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A deputy Maricopa County attorney tried to prevent a grand jury from hearing the 911 tapes, even after being ordered by a judge to play them, resulting in a finding of prosecutorial misconduct. / Getty Images/iStockphoto

PHOENIX - A set of 911 tapes that a prosecutor tried to withhold from a grand jury proved instrumental in helping acquit two Phoenix brothers who had been indicted on charges of murder and aggravated assault in a 2007 gang shootout.

On Tuesday after listening to the tapes in detail, a Maricopa County Superior Court jury came back with six not-guilty and six deadlocked verdicts against Jonathon Mena Cobian, 27, and his half brother John Mitchell Mena, 25.

In the early days of the case, a deputy Maricopa County attorney tried to prevent a grand jury from hearing the tapes, even after being ordered by a judge to play them, resulting in a finding of prosecutorial misconduct.

The case unfolded in June 2007, when the two men faced a carload of known gangsters in the front yard of their mother's house in Phoenix.

By the time the brothers stopped shooting, three people were dead and three were gravely wounded.

Cobian and Mena claimed self-defense. They were charged with murder, and their fate depended on two 911 calls that Cobian made on that day.

Agustin Hernandez, 17, Miguel Rodriguez, 20, and Alejandro Hernandez, 18, were killed in the shootout. Cynthia Hernandez, who was in her 30s, and her teenage daughter Alyssa Hernandez were wounded, as was another teen, Jorge Rodriguez. Two other teens, Cyndi Holguin and Apolinar Rodriguez, were uninjured.

The brothers claimed the victims, who they knew by their gang names - Sleepy, Smiley, Scrappy, Psycho, Joker - had attacked them.

The encounter was the second that day between Cobian and several of the gang members. They had confronted and fought with Cobian earlier at his mother's house, looking for Mena, who had quit the gang. They said they would come back, and they made good on the threat.

Prosecutors maintained that the carload was on its way to the lake to go swimming. During her closing argument, prosecutor Keli Luther said that one of the dead gang members, Miguel Rodriguez, had come to share the good news with "his best friend," Mena, that he was going to join the Marines.

Cobian, she said, was afraid that Mena, who was on probation for another offense, would start running with the gang again.

"They pulled guns on a carload of innocent people," Luther said.

The jury did not buy the argument.

"There was so much 'he said, she said' and so little evidence," said juror Epaul Fischer of Phoenix. "The majority (of jurors) thought the prosecutors had not proved the case beyond a reasonable doubt."

But Fischer said that they had played the 911 calls in the jury room, stopping every few seconds to discuss what they heard. Most of the jurors voted for not guilty on all counts, Fischer said.

Whether the County Attorney's Office decides to retry the hung counts hasn't been decided, spokesman Jerry Cobb said.

According to testimony and court records, on June 15, 2007, Cobian was visiting his mother at her house when a teen he knew as Smiley came to the door looking for Mena. Cobian said he wasn't home, but the teen asked him to step outside. Several of the teens then attacked Cobian, punching at him and throwing beer bottles.

According to Cobian, they said they would be back to kill all of them.

Cobian and Mena's 10-year-old brother called police. He told the 911 operator there were gangsters attacking his brother.

The 911 operator asked to speak with Cobian, who calmly described what had happened and stayed on the line until the police arrived. Cobian asked the operator what he could do to protect himself. The operator told him to ask the police officer when he arrived. The officer told him he would be within his rights to have a firearm.

Cobian went to his grandmother's house to retrieve a shotgun and an AK-47. Then, he went to the mall to pick up Mena and returned to their mother's house.

The gangsters pulled up to the house in a Kia Sorrento just as the brothers drove into the driveway. Cobian held the AK-47, Mena the shotgun. Cobian warned them not to advance and fired a warning shot. Then, all hell broke loose.

Miguel Rodriguez got out of the front passenger side of the car and approached the brothers with his hand out. Prosecutor Luther described it as a handshake, as did one of the witnesses, Cyndi Holguin, who said during her testimony that she had been in the back seat of the car, admittedly smoking marijuana.

Jorge Rodriguez got out of the driver's seat. Agustin Hernandez also got out, and the two approached the brothers.

Cobian fired, killing Miguel and Agustin and seriously wounding Jorge. When the back passenger side door of the car opened, he fired, killing Alejandro and wounding Cynthia Hernandez and her daughter Alyssa.

Mena closed his eyes and pulled the trigger of the shotgun. The brothers retreated inside.

Cobian called 911 again. "I just shot someone!" he shouted. "They were attacking me! ... You have to call an ambulance, please!"

The 911 operator pressