Seventeen years and one month ago today, paramedics arrived at an Ahwatukee home and found the lifeless body of 5-year-old Joshua Eberle-Martinson in a bunk bed in a spare bedroom.
In the master bedroom on that Sunday, Aug. 29, 2004, they found his father, Jeffrey R. Martinson, partially unconscious with a garbage bag over his head, his wrists bearing cuts.
Following a four-hour interrogation, Phoenix detectives arrested Martinson, then 43, on homicide in the death of a boy who only five weeks earlier had celebrated his birthday.
That arrest started a 17-year legal battle that has cost Maricopa County taxpayers more than $5.3 million just on Martinson’s legal defense.
And to this day, Martinson’s guilt or innocence in the death of his son as a result of an overdose of a muscle relaxer has yet to be determined.
Martinson was convicted of first degree murder in November 2011 by a jury that a month later could not unanimously agree to a prosecution request for a death sentence.
Three months later, Superior Court Judge Sandy Duncan found the jury so tainted by irregularities that she overturned that conviction.
Martinson has been behind bars for over half the time since his arrest but today he is free on a $250,000 bond that Superior Court Judge Jay Adleman a year ago cut from $1 million as he awaits a new trial that could be set at a hearing this November.
The 17 years of legal wrangling that have marked the State of Arizona vs. Jeffrey R. Martinson unfolds in thousands of pages of attorney pleadings, judicial opinions and transcripts of hours of courtroom hearings.
They bear testament to bitter fights between prosecutors and at least five different defense teams that have represented Martinson at various times.
There also has been acrimonious battles between some defense lawyers over who was entitled to represent him and collect hourly fees that at times were twice what court-appointed lawyers in criminal cases normally were paid.
At one point, the case also was snarled in open political warfare between former County Attorney Andrew Thomas and Maricopa County Superior Court until Thomas ultimately resigned in disgrace, only to be disbarred.
In the past two years, every scintilla of evidence against Martinson has been challenged by his lawyers as prosecutors try to preserve their theory of the case – that he allegedly killed Joshua because he was upset over impending changes to his visitation schedule and that he had an overall hostile relationship with the boy’s mother, to whom he was not married.
Defense lawyers have accused prosecutors of misconduct, partly by trying to change their theories of the case to better fit the evidence and “leaving the defendant with no valid conviction and in custody for more than nine years.”
Martinson’s case has been before a special three-judge panel in Maricopa County Superior Court, the Arizona Court of Appeals, the state Supreme Court and the U.S. Supreme Court – primarily on whether double jeopardy rules prevented the County Attorney from retrying him.
He lost all those appeals.
Rearrested in 2018 in his native Wisconsin and sent back to jail until his release in October 2020, Martinson through his lawyers wages a relentless fight to block some of the witnesses in the 2011 trial from testifying again – or limiting what they will be allowed to say.
One fight zeroed in on literally just two words that Martinson’s latest team of defense lawyers, Robyn Varcoe and Jennifer Willmott, don’t want uttered before jurors in his next trial when it came to custody arrangements.
Some of the defense efforts also have drawn legal protests by the Scottsdale-based Arizona Voice for Crime Victims, a nonprofit formed in 1996 to “preserve and protect victims’ rights to justice and due process.”
During Martinson’s bail hearing last year, the nonprofit supported an effort by Joshua’s mother to not only keep him from being near her Chandler home but also prevent him from visiting the cemetery where the boy was laid to rest. The judge limited the times of those visits instead.
Lost amid all the arguments, challenges and rulings is the memory of a little boy who liked to fill his backpack with crystals and LEGO creations, draw rainbows and sing in the backseat of his mother’s car.
Premeditated or accidental?
Few facts surrounding the discovery
of Joshua’s body have been agreed to in the case.
Prosecutors contend he was deliberately killed while the defense contends evidence supports Martinson’s trial testimony that he found the boy apparently drowned in the bathtub.
During Martinson’s 2011 trial, a next-door neighbor testified that she spent many hours with him and Joshua when the youngster visited every Wednesday and every other weekend.
