Jeffery Martinson listens on during his trial in Superior Court Wednesday Aug, 23, 2011. Martinson is charged with the first-degree murder of his 4-year-old son back in 2004. Aug 23, 2011. Darryl Webb/AFN

Darryl Webb

The second trial for an Ahwatukee Foothills man accused of murdering his 5-year-old son in 2004 has not yet begun as appellate courts decide whether or not the same judge will continue to oversee the case and whether Jeffrey Martinson will be allowed to retain his sixth set of legal counsel.

A jury found Martinson guilty of first-degree murder in November of 2011, but the verdict was thrown out when the jury came back hung on the penalty phase.

Judge Sally Duncan oversaw the first trial. In court documents she blamed inadmissible and misleading testimony from the medical examiner and juror misconduct for her ruling.

The new trial was set to begin in July of 2012 but has been held up by motions filed by the state’s attorney, Frankie Grimsman, and the Office of Public Defense Service (OPDS). Grimsman has argued for a new judge to oversee the case, which was denied by Judge Douglas Rayes on Sept. 6. There have also been questions about the defense counsel’s rate of pay.

According to court documents attorney Michael Terribile was assigned to represent Martinson on Oct. 15, 2009 after qualified counsel on the county contract who could be prepared for trial in 18 months could not be found. Treasure VanDreumel was appointed second chair. The court determined the two would be paid $300 and $250 per hour, respectively.

“This occurred at the height of the capital case crisis in Maricopa County,” Rayes wrote in court minutes for Oct. 9, 2012. “There were a limited number of defense attorneys in Maricopa County qualified to try capitol cases… Qualified counsel on the OPDS contract, willing to take a capital case at OPDS rates did not exist.”

Rayes denied the motion to determine reasonableness of fees on Oct. 9.

The case has gone to the Court of Appeals, where it is still being reviewed. An appellate court did rule to drop the 2004 indictment against Martinson in favor of a new 2012 indictment that would allow the state to submit evidence to the jury that they believe shows Martinson intentionally murdered his son.

Duncan does not have a court date scheduled for Martinson.

It has now been more than eight years since Joshua Eberle-Martinson was found dead inside his father’s apartment in August of 2004. Joshua’s mother, Kristin Eberle, became worried when Martinson did not arrive to return Joshua after a weekend visit. Martinson was found unresponsive on the bed in his room while Joshua lay dead on the top bunk of a bed in another room.

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