juan. Apparently Juan and one of their nephews got in a big fight three years ago. The nephew was younger and stronger and was having the upper hand in the fight when Juan pulled a knife and stabbed him. The PA lead Tony to tell how Juan was very contrite about that and even plead guilty to assault at the time. That is to say, Juan wasn’t a violent man and can own up to his mistakes. The PA led into this because it’s pretty clear that the defense is going to use this incident to show that Juan was a violent man with a reputation in the neighborhood and Gary had reason to fear for his life. So far, they’ve only insinuated that, though.

Tony comes across as a very religious man (he even administered Last Rites to his brother) and is clearly very upset about all this. Who can blame him? Regardless of whether or not his story isn’t entirely true and even if Gary shot in self defense or not, the key part to him is that somebody murdered his brother right in from of him. That’s seriously rough. It was a very emotional testimony. I had to stifle tears a few times.

Then the DA starts the cross-examination. Tony loathes the DA. You can see it in his eyes and his tone and the fact that he won’t even agree with the simplest little things. Tony denies saying things that he said just a few minutes earlier. The DA comes across as being a gigantic douchbag, though. I instantly dislike him, as well. That shouldn’t matter in the end. Anyway, Tony denies so many things that the PA has to redirect afterwards just to clarify that he really did say certain things and that clearly Tony just misunderstood the DA. The DA didn’t care. His entire purpose was to bring up little allusions to areas where Tony’s story differed in his testimony in court vs his statements to the police (three of them). Again, they haven’t gone into any detail but the implication is that Tony told four different stories — one to each of the three cops and a fourth to the court. Hint, hint… you can’t believe what he says.

The Mother: Paula Varela

The third and final witness of the day was Paula, Juan and Tony’s mom. She was also a direct witness since she was in the car with Tony when they arrived back at the house. I don’t know how old she was but it has to be in the 70s or 80s (at least). She’s ancient looking. They cross-examined her for about an hour. It was painful.

Here’s the deal — she’s an utterly unreliable witness. She contradicts herself several times on the stand and even the PA acknowledges that she told everybody wildly different stories on what happened. I’m not even going to recount the story she gave this time because, honestly, I don’t know that I can believe any part of it. She keeps going back to being in “shock”… and I completely believe that. She can’t and doesn’t hide her grief at seeing her youngest son shot in the face and killed. She has a difficult time answering questions, even. She kept jumping right to the fact that that man (she doesn’t think of him as Gary; she refers him as “the guy that lives in Mr White’s old house”) just pulled out a gun and murdered her son. She doesn’t care what happened before that; what Gary may or may not have said; and what Juan may or may not have done. I felt so sorry for her. It’s bad enough that a mother has to learn of a son being murdered… but to watch in happen in front of her eyes? Oof. I wanted so much to go give her a big hug.

Still, it almost doesn’t matter from the trial’s perspective. She may be ultra-sympathetic but she’s far too unreliable to believe anything she said about the sequence of events. Therefore, I’m going to have to completely disregard her testimony.

The cross-examination of Paula ended early so we ended for the day at about 3:45.

I was in a pretty dark place at the end of the day. It may well turn out that the shooting was justified (still five days to go) but one thing is inescapable. Juan was a beloved brother and son and his murder was a traumatic shock to his entire family. And that played out right before my eyes. 🙁

Day Two: The Police

The second day had nine or ten witnesses, all either police officers or part of the police process. There were no less than three Crime Scene Specialists, for instance. Those are civilian employees of the police department that work in their crime lab.

To be blunt, this almost seemed like a waste of a day. They got into so much minutiae at every point. Who said what? Exactly what did Gary do when it came out of the house. What was the placement of the flip flops. Are you sure that the evidence was not tampered with at every step. On and on and on and on.

But here’s the deal — nobody disputes what happened after the shooting. Even the defense came out right up front and admitted that Gary shot Juan. So why spend almost a half hour talking to a DNA expert about how to determine if DNA is on a gun only to conclude that there wasn’t enough to make a positive identification. That is, we learned that Juan’s DNA certainly wasn’t on the gun but Gary’s may or may not have been (inconclusive). So what? Nobody ever suggested that Juan touched the gun.

There was some time spent on Gary’s behavior just prior to his arrest. This came up in the opening statements but was really fleshed out by the police officers. I mentioned already the beer and the like. According to the police, Gary was clearly not co-operating. The DA kept asking questions implying that the situation was too confusing for Gary with multiple officers yelling (possibly contradictory) orders and that he did want to comply, but didn’t know how. For instance, they made nearly every officer admit that Gary never actually walked back towards the house (even though one officer described him as “pirouetting” or “dancing” in the driveway).

Other things that the DA made sure to point out… They asked everybody if they observed that Gary’s groin was injured (from the kick) and everybody insisted that he never said anything about it at all. They made sure to show photos of Gary’s office/den where he had quite a few pictures of a Hispanic family, all smiling. The photos weren’t hidden or anything, either… they were all over a prominent calendar. They didn’t say who was in the photos but I’m guessing it was his tenant’s family. I’m sure that’ll come up during the defense’s turn. Obviously, they want to show that Gary wasn’t racist at all.

I was somewhat interested in one bit of testimony where a witness demonstrated how they perform a gunshot residue test. I hadn’t known that. Yes, he tested positive, but it’s utterly besides the point for this case. (Final edit: Yes, this did matter in the end)

And that’s the key… at the core, this trial comes down to one core element; did Gary have reason to believe that his life was in danger and was justified in using deadly force to stop Juan? The elements about race do come into play but I can’t see how the evidence gathering procedure matters at all. I was curious if he was already drunk (what with the beer and all) but since multiple officers all claimed that they didn’t get the impression that he was intoxicated and the prosecution isn’t going down that path at all, I’m going to assume he wasn’t. (Final edit: he was drunk, after all — they don’t prove it until later).

Oh, there was one interesting part of the day! Maybe five minutes before lunch, the fire alarm went off. The judge thought that it was just a drill, but as we were walking down the (NINE STORIES of) stairs, it became clear that something was up. There was a lot of very official looking people scurrying about and fire trucks outside. I heard rumors later that there was an actual fire (or “smoldering”) on the roof. I didn’t hear anything official, though, and couldn’t see anything on the news about it. That did mean that I couldn’t go to the cafeteria so I just walked around downtown Phoenix until I found a Baja Fresh and ate there.

