ST. JOHNS — Jay Patrick Jaiken, 34, has been charged by the Apache County Attorney’s Office with second degree murder and tampering with evidence allegedly arising out of the Sept. 3 death of a man who is reportedly identified as David Morales by two persons who have contacted the Independent. Details are still vague in that regard.
He was arrested the next day on Apache County Roads 8299 and 8235 in a neighborhood behind the Stanford General Store near the “Y”, or the junction of U.S. Highway 60 and State Highway 61. Of the friends of the deceased who have written to the Independent, one said Morales “was never out looking for trouble,” and “the life of the party,” and that he was live on Facebook around 7:30 p.m. on the date he was allegedly murdered. Jaikin is presumed by law to be innocent.
He appeared in custody at Apache County Superior Court on Oct. 26 with his recently retained attorney, Ronald D. Wood whose office is in Show Low. Charges were filed on Sept. 9 according to court records, and Wood is actually Jaikin’s third attorney. The first court appointed lawyer asked to be taken off the case for an unknown reason; the court appointed a second one, and Wood substituted in for the second appointed lawyer on October 5.
The Apache County attorney does not use a grand jury to find probable cause in felony cases. That means that charges filed directly by the prosecutor must first be examined for probable cause by a judge in a proceeding called a preliminary hearing. The Arizona Rules of Criminal Procedure require that, unless the defendant voluntarily waives the time limit, the preliminary hearing must be held within ten days of his initial appearance after arrest, which happened in this case on Sept. 4, according to a motion filed by his new counsel.
Because of the COVID pandemic, the Arizona Supreme Court which writes the rules of procedure, expanded that time period to 20 days for in-custody defendants, rather than ten. In fact, the court set Jaikin’s preliminary hearing for Sept. 21, within the new 20-day time limit. However, when Sept. 21 came around Jaikin’s first lawyer wanted out and moved to withdraw. The presiding judge Michael Latham continued the hearing to Oct. 26 and two days later on Sept. 23, appointed the second lawyer.
If the defense motion is correct, that means Jaikin would have been be in custody for one month and 17 days on the new date of Oct. 26, and Wood urged that Jaikin never agreed to waive his absolute right to a timely hearing. So new lawyer Wood demanded Jaikin’s release on Oct. 20. After all, a presumptively innocent man has lost his liberty, is being held in jail on an allegation made by an individual prosecutor based on a sheriff department’s police report, an allegation for which there had been no probable cause established.
“Mr. Jaikin must be released forthwith,” demanded Wood in his motion.
Career prosecutor, Deputy Apache County Attorney Garrett Whiting has been assigned to the case and quickly responded to Wood’s motion. Whiting wrote that “based on (Whiting’s) notes and recollection ... previous counsel did complain about his appointment to Defendant’s case,” but didn’t formally move to withdraw, and that the only formal thing prior counsel did on Sept. 21 was to move to continue the hearing. Whiting told the court that he is “not certain whether or not counsel or the court addressed a waiver of time specifically,” but the motion to continue included a waiver of the 20 days, so there is no violation, argued Whiting.
Not so fast, argued Wood. There’s no motion to continue in the court file Wood said, and the withdrawing counsel never even talked to Jaikin, so Jaikin could not have waived the time limit. Further, case law says that a waiver cannot be assumed by a silent record, that it’s up to the state to demonstrate a valid waiver of time and they haven’t done that, Wood argued.
When the parties appeared on Oct. 26, Judge Latham once again continued the preliminary hearing to Nov. 9, but then moved it even further out to Nov. 16. On Nov. 16, the court will hear arguments by Wood and Whiting as whether Jaikin’s right under the Arizona Constitution to a timely preliminary hearing was violated. If the judge finds that there was indeed a violation and releases Jaikin, the state can move to dismiss its own charges against Jaikin and simply re-file them.
There is no statute of limitations for murder in Arizona and the prohibition against double jeopardy won’t prevent a refiling because a jury had yet to be empaneled, which is when jeopardy attaches, as they say in that industry. Finally, if Jaikin is released, it won’t be for long. Facing no charges, Jaikin would be free to go anywhere he wants; therefore, it is expected that law enforcement would keep a very close eye on him until he is re-arrested on the re-filed charges. In fact, if the prosecutor believes that there is a chance that Jaikin will be ordered released, that office may just show up on October 26 with the new charges in hand, ready to be walked down to the court clerk’s window and filed in.