Mother feels jaded by justice after accused child killer is freed

Posted: Updated:
By Tami Hoey By Tami Hoey

PHOENIX -- A Valley mom is feeling jaded by justice after the man accused of killing her 5-year-old son is freed.

For the first time since the ruling, this mother shared her heartache and will to survive exclusively with 3TV.

Josh Martinson found fun in everything and everywhere. His mom, Kris Eberle, holds on to her memories through a library of home videos and an impressive collection of photographs.

"I have pictures of him of every single day of his life that he was with me so I have tens of thousands of pictures of him, so I'm very thankful for that," Eberle said.

In August 2004, Josh's lifeless body was discovered in his father's apartment. Jeffrey Martinson was accused of drugging and killing his son.

"There were days when I didn't want to wake up, honestly, I was like, please don't let me wake up tomorrow," Eberle explained.

Fast forward to 2011, seven years later, Martinson's case finally went to trial. While a jury found him guilty of first-degree murder, the conviction was short-lived. Twenty-fours later, Judge Sally Duncan declared a mistrial.

A combination of factors led to her ruling, among them jury misconduct.

Eberle remembers that night with vivid detail.

"Just to have that weight lifted and freedom for a night, it was for a night, that's why it's so upsetting to remember that because it was taken right back away," she said.

A new trial was scheduled, but in November Duncan did something that caught everyone off-guard. She dismissed the case "with prejudice" after finding prosecutorial misconduct.

"I didn't think that would possibly be a ruling, an outcome," Eberle said. "It took me awhile to comprehend what I was hearing."

So after spending nine years in Tent City, Martinson was a free man.

Those two words, "with prejudice," means Martinson can't be retried for Josh's murder.

When Colleen Clase, Eberle's attorney, got the news, "I had to sit there, again and again to make sure. I was certain that I was reading it wrong. I was shocked by the court's decision and our No. 1 concern was for Kris and her well-being and her safety."

Eberle went into hiding.

"I just chose to lay low and not respond to media, not respond to the people who were calling me because I really didn't know what I felt or didn't know what I would say to anybody," she said.

Clase, who works for Arizona Voice for Crime Victims, knew exactly what to do.

"Kris' right to be treated with fairness and her right to due process and justice were violated," she said.

Clase filed a Petition for Review with the Arizona Supreme Court. In March, the court declined to hear the case.

Meanwhile, Eberle refused to let what she she sees as another injustice interfere with her healing. She said there have been some positive moments during her nine-year nightmare.

Among them was visiting Egypt.

"He knew everything about Egypt and he could use all of the big vocabulary," Eberle said of Josh.

While in Egypt, Eberle began the painful process of letting go. Along for the trip was one of Josh's favorite crystals.

"And I left it in King Tut's tomb, you're probably not supposed to leave things there, but I dropped it down in the tomb, it was the first piece of anything of his that I let go of, but I thought this was his favorite thing and he loved crystals and he loved King Tut and I'm going to leave something of his here because I did that trip for him," Eberle said.

Rather than feel jaded by the justice system, Eberle poignantly explained, "If you survive losing your child, it's really, the other things are difficult, but nothing compares to that. So I guess you become a survivor, you become stronger, and you don't want anything else bad to happen but if it does, you're more equipped, I think, to handle it."