All in all, today was far less emotionally draining but a lot harder to stay awake.

We break until next Monday.

Day Three: Gary Speaks

Prosecution Rests

We resumed on Monday to pretty much the same thing we ended up with on Wednesday — Forensic Scientists. The first guy did the analysis of the gun shot residue (GSR) and concluded that Gary did fire the weapon. Uh.. right. The defense freely admitted that Gary shot Juan. Why drag out the trial “proving” that he fired a weapon? And then the next guy was the firearms specialist who testified that the gun was in perfect working order (no misfire). His testimony was almost as pointless as the previous one (again, nobody disputes that Gary pulled the trigger). The one almost interesting point was his description of ‘single action’ vs ‘double action’ firing. I was thinking that maybe the prosecution was going down the path that it took more effort to do a ‘double action’ shot and since that’s how Gary was described as shooting, that clearly he wasn’t doing it in a rush. But they didn’t ask the expert anything about that. Handily, somebody from the jury did… and the guy basically said that neither way of shooting is easier or harder than the other (it’s a personal preference) and besides, he can’t tell which method was used with his tests.

The prosecution called their final witness; Detective Udd, the case supervisor. This is the detective that controls the investigation. Honestly, he didn’t give much more info than what had already been covered. One bit of interesting info; Udd said that Gary was clearly intoxicated. His eyes were bloodshot, his speech was slurred, and his sweat smelled strongly of alcohol. That’s curious since the other officers didn’t have any real opinion on that. Perhaps it was because he was the first to spend a significant amount of time with Gary? Or because he was the first to try to notice something like that?

The defense kept hounding on the possibility of genital injury. After all, they claim that Juan solidly kicked Gary in the groin with enough effort to bring Gary to his knees. Udd insisted that Gary never mentioned it nor asked for medical assistance. They showed a screen capture of a interview room video where Gary was naked (changing out of his clothes, which were being impounded as evidence) and showed how there wasn’t enough resolution to see if there was bruising in the groin area or not.

They also asked if Udd considered Gary and Juan’s neighborhood to be a “bad neighborhood”. Udd said that it was. Apparently there is quite a bit of crime, prostitution, drugs, etc around there.

I asked if they had performed a blood alcohol test on Gary and if the results had shown that he was drunk. They asked the first question (answer: yes, they had) but didn’t ask the second. Apparently they can’t admit that as evidence? I wonder why. (Final edit: they address this in lots of detail, later)

After this, the prosecution rested and the defense started calling their witnesses.

Defense Witnesses

The first several, curiously, were all police officers associated with the case. Specifically, they were all the first officers that talked with Tony and Paula. It didn’t take long to see where the defense was going with them. See, Tony and Paula both told very different stories to the first responders than they did later on in more in-depth interviews and even more during court testimony. I wasn’t surprised about Paula’s inconsistent testimony since, well, I didn’t believe much of what she said anyway. Still, it was very curious how Tony’s story differed on the scene vs in court. Originally, his Mom was in the house and he was unloading the groceries when this all went down. Later, he and his Mom had just arrived in the car and were still in the car when it all started. Originally, Juan’s kick completely missed Gary. Later, Juan’s kick “grazed” Gary’s leg.

They also talked with the officer that interviewed Joe. Remember how Joe testified that Gary turned to him and said “He kicked me in the balls. That’s assault” just before shooting Juan? Apparently when he was first interviewed, Joe said that Gary told him that after the shooting. Huh. Curious.

Gary’s Story

Then, they called Gary to the stand! I almost fell out of my seat. I was sure, based on their opening statements, that Gary was not going to testify. I wonder if they changed their minds or if he was always scheduled to testify.

They started with the “racist” angle. They showed the pictures of the Hispanic family that Gary had posted in his office. That’s the one that I earlier thought must be of his tenant’s family. Turns out, it’s not. It’s his daughter’s family! Apparently his ex-wife is Hispanic (married to her twice) and so his kids are Hispanic, his son-in-law is, and his grandkids are. Honestly, it’s really looking like the “racist” angle is just out of the question.

Gary started talking about the day, from his perspective. He works (freelance) construction with his son and originally got ready to work. His son called and said there was no work, so he figured that he would just relax for the day. Most of the morning, he was hanging out with a neighbor while they talked about gardening and other stuff. He drank three beers in this time.

At about 1pm, he was in his front yard cleaning up when he saw Tony drive by with his mom and sister. He said that the mom (Paula) and the sister both waved to him and he waved back. Gary called the sister “Adrienne” but her name is really “Andrea”. The prosecution made sure to bring that up to show that he really didn’t know that family very well. The real zinger in this, though, was the fact that they drove by at all. See, Tony and Paula’s testimony both insisted that they drove North to their home… they would have had to be driving South to go past Gary’s house. This is the first testimony that directly contradicts previous testimony. As in, one of these people is lying. The PA had a good point — if K-Mart is on Baseline and Baseline is South of where they live, then why would Tony be coming from the North? It doesn’t make sense. Unless… well, if Tony is lying about the direction he drove, then he could also be lying about where they went. At this point, though, it seems more likely that Gary is being less than truthful, here.

He decided to walk down to their house to chat. Tony and Paula had previously testified that Gary never really talked with them before. Gary insists that he absolutely had, on occasion. In any event, he stressed that he was just going for a neighborly chat.

He saw Juan tending his chili plants and said “Hey, how’s it going?” Juan didn’t answer. Gary continued “Have you gone to a march yet or are you going to one later?” This is in reference to the SB1070 protests following the passage of the bill the day before. Juan is instantly furious and starts yelling and cursing at Gary. Tony was unloading groceries at the time but stops what he’s doing and comes over. Tony tells Juan, “Get this guy the fuck out of here.”

Notably, this testimony conflicts with Tony’s testimony in that Tony claimed he was standing by his car the entire time. Maybe worth noting: Paula’s initial interview at the scene claims that Tony was unloading the groceries.

Also, I don’t know how much I believe this if only because of the language. On the stand, Tony was having a very tough time saying the F-word… he kept saying “freaking” until the prosecutor insisted that he say the actual word. That felt very “real” to me.

Anyway, Gary “feels unwelcome” and starts heading back. Juan and Tony follow him back. Juan starts yelling that he’s going to kill Gary.