She testified that the evening before the boy’s body was found, Martinson had texted her, “We love you and will miss you.” Some time later she said she called Jeffrey and talked to him for over an hour.
The next night, the boy’s mother and two officers showed up and told her Martinson had not returned Joshua and was not answering the door.
The neighbor found the back door to his home unlocked and found Martinson in his bedroom. While Martinson appeared to be unconscious, a paramedic said he did not believe him to be fully out of it. That testimony is being challenged by defense lawyers, who call it inadmissable.
Testimony showed that on the kitchen counter were numerous legal papers, including orders of protection the boy’s mother had secured against Martinson.
Defense lawyers have been waging a fight over what the toxicologist and the medical examiner who performed the autopsy can be allowed to testify to – or even if they should be allowed on the witness stand at all.
Dr. John Hu, who performed the autopsy, ruled the death a homicide and that it was caused by acute carisoprodol toxicity.
While a detective said the bathtub was dry, defense lawyers pointed out that photos taken the night of the boy's discovery show a bathroom rug was sopping wet.
But Judge Adleman noted that Hu has said “a conclusion of drowning was not supported by the carisoprodol levels present.”
The drug is also known by the brand name Soma, and witnesses testified an empty bottle of Soma with a child-proof cap was on the top shelf of a medicine cabinet.
Under cross examination, Hu conceded his findings could be consistent with other causes and that tests were never conducted to rule out some of them.
Defense lawyers also tried to prevent or limit Hu's testimony about a small abrasion inside the boy’s lip, which he intimated could have been caused by an effort to force the drug into his mouth. Under cross examination at Martinson's trial, Hu also testified it could have been caused by an attempt to resuscitate him.
Adleman rejected efforts to disqualify Hu from testifying at Martinson's new trial.
The judge stated, “Dr. Hu did not give a specific opinion regarding the precise cause of injury” since he had testified that while it likely resulted from blunt force, it could have been caused by CPR attempts.
Likewise, he rejected efforts to block all testimony about marks on the boy’s neck, saying they could legitimately be viewed as showing "that the child was 'manipulated' by the defendant as opposed to remaining in a stationary position in the bedroom.
‘Long and tortuous litigation’
Throughout the years, the words ‘long and tortuous litigation” have been used several times by lawyers and judges in Martinson’s case.
Some of that litigation has produced stunning revelations along the way.
Testimony by jurors prompted Judge Duncan in March 2012 to throw out Martinson’s conviction.
That testimony showed that a woman hid facts that could have disqualified her as a juror and that once deliberations began, she bullied her way into being elected the panel’s foreperson.
Other jurors testified that during deliberations, she repeatedly bullied them, denigrated the defendant and defense lawyers, and even rewrote a question one juror wanted the judge to answer.
One juror testified he felt pressured to find Martinson guilty of the most serious kind of child abuse – which opened the way for a death penalty hearing.
Duncan’s action triggered a series of legal maneuvers by the prosecution that ultimately prompted her to throw out the case entirely with prejudice.
The County Attorney appealed and won but the fighting continued in several appeals.
Last October, Martinson’s lawyers again asked Judge Adleman to dismiss the case – again on grounds of double jeopardy, contending “the prosecutors have engaged in pervasive prosecutorial misconduct throughout the life of the case that warrants dismissal with prejudice.”
But Adleman rejected the allegations, noting the state Court of Appeals vacated Duncan’s dismissal in 2016 and again in January 2019. The Court of Appeals also has ruled in March 2021 and again last August.
“The Court of Appeals has repeatedly addressed issues pertaining to the state’s ability to continue its murder prosecution against the defendant,” Adleman wrote. “Indeed, that court has made it abundantly clear that the state retains the authority to do so.”
“This is a hard-fought case, exacerbated by the tragic death of a child and further compounded by a tortuous procedural history,” he also wrote. “In spite of those circumstances, the court does not believe that the current record provides any evidence of prosecutorial misconduct.”
The trial will now be assigned to Judge Justin Beresky as Adleman has been transferred to new Superior Court division as part of a routine, regular rotation of judges.
And even before he starts his first hearing later next month, Beresky will have three defense motions that Adleman has not ruled on, saying it was better for the next judge to address them.