Jeffrey Martinson

Jeffrey 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

Jeffrey Martinson will no longer face the death penalty in the case of his 5-year-old son’s 2004 death in Ahwatukee Foothills.

Martinson’s second trial is set to begin early next month. A jury found him guilty of first-degree murder in November of 2011 but that verdict was thrown out when the jury came back hung on the penalty phase.

Both sides filed several motions with the court since the case was thrown out. The state’s attorney, Frankie Grimsman, sought to dismiss the 2004 case and reindict Martinson on new charges, to correct a problem with submitting evidence. Grimsman argued the new indictment was not sought for an improper purpose since the state dropped the maximum penalty. Judge Sally Duncan denied the motion to dismiss the 2004 charges but did allow the maximum penalty to be dropped.

During oral arguments of pending motions on Wednesday, Duncan said she would allow testimony from medical examiner Dr. John Hu as to the cause of death but not the manner. Hu’s testimony was highly controversial during the first trial.

Duncan also said she would redact portions of Martinson’s recorded interrogation that were overly prejudiced and might confuse the jury.

The state will not be allowed to show evidence of Martinson not calling 911 for his son, except as rebuttal to testimony from grief experts.

The trial is expected to go no longer than January of 2013.

Martinson is facing first-degree murder and child abuse charges in the case of his son’s death in August of 2004. Martinson failed to drop off his son, Joshua Eberle-Martinson, after a weekend visit.

Joshua was found dead on the top bunk of a bed inside his father’s Ahwatukee Foothills apartment. Martinson was found unresponsive in his bedroom.

Duncan declared a mistrial on March 27, 2011 because of jury problems and possible issues with expert testimony.

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