Now Gary knows that Juan was dangerous because he was around during the time of the stabbing. He didn’t witness the actual stabbing, but he saw the aftermath (police cars, ambulance, guy in stretcher). Plus, it was common knowledge in the neighborhood. Gary also knows that the exact place where Juan stabbed his nephew was right where Gary was standing. He is absolutely convinced that Juan and Tony intend to kill him. So he turns around to make sure that Juan can’t stab him in the back.

As soon as he turns around, Juan kicks him hard in the groin. The kick is hard enough to drive Gary to one knee. Specifically, Gary goes down on his “left knee” and supports himself with his “left hand”. Was Juan wearing flip-flops when he kicked? Gary doesn’t recall (he was). Gary is sure that not only are Juan and Tony going to kill him, but that this brutal kick was the start of it. He stands up, drawing his gun with his right hand in one fluid motion, and shoots Juan as he finishes standing.

Gary pointed the gun at Tony to ensure that he wasn’t going to do anything and then turns around and goes home. He’s all shook up and needs some vodka to calm his nerves. He meant to call 911 to report that he had to defend himself but couldn’t find his phone. He pours himself six shots of vodka and slams them. He also holds a cold beer bottle on his groin as an ice pack. He was switching beers to use as an ice pack as the police arrived. That’s why he had two beers in his hand.

He drank one as he went out the door. The other, he dumped onto the lawn. Gary is emphatic that he did not dump it on his head. Rather, he was emptying the beer next to the garbage can that he keeps out there. He was then jumped on by the police officers even though he was clearly co-operating!

The Cavalcade of Lies

After this, the PA got her turn to cross-examine Gary and she just rips into him. Gary’s demeanor in this questioning is one of casual arrogance. He slouches back in his chair with a perpetual sneer on his face. He also calls the PA “Heather” several times (as in “Heather, we already covered this before!”) until the Judge sternly reprimands him.

The PA presses the issue about the direction that Tony’s car traveled. All three people in the car (including Andrea, who didn’t testify) said that it drove up from the South and the K-Mart was South of them. So how could they possibly drive past his house? Gary has no answer to that. It definitely seems like a lie on his part.

The PA then starts asking about the fact that Gary specified “left knee” and “left hand” when he was knocked down. I’ll admit that I thought that that was an awfully specific detail. Details that specific are often indicators of lying. But the PA went down an odd route of questioning that I didn’t understand, at first. She was saying that if he really did go down on his left knee and left hand, then why wouldn’t there be dirt or scuff marks on his hand and knee. Eh? Why would there be? You can easily go down on one knee and not have any dirt or scuff marks on them. But that’s not what Gary said! No, Gary insisted that there were scuff marks! Now this is getting interesting. Why would you answer like that unless you were making it up as you go? The PA made a big show of displaying pictures of Gary’s hands and knees and asked him where the dirt was. Gary was all triumphant when he saw the picture of his knees and proudly pointed how the scuff marks on his knee. But oops! That was his right knee, not his left knee!

Oh, but this isn’t done! The PA presses the issue and again asks why there are no marks on his hands. Gary says “because I washed them”. The PA was visibly stunned by that answer but recovered quickly. She brings up how he never, in any previous interview or testimony, mentioned washing his hands. Gary claims that he obviously did. So the PA brings him his testimony from a previous hearing (grand jury testimony, perhaps? or was there a previous trial?) and asks him to point out where he said that. Gary starts getting flustered. The PA then brings the hammer down and reminds everybody how the forensic scientists found gunshot residue on Gary’s hands. She further reminded us of how the scientist testified how easy it was to lose gunshot residue — even just wiping your hands together could do it. The PA concludes that since Gary had residue on his hands, that meant that he physically couldn’t have washed them. It’s pretty damning testimony and it could not be more clear that Gary is blatantly lying.

During jury question time, I just had to ask this: “When did you wash your hands? Before or after you drank the six shots of vodka?” Gary’s answer? “Both before and after” Wow!! Wow. I almost burst out laughing at that reply. How delusional would you have to be to answer like that? Wow.

The PA continues her attack. She reminds Gary that he had testified that he and Juan were 2-3 feet apart when Juan kicked him (makes sense). One of the CSI dudes earlier testified that they were 2-3 feet apart when Juan was shot. Therefore, that meant that Juan and Tony were clearly not advancing on him and were, in fact, standing still in between the time of the kick and the shooting. So how could he keep saying that they were advancing on him?

Gary insists that they were advancing on him and that the reason that distance stayed at 2-3 feet was because he jumped back when he got to his feet. The PA is, again, incredulous. This is another bit of testimony that never came up in any previous interview or hearing. Gary again insists that he said that before but won’t show where in his previous testimony. Oh, and after he shot Juan, Tony didn’t turn around. No, Tony kept coming at Gary and saying how he would kill him if he got his hands on him. Gary kept backing up and told Tony to “back off” before Tony finally does. Wait… “backing up”? Since when? Gary not only never said anything about “backing up” in previous testimony but he also didn’t say anything about that in his testimony just a few minutes ago! Plus, this directly contradicts Joe’s testimony — the only independent eye-witness. Man, this guy is just digging himself a deeper and deeper hole.

But the PA still doesn’t let up. Now she’s asking him about the vodka he claimed to drink after getting back home. How big were those shots? Gary points to a styrofoam coffee cup on the witness stand and says its about 2/3 of that. So about 5 or 6 oz each? “Yes.” Six of them? “Yes.” In less than four minutes? “Yes.” But wait, six 5-6oz shots is 30-36oz total… that’s a full quart or more of 80 proof vodka! A quart? In just a couple of minutes?

And what about his assertion that he dumped the beer on the lawn and not over his head. Is he calling all four police officers that witnessed this from four different angles all liars? Gary doesn’t quite go that far, but he still insists that he didn’t dump it over his head. He finally brings up a good point — if he did dump it over his head, then why didn’t they test for beer on his shirt? Good question.

The next line of questions was about the gun. This line of questioning wasn’t trying to get any new info… I think the PA was just giving Gary more opportunities to dig himself more holes, if he was so inclined. He didn’t really bite. For instance, she brought up how when he bought the gun five years ago, he put a Glendale address as his home address… even though he claimed to live on Montezuma for ten years now. Gary insisted that he was living in both places at the time, splitting his time between the two residences. I didn’t see any reason to disbelieve that and, besides, it doesn’t matter. He didn’t obviously lie about it, anyway.

