Kozachik: No justice for Genna in plea deal for her shooting death

Seven years ago, Genna Ayup was shot and killed in the front room of her home. The killer was her live-in partner, the father of their two-year, eight-month-old child. The little boy stood by and watched as the incident played out. He told police, "daddy hit mommy, then daddy shot mommy." The statement was not received as evidence due to his age.

Tucson police charged the killer with manslaughter. After a brief review of what TPD presented to her office, the County Attorney's Office dropped the case.

The killer had been at O’Malley’s bar for three hours immediately prior to the shooting. We know he had four large lagers during that time. Within 30 minutes of his having left the bar and arrived at home, Genna was dead.

Shortly after the killing, the Arizona State Legislature considered adopting what at the time was to be called Genna’s Law. It would have very simply made it evidence of criminal negligence to fire a weapon and injure or kill somebody if your blood alcohol was above the DUI limit of .08. Our absolutely bought-and-paid-for by the gun lobby Legislature failed to pass it as law. The message: in Arizona you may not operate a motor vehicle with a blood alcohol level of or above .08, but you may operate a firearm if you have been drinking. Genna’s death is testimony to the impact of that gutless lack of will.

In addition to the drinking, there were other uncontested facts that should have supported TPD’s effort to bring the case to trial. For example, there was a bruise on the side of Genna’s face. There was a hole the size of a fist with blood stains punched into the drywall by the front door of their house. There were signs of a struggle; clumps of Genna’s hair were found and photographed by TPD in the front foyer of the house. There was a broken wine glass in that same area. Genna’s body was approximately six feet away from where those pieces of evidence were found. She was shot in the temple, and dropped and died immediately. One does not stagger six feet down the hall after having been shot in the head.

The killer says he was simply sitting in the living room placing a new grip on his pistol when it accidentally fired, hitting and killing Genna. It was all just one big mistake. He had a glass of liquor on the ottoman in front of him – continuing the drinking he had begun at O’Malley’s. When police arrived, the grip was fully deployed on the gun. It was not half on and half off, as though he was struggling to slide it onto the weapon.

Not only did the county attorney ignore all of that, but buying the story the shooter gave, she accepts as just an unfortunate break for Genna that she happened to be standing in the line of fire when her "partner" who had been drinking was fumbling around with a Glock, loaded with a clip and a bullet in the chamber, when his finger accidentally hit the trigger. Nothing to see here folks. Drop the case.

That cannot be our standard for how we hold people accountable for gun violence in Tucson, or in Pima County. The message cannot be that if you want to kill somebody, make sure it was just the two of you in the room, do the deed and say it was an accident. And yet, if left to the County Attorney’s Office, that would indeed have been the message.

I have known Genna’s dad through his work at the University of Arizona. Going on two years ago, I met with him and Genna’s mom to talk about the case. The City Council had passed our own local version of Genna’s Law, but the fact that the killer was still on the loose, and had custody of the little boy was a lingering wound. To be clear, regaining custody was not an easy lift for the shooter. He failed drug tests for nearly three years after Genna’s death and could not regain custody until he came up clean.

At the time of our initial meeting, I had not reviewed the case file. When we met, I assumed they simply wanted me to help re-initiate a statewide Genna’s Law. As I poured through the files and photos they brought along, it became obvious that a gross miscarriage of justice was taking place. Photos of the scene I’ve described above left it clear that TPD’s initial charge of manslaughter was the minimum the case deserved. In rejecting the trial, the county attorney even ignored the obvious: criminal negligence with a deadly weapon, along with child endangerment, or even more serious charges that could be justified based on the crime scene.

I read through the files. Statements from friends, family and neighbors painted a much different picture than the story being told by the killer. To be sure I wasn’t simply being overly-emotional about what I was seeing and reading, I asked my chief of staff to read through and give me her independent analysis. To both of us it was clear that in dropping the case, there had been no justice for Genna.

The way the law works, TPD can present a case, but it’s up to the county attorney as to whether or not she takes it to trial. We had to get the case reintroduced and get her to reconsider the earlier decision. To begin that process, we turned all of the case files over to a criminal attorney – one who usually presents cases in defense of police actions. We still did not want to rely on emotions, or pay the attorney to simply tell us what he thought we wanted to hear. Our instruction to him – review the files and tell us what you think.

After a couple of weeks, the attorney sat with us, and with Genna’s family to give us his opinion. Without qualification he told us that the case deserved to go to trial, and that the charges could have easily been more severe than manslaughter. Based on that, I scheduled a meeting with our chief of police and his detectives to review what we had come up with. The result of that meeting was TPD agreeing to internally review our material and conclusions. They did, and they also concluded the case needed a trial.

TPD re-presented the case to the county attorney’s staff, who agreed to review the material, did so and elected to bring the case to trial. The killer was indicted on manslaughter. A trial date was set for November of this year.

Manslaughter carries with it the potential for prison time ranging from 7-21 years. The prosecutor assigned to the case told the family all along that he fully believed in the case. During the #URResponsible event I hosted at St. Mark’s church last summer, he said to the crowd that his office is committed to prosecuting cases "to the fullest extent of the law." All of us who had invested the time, money and emotion into bringing this case back to trial felt Genna would finally get her day in court.

Then, a promotion happened within the County Attorney’s Office. The prosecutor assigned to Genna’s case got reassigned. Genna’s family was called and told they were to meet with the county attorney staff, putatively for an update on the case. Instead, they were told a plea deal was being considered, one that included probation as an option. The prosecutor who all along had said he fully believed in the case now had other fish to fry. Genna’s case was being sold for probation. The county attorney could still claim a victory because she can claim a conviction. The loser is justice. And ethics. And this community.

A plea hearing is scheduled for next week. A few things can happen. The killer can reject the plea and say he wants to take his chances on being fully exonerated through a trial. I say, bring it on. Or he can accept the plea. The judge can accept or reject any of the options. The family and I, along with well over 100 people have written letters and/or signed petitions asking that probation not be offered as an option. Let’s lay the facts on the table and let them speak for themselves. Is that more work for the County Attorney’s Office. Yes. Should we embrace them looking for the cheap and easy "way out" of this case, and still claim a victory? Not a chance.

Tucson has had two mass shootings. Despite pre-emption laws passed at the state level, we have in place a series of gun-safety policies at the city level that make a strong statement in support of common-sense gun laws. It is not common sense to go out drinking, come home and try to squeeze a new grip onto a loaded weapon with your "partner" and child standing within a few feet of you. Even if it’s to be believed that that is actually how Genna was killed, the message to the community cannot be that that level of negligence, when it ends in the death of another, deserves probation. Not here. Not anywhere. That cannot be our standard of justice.

We will see next week whether or not the judge in this case agrees. If he does, Genna will finally get her day in court, and many of us hope justice will be served, even if it’s seven years late in coming.