The final part concerned his assertion that he not only carried the gun everywhere but even slept with it, since he was so scared of his neighborhood. The PA stressed how nobody can ever remember seeing him carry the gun before, much less all the time. Gary had a good point that nobody saw him carry it that day, either, until he used it. He puts it under his shirt where nobody could see it. It seems unlikely that Joe would never have seen it if he really did carry it all the time since they work on cars together… but maybe that’s just hyperbole, rather than an actual lie. The PA makes an offhand reference to not having it 1.5 years of the 5… which makes me wonder if he had it taken away for some amount of time. They don’t follow up on that, though.

Gary is the last witness of the day.

Man, was that a train wreck, though. It’s rare that you see someone blatantly lying like that. I mean, he had to have been just making things up on the fly. Wow.

Day Four: Closing Arguments

Really Really Drunk

Tuesday’s testimony is all witnesseses called by the prosecution. I thought that they “rested their case”. Odd. Anyhow, they start with some random police officer that supervised him as he changed out of his street clothes into jail garb. This was clearly in response to the defense’s assertion that the previous screen grab of a naked Gary didn’t have enough resolution to show any trauma to his genitals. So they ask this officer if he noticed anything. He said that he couldn’t remember. The defense asked him if was staring at Gary’s genitals or not. “No!” “It’s kind of a guy code thing, right? You don’t stare at another man’s groin?” “Yes”

Right. I don’t get this insistence on checking out his balls. You can get kicked hard enough in the balls to knock you down and not have any obvious swelling or trauma to that area.

What I’m curious about has to do with Gary’s assertion yesterday that he didn’t pour beer on his hair. I ask if that officer noticed any beer on Gary’s clothes or hair. He doesn’t remember at all. Basically, this officer doesn’t remember anything about that day — Gary was just another prisoner that he was assigned to supervise. I have no idea why they called him to the stand.

The next guy is a forensic scientist (another one). This is the guy who did the blood alcohol testing. He is off the charts long-winded and verbose. He goes on and on and on. But, honestly, it was very interesting, too. I learned quite a bit about how that all works. The guy is clearly an Unquestionable Expert(tm), too. He just gave off that air. Plus, they were asking him to do all these calculations on BAC (blood alcohol content) and he did a bunch on the fly using his trusty calculator. He was equally “professorial” to both the prosecution and defense alike. I like this guy.

Anyway, we find out that he tested Gary’s BAC at 8:40pm. This is 7.5 hours after the shooting. It was 0.086. That’s legally drunk and that’s after 7.5 hours later! He explains that this is the equivalent of 4 “standard drinks”. A “standard drink” is 1/2 oz of alcohol. By way of comparison, that’s one can of beer or a 4 oz glass of wine or a 1.5 oz shot of vodka.

So if he was that drunk so much later, then how drunk was he at the time of the shooting? The guy does some numbers (and explains in infinite detail about his assumptions) and comes up with a range of 0.12 to 0.28. Yikes. That’s nearly 30% BAC. It’s the equivalent of around 14 standard drinks.

And now I’m understanding why Gary was telling the story about drinking that much vodka. He was saying that he got drunk after the shooting, not before. After all, if he was drunk during the shooting, then how could we trust his testimony? I mean, we didn’t anyway… but I follow his reasoning now.

The next questions concern that mythical 30oz of vodka in 4 minutes. First, how many standard drinks is that? Calculating… 24. Is it physically possible for Gary to have downed that much vodka at 1:17pm and have a BAC of 0.086 at 8:40pm? No, not even close. He could not have had more than 14 standard drinks — roughly half as much as Gary claimed. Also, is it physically possible to drink that much vodka in 4 minutes? Not typically. The human body has a gag reflex and will vomit up the alcohol if that much is ingested in that short of a period of time. So basically more confirmation that Gary was completely lying about how much vodka he drank after getting back.

The defense didn’t have very many questions. They had him calculate a bunch of BACs for different times, but I think it was all just trying to confuse both him and the jury. It didn’t work. The one thing that they did ask that mattered was this; was it possible to determine how drunk Gary was before 1:17? “No.” Oh, and if Gary drank three beers between 9am and noon, would they still be affecting him at 1pm? “No.”

Typical Police Answer

They then called Detective Udd back on the stand. Mostly they were asking him irrelevant stuff that I don’t remember at all. I think they mostly wanted him back on the stand so they could show a photo of Gary’s kitchen. This is the one that shows the gun on a very messy counter. Apparently two feet away in plain view, in a charging station, was Gary’s cellphone. So when Gary said that he wanted to call 911 but couldn’t find his cellphone… well, it was less than two feet away from where he put the gun down, in his normal charging location. Yeah, I can see what they are saying. On the other hand, it is an incredibly messy kitchen and since he was drunk, I could maybe see how it wouldn’t notice it.

Here was another chance to verify or dispute Gary’s assertion that he didn’t dump the beer on his hair. I ask Detective Udd if he saw beer in Gary’s hair. His answer was so typical of a police answer and it’s exactly why I don’t fundamentally trust them (see above). He says “Yes, I know there was beer in his hair due to the reports of the officers that witnessed him pouring it in his hair.” Eh? That’s not at all what I asked. I asked if he directly observed it. To their credit, the defense correctly picked up on this and stressed that the question was if he personally observed the beer in Gary’s hair. Udd kept insisting that he knew it was there because of the reports.

Oh man, that is so typical of a police officer. Udd was genuinely mystified by that line of questioning but it would never in a million years occur to him that he couldn’t 100% trust the word of his colleagues. After all, if another officer said that Gary poured beer on his hair, then why would Udd even need to check that? It’s obviously true.

I am left with the unanswered question — did anybody actually verify that there was beer in his hair after the fact?

Closing Arguments

We left for lunch and when we got back, it was time for closing arguments.

Honestly, the closing arguments were pretty much the same as the opening arguments only using a few bits of info from the trial. The PA gist was that this wasn’t at all justified. Also, we can’t believe a word of what Gary said due to him contradicting himself, contradicting eye witnesses, and even contradicting physical evidence. He can’t claim self defense because that requires being attacked with a deadly weapon and a simple kick isn’t a threat to Gary’s life. She shows a cartoon of a little girl kicking a man in the balls. Er… that’s a pretty flippant attitude. First of all, it wasn’t a kick from a little girl — it was from a grown man. Second, there were two people facing Gary and one was known to have stabbed somebody before. Plus, if Gary’s testimony was true, then they were threatening to kill him. So it’s not just a simple case of “a kick isn’t a threat to his life”. Mind you, it’s not far from that, though. The PA then brings up the whole “washing his hands” debacle. Why would he say such an obvious lie? Why lie about the vodka? Why lie about the direction Tony drove? Why lie about shooting right after standing up? Why lie about “backing up”?

Also, if Gary “knew” that Juan was violent and deadly, then why did Gary go down to talk with him about the most controversial subject of the day? That just doesn’t make sense (I agree). She goes on and on.

She ends with how Gary just got “all liquored up and went down the block to start a fight”. Honestly, she comes across and being a bit… I dunno, maybe arrogant? Flippant. Whatever.

The defense doesn’t go anywhere near as long as the prosecution. They bring up multiple inconsistencies in both Tony and Paula’s testimony between the initial police interviews and their testimony. I agree that Paula’s testimony is worthless. Tony’s, though, seems pretty solid. The inconsistencies seem more like those things that you’d forget about over time rather than outright lies. They mention how Joe’s testimony mildly changed between the interview and the stand (regarding exactly when Gary said “they kicked me in the balls”) but they don’t at all question the main thrust of his testimony. They then suggest that if Juan had just let Gary go, that he would still be alive today. Are they serious? Did they just blame Juan for his own death? Gah!

Then they bring up something about Tony’s testimony that hadn’t occurred to me. Tony had said that Gary cocked the gun again, after shooting Juan, before pointing it at him. Except that cocking the gun in single action mode will automatically rotate the cylinder. The photos taken of the gun clearly show that the spent/fired casing was still in the firing position. That is, Gary clearly only cocked the trigger once. So obviously Gary felt that his life was in danger and made a split second decision to defend himself.

The prosecution redirect was short. They are aghast that the DA would suggest that this was Juan’s fault. They also explain that even though Tony and Paula’s testimony wasn’t 100% consistent, it was consistent in every part that actually mattered. Gary, meanwhile, consistently lied.

Judge Brnovich then reads the jury instructions. They are pretty long. In short, we are to determine if he is guilty of Second Degree Murder and Aggravated Assault. If he wasn’t reckless enough, then we could convict him of Manslaughter (murder with less “culpable recklessness”).

The court clerk then draws two numbers out of a little box to choose the two alternates. I’m really hoping that I’m not one of them… and I’m not. They are numbers 8 and 10. Both are dismissed. The rest are told to return the next day for jury deliberations.

Day Five: Judgment Day

Second Degree Murder

We started our deliberation at 10:30am. The rules were that all 12 of us had to be in the room to discuss the trial at all. If anybody else (bailiff, judge’s assistant) was there, then all discussion needed to stop. The first order of business was selecting a foreperson. Most of the people didn’t want anything to do with that but three of us volunteered. One of the guys was the clear choice, though, so immediately after he threw his hat in the ring, the other two of us simultaneously withdrew. He said something about “doing stuff like this for a living” but he didn’t need to say that — it was pretty obvious.

We started out by reading the exact charges. After, we did an initial secret ballet to gauge just where we were at. The first count was 6 Guilty, 3 Not Guilty, 3 Undecided. The foreman asked who wanted to start and being the opinionated bigmouth that I am, of course I did.

Here’s roughly what I said:

Pretty much every one of my idle thoughts in every waking minute since the trial started has been about the trial. I keep going down one route and then flip-flopping and going down another. In the end, though, I realized that 99% of the testimony and evidence presented in the trial didn’t really matter. That is, they don’t directly factor into a Guilty or Not Guilty verdict. Maybe Gary spewed hateful comments; maybe he didn’t. Maybe Juan threatened to kill Gary; or maybe not. Maybe Juan kicked at Gary or maybe he kicked hard enough to drive him to his knees. None of that really comes into play. What really matters is that the only testimony that was entirely believable was from the very first witness – Joe, Gary’s friend and the only uninvolved witness. His testimony was rock-solid and I believed all of it. So rather than obsess about all of the details, I only care about a timespan of a few seconds — from the time that Gary starts pulling his gun out to the time when Gary pulls the trigger. That’s the only part that matters!

And with that, we were off to the races. Everybody (at least everybody that was willing to talk; there were a couple of quiet jurors) agreed that that’s the part that we needed to discuss. We all pretty much agreed up front that by shooting Juan in the face, he was clearly guilty of Second Degree Murder. The sticking point was whether or not the shooting was justified by self defense.

The argument “for” self defense was that the prosecution was being very flippant about claiming that “a kick to the groin isn’t deadly physical force” (and showing a cartoon of a little girl kicking a grown man in the balls!). That was over the top and so clearly not what we were talking about. If Gary was telling the truth that both Juan and Tony were advancing on him and threatening to kill him AND Juan kicked him hard enough to bring him to his knees, then it’s entirely reasonable for Gary to fear for this life. There wasn’t much argument on this point.

In fact, the consensus (don’t know if it was unanimous) was that Gary was fully justified in pulling out his gun in this situation! He could conceivably fear for his life and so pulling a gun is a quick and effective way to end the entire situation.

But that’s sort of where it ends. At one point, this is what I said:

Let’s say for argument’s sake that we don’t believe Tony’s testimony at all and we believe Gary’s testimony in all cases that don’t conflict with Joe’s testimony. Joe’s testimony is, of course, the undisputed gold standard. In this version of events, Gary was innocently asking about SB1070 and got over his head. Juan massively overreacted and went after Gary with Tony, threatening to kill him. When Gary turned around, he was kicked hard enough to drive him to his knees. As he got up, he pulled his gun. In this scenario, Gary is fully justified in pulling his gun right now. But this is where Joe comes into the picture. Now we know that Gary is standing fully upright and pointing his gun in Juan’s face. Juan and Tony aren’t moving at all, much less advancing on Gary. In this split second, any threat that Juan and Tony presented to Gary disappeared. As the guy with the gun, Gary was in 100% control of the situation and had all of the power. If Gary immediately pulled the trigger, then maybe we could still see self defense in the sense that it happened so fast that he couldn’t process that the situation had changed. But he didn’t. We know from Joe’s testimony that Gary held the gun on Juan long enough for Joe to shout out “Gary, drop the gun!” at least once (and probably twice) and for Gary to turn and at least look at Joe (and maybe say something to him). That means that Gary was standing there with the gun, completely in control of the situation, for at least 3 or 4 seconds. And then he shot Juan. Juan wasn’t lunging at him; Juan wasn’t trying to kill him; Juan wasn’t any threat at all — and Gary killed him anyway. That’s not self defense — that’s murder. And that the core of this, for me. Even assuming that Gary’s story was true (and it wasn’t — we all know he is a habitual liar), it still wasn’t self defense. He’s guilty.

At some point, we did another round of voting and the count was 10 Guilty, 2 Undecided. We asked if the two undecided folks would identify themselves so that they could direct our discussion to the points that were still unclear to them… but they remained silent. That was really frustrating. For at least 30 minutes, we were discussing various aspects of the case that at least 10 of us already agreed with… but had no way of knowing if this was helping the other two make a decision or not. I’m a big believer in the right to anonymity in a jury (even if I don’t want it for myself) but I can’t say I was happy about it right then.

We were going to break for lunch at noon but before going, we decided to done one more vote. This time, it was 12 Guilty. Done.


We had one book-keeping item to take care of, then. We had to answer the question “is this offense a dangerous offense?” A “dangerous offense” is a crime involving a gun. Er… why even ask the question? If we’re saying that he murdered a man with a gun, then how could it not be “dangerous”? Weird question.

We went for an hour lunch.

Aggravated Assault

After lunch, we tackled Aggravated Assault. This was, oddly enough, a harder question to answer than the Murder charge. Several (most?) of us changed our positions between Guilty and Not Guilty multiple times in the next couple of hours. People who were solidly in one camp to start, ended up on the fence. The core problem was the disconnect between what the law said and what was “right”. That is, it didn’t seem “fair” to charge Gary with Aggravated Assault in addition to the Murder charge.

Let’s see if I can explain this. We’re at the moment in time where Gary has just finished pulling the trigger and is still pointing the gun at Juan. What is the normal or reasonable thing to do at this point? Well, it would be to point the gun at Tony, to make sure that he’s not going to do anything. Really, what else could Gary do? He points the gun at Tony; sees that Tony isn’t going to attack; and turns around and leaves. This is exactly what happened.

But being on a jury isn’t about being reasonable, it’s about deciding the case strictly on the law. The law has nothing to do with being reasonable.

The definition we were working with said that it was Aggravated Assault if the victim (Tony) had good reason to fear for his life based on Gary using a deadly weapon. Pointing a gun at a person is automatically Aggravated Assault even if the gun isn’t loaded. That’s because the victim still has good reason to fear for his life, since he doesn’t necessarily know it wasn’t loaded. In this case, Tony just saw Gary murder his brother using that gun and now that gun is pointing at him. Do you think he feared for his life?

Right. There’s no question that he did. But what about self defense? Isn’t Gary using self defense by pointing the gun at Tony after shooting his brother? After all, maybe Tony could try to attack in revenge. Well, again, it comes down to the legal definition of self defense. That says that Gary would need to be actively being attacked. We already established in the murder charge that Gary wasn’t in a self defense mode anymore so how could it be self defense now? It can’t. Gary was in no more danger after pulling the trigger than he was before. In fact, he was likely in less danger, having demonstrated his power.

We talked about that quite a bit. If we go back to right after Juan kicked at Gary and Gary pulled the gun, technically speaking, that moment was Aggravated Assault. However, we could have been persuaded that Gary was acting in self defense at that point and was controlling the situation, more than assaulting them. But he didn’t stop there. By pulling the trigger, erased any hope of using self defense as a defense.

The way I thought of it was that the Murder and Assault charges were “stacked charges”. That is, since there were two victims, it was legally impossible to be guilty of one of them and not the other. They are two faces to the same act. In fact, one juror mentioned that she considered Gary guilty of Aggravated Assault the instant he shot Juan. That is, even if he never pointed it back at Tony, Tony would still have a very reasonable fear of his life. I can’t argue with that.

So we were all on board with the fact that Gary was Guilty from a legal perspective pretty early on. The key point of contention was whether or not that was “right”. That is, since he was Guilty automatically due to the first crime, then why charge him with two crimes at all? I finally switched my vote to Guilty because, well, it’s not up the jury to decide what charges to file and what charges are “right vs wrong”. Well… juries can do that — it’s called Jury Nullification — but it’s not appropriate in this case. We needed to follow the law and the law said he was Guilty.

So that was that. He was Guilty on both counts and it was Dangerous in both cases. Done.

We all felt a huge sense of relief that we were done. We called the bailiff and he started gathering up everybody to come to court. This took maybe 30 minutes. In the meantime, we just talked about other aspects of the case that didn’t have any real impact on our verdict (personalities, random facts, etc).

We filed into the courtroom and our foreman handed over our verdicts. The court clerk read off the verdicts, then, while I watched the families. Gary and his supporters were completely emotionless. The Varelas and supporters looked massively relieved with lots of quiet crying and the like. We were so glad we were done.

Kicking a Puppy

But wait!

Judge Brnovich said that she had another question she needed to have the jury decide on but needed to talk with the lawyers first. So we filed back to the deliberation room, all mystified as to what might be going on. Even the people who had been on juries before didn’t know what was happening. When we were finally called back to the courtroom, we were told that we needed to decide if the crimes happened under aggravated circumstances or not. There were two possible aggravating circumstances. The first is if the crimes caused physical, financial, or emotional harm to the victim or the victim’s next of kin. The second was if the crime happened due to the race of the victim. He we felt that either was “proven”, then the Judge has more leeway to use a harsher sentence.

Then they brought out witnesses. There were two of them — Juan’s sister and Tony. Both testified about how hard it was now that Juan was gone.

Are you kidding me?! How could your brother/son/father being murdered not have a significant emotional harm to the family? Bring his sister and Tony back up to testify was like kicking innocent puppies and making us watch. That was rough.

We filed back into the deliberation room and spent the first few minutes complaining about how ridiculous this all was. It was just a way of piling on somebody that was already down. We didn’t even do a secret ballot for these. The “emotional harm” charge was so obvious that we were all “yes” by show of hands right up front. The racial aspect did require a little bit of discussion. In the end, though, we came to the consensus that while the old sordid incident may or may not have been triggered on racial grounds (and there’s no concrete proof that it was), the actual crimes of murder and assault were not race based. That is, Gary didn’t pull the trigger because Juan was Hispanic. So that one was “not proven” for both charges.

Really, the prosecution spent a decent amount of time trying to say that this was a racial offense — we just didn’t see that. This was simply a case of a very drunk guy committing a tragic act while drunk.

We filed back and rendered our final verdicts. Judge Brnovich thanked us for our time and said that even though she couldn’t speak with us informally since she still had to sentence Gary, that the lawyers would like to chat with anybody on the jury that wanted to.

A chance to speak my opinions some more? Sign me up!

Talking to the Lawyers

The lawyers mostly wanted to know how the discussions went. As in, what was the initial split and what brought us to our final verdicts. Then they asked if we had any questions for them, and we had a few. Like, did the defense attorneys prepare Gary for testimony at all, considering how terribly that went? They just shook their heads ruefully. Apparently they had extensively prepped him but he just decided on the stand to ignore all of their practice and just make stuff up as he went. They knew it was a train-wreck and couldn’t do anything to stop it. We also wondered if this had gone to trial before. Yep. The first trial was in January and it ended in a hung jury. That explains the “Heather, we’ve gone over this before” comments when Gary was being snarky to the prosecutor.

I also asked them if they knew why we couldn’t keep our notes! Yep, all of our notes were to be incinerated afterwards and we were forbidden to bring them with us. Why? The bailiff and court assistant didn’t know and neither did any of the four lawyers. They just knew that that’s the way it was but no clue as to why. Huh.

Oh, and why did they spend so much tedious time “proving” that they had the murder weapon and that it was Gary’s, when Gary admitted that it was his and he shot Juan? It seems that they must prove all elements of their case independently of what the defense does. That is, say the defense said that Gary would confess and so the prosecution decided not to prove that he was the shooter. Well, if the defense realized this, then they could simply not have Gary testify and from the jury’s perspective, we wouldn’t be able to assume that he was the shooter at all! So them spending all that time proving a “known fact” was necessary to ensure that it was, indeed, a known fact. Interesting.

Arizona Republic

The last three of us were in the lobby, waiting for the elevator, when a reporter from the Arizona Republic came up and asked if we wanted to answer some questions. The other two declined but, again, a chance to open my big mouth? Sure! The reporter clearly hadn’t followed the case very well (or at all?) so he asked a bunch of basic questions. He clearly was angling to have me say it was racially based, though. I didn’t take the bait. That said, my quote was that “We didn’t necessarily think it was racially motivated”, which wasn’t quite as strong as what I was overall saying. At another point, I told him that we found no evidence of any racism at all.. but, of course, that wasn’t part of their story.

The story: Neighbor found guilty in man’s shooting death.

Driving home was somewhat surreal. It felt like this massive weight had been lifted off of my shoulders.



The Hung Juror

After the trial, I was allowed to research this case all I wanted and so I went nuts. It turns out that this was all over the news and blogs when it happened. In retrospect, I vaguely remember that. All of the news centered on it being a SB1070 killing or a “hate crime” or the like. It was simply not. There was also a decent bit of press when the first trial ended in a mistrial. Curiously, there was only one article about this trial (and conviction). Huh.

I got a very curious call, the day after the trial. It was from a guy that had been on the hung jury. Apparently he saw my name quoted in the AZ Republic article and tracked down my number. He wanted to compare notes to figure out how we were able to be unanimous while they were hung.

In our discussion, it became clear that 99% of the two trials were identical. Even the prosecutor’s phrases like “got all liquored up” were the same. There were at least two notable differences, though. First, they only had Joe imply that Gary wasn’t racist in the first trial. The defense had Joe explicitly say that in ours. Second, even though Gary was obviously lying to them, too, he didn’t yet make up some of the recent things like the washing of his hands and exactly how much vodka he drank.

Still, they thought that the defense was extremely weak, that the prosecution was good but very arrogant and condescending (the phrase I used was “flippant”), that Paula’s testimony was completely unreliable, that Tony’s was likely half-true and half-not, that Joe’s was completely believable, and that Gary lied about everything.

So what was different?

It was the people in the jury. They were 9 Guilty vs 3 Not Guilty to start and it never budged. One of the “Not Guilty” jurors was their foreman and he refused to even read the charges until much later and really didn’t seem to care about the details. The core problem, though, was one juror. She was, in this juror’s words, “an incredibly rude and obnoxious woman”. She shouted down what other people said, insulted them, and refused to listen or respond to any logic at all. Apparently she had been almost car-jacked years ago and was saved by pulling her gun out of her purse and pointing it at the would be car-jacker. In her mind, this meant that any case of pulling your gun was self defense and she refused to consider that maybe actually killing the guy was a completely different scenario than just pointing the gun at him.

After some time, she finally said “we could argue about this for a month and I wouldn’t change my mind”. That’s when they had to call it a hung jury. Apparently another juror was so distraught at not being able to bring Gary to justice that she was opening crying in court. She felt that they had failed the Varelas and now a murderer would go free.

After hanging up, I was thinking about how incredibly lucky we were to get the group of jurors that we did. We may have had different backgrounds and experiences, but everybody stayed on point; everybody kept an open mind and listed to opposing arguments; and most of all, everybody acted like rational adults. I am so thankful of that now, after hearing what might have been.

As a side note, considering that it was 9-3 on the first trial and 12-0 on ours, it seems unlikely that Gary could ever get an outright acquittal so I wonder if they will bother trying to appeal.


In reading about the incident when it happened, there were a number of comments by Gary’s family members that tried to paint a different picture. There were allegations that Juan and Gary had had previous altercations. At least one family member insisted that three men (including Juan) had jumped Gary at his house and beat him up. This supposedly happened at least once and maybe twice.

I can’t say I believe that. Wouldn’t that be something that would have been mentioned or at least alluded to in the trial? After all, they were able to bring up Juan’s previous conviction. Tony claims that they had had very limited contact before and even Gary just said that they chatted a few times, in passing. He never even hinted that they had run-ins before the shooting.

The Details

Here are some random details.

The judge was Judge Susan Brnovich. I can’t find any photos of her online. She looks like somebody from the midwest, though, and apparently she is originally from Wisconsin. That makes sense.

The main prosecutor was Heather Wicht. I didn’t catch the name of the other one. Ms Wicht looked to be around my age. She apparently graduate from UofA law school in 2001. I couldn’t find any pictures of her, either.

I later find that the other prosecutor is Jessi Wade. No pics.

One of the two defense attorneys was Will Peterson. He is a Maricopa Country Public Defender. That makes sense, based on the relationship that Gary seemed to have with his lawyers. I didn’t catch the name of the other one. Yep, no pictures of him, either. It seems that all of the lawyers in this trial are severely photo-phobic.

Actually, I later discovered that the main defense attorney was Public Defender Robert Ditsworth. Here’s his Facebook Page, with a picture, even!

Here’s where this all went down: 6400 S Montezuma. Gary’s house is one with the white roof and desert landscaping. Joe’s house is the one on the intersection of Montezuma and St Catherine. Juan’s house (Paula’s, actually) is the one just South of that and Tony’s is the next one. Notably, if you do a Street View of Joe’s house, you can see a beat-up yellow sign. Juan was shot right behind that sign.

The official timeline of the shooting was: 911 Call @ 1:13pm. Dispatch sent out @ 1:14pm. Police on scene @ 1:15pm. Gary in custody @ 1:17pm.

The case info is here: CR2010-123572. It looks like sentencing will be on May 13, 2011. The minutes are here: CR2010123572 Minutes. The minutes aren’t transcripts so they say “when” people said stuff, but not “what”.

Remember how they hinted that his gun had been taken away from him before? And that I wondered if he had a previous (maybe DUI) conviction? Yep: CR1997-007962. It was a DUI with a BAC of 0.10 or higher in 1997. Looks like he just got probation. I wonder why they couldn’t bring that up in this trial. I kind of figured that he must have had some history with alcohol. Notably, though, this isn’t a case that resulted in his gun being pulled — he bought the gun only five years ago and this case was 14 years ago.

I also found Juan’s prior case involving the stabbing. He pleaded Guilty to Aggravated Assault and go probation. CR2007-117794. In a twist of fate, it looks like his probation ended three months after his death. Comments in various blogs implied that Tony had a criminal record, too, but I couldn’t find any evidence of that.

Edit May 16, 2011: The sentencing was originally scheduled for May 13 (last Friday), but it looks like it didn’t happen.  According to the court site, a new sentencing date is scheduled for July 5, 2011.  I have no idea why as there are no docs online describing the rationale behind this.

Edit July 06, 2011: 27.5 years!  Judge Brnovich sentenced him to 20 years for the murder and 7.5 years for the aggravated assault, to be served consecutively.  Since he’s 51 now, that’ll put him in his 70s before he’s eligible for parole.  Cool.  Apparently Gary apologized to the Varela family before the sentence was passed down (which he never did during the trial) and said “I don’t hate these people. I didn’t hate him. But for some reason they want to make this a hate crime, and its not.”  I tend to agree… but I think Brnovich absolutely nailed the jury’s sentiments when she told him “I don’t consider you to be a racist — I consider you to be a murderer.”  Yep.

5 thoughts on “The Gary Kelley Murder Trial”

  1. Hi from the former Juror #8! Thanks so much for the detailed notes – you don’t know how frustrating it was not to be able to deliberate after all that. You all seemed to have reached the right conclusion. I still think it’s possible that it was racially motivated, but I can understand the reluctance to call it that. I will be interested to see how Judge Brnovich rules.
    I had a lot of similar thoughts. LOVED your question about the hand washing. One of the many unintentially comical moments – thank you. 🙂
    Take care,

  2. The Prosecution did not concentrate on proving “Racism”, but concentration was placed on proving that this was not self defense. The fact that the defense wanted to dirty up my brother Juan by briefly bringing up a past offense was ugly. Yes, the past offense occurred in almost the same location. A drunken, drugged up nephew that came to our mom’s home wanting money for more drugs. This too happened in front of our mother. My brother Juan pleaded guilty because he didn’t want our elderly ill mother to have to testify. The Judge who tried the case charged Juan accordingly and he served 49 days in jail (got out early for good behavior). It is the family’s belief that this was racially motivated. Juan was disabled, but in his right mind and capable of taking care of his family and our mother. Because of the medication he drank he had to protect himself from the sun. He would dress up with long sleeves, long pants, and a “Sombrero” hat when working in the yard. He would also play his Christian Spanish music while working. Yup, even I joked at him once by saying “you look like a wetback”. Just because Gary was married to a Hispanic woman and has Hispanic children, does not mean he is not racial. In fact, he marrying and divorcing her twice makes me consider that he was very upset at the Hispanic race. The Judge can still add the “racial” aggravation. Which is also important. However, it will not bring our brother, a son, an uncle, a father, a husband, a friend back home. If you want to know more about how the family is missing him, you can go to Thank you for your service as a juror. God bless us and God bless Kelley’s family.

  3. You can also visit a page on face book that was created by a person who lives in Texas whose name is Mel. I have not personally met her, but she moved with compassion to create the page “In Remembrance of Juan Varela.

  4. Of course there are some very small details that the family considered incorrect or just outright false. But that’s not why I’m leaving this comment. I wanted to say THANK YOU. Cause in the end you still seen the lies that Gary was telling and in the end you found him GUILTY. You seen that he MURDERED someone for no reason at all. We just hit a year of his death and it is still very real in our hearts and in our minds. My grandmother is not the same. I hurt when I see her, you can see the pain in her eyes and she replays the events of that day in her head all the time. just out of nowhere she’ll start to describe HOW my uncle hung on the the fence then fell to the ground after being shot. So you know it’s in her mind replaying all the time. but with the Grace of God I know he’s getting her through this, day by day. This man stole my uncle, her son and my mom’s baby brother from us… and for that we will never be the same. But thank you again for your service on the jury and thank you for this blog. very detailed and very well written.

  5. thank you for your incisive and detailed account of this trial. i believe (as a latino) that there was a degree of racism on the part of the defendant, you alluded to this racist element briefly. mr kelly’s inebriated state and his need to instigate a confrontation with the victim where not fully connected by the prosecutor or yourself – people in their sober state are able to control their urges and behavior – i believe alcohol uninhibited mr. kelly’s true persona and free of any social constraints his true animosity and anger toward hispanics exploded uncontollably.
    once again thank you for your service and this log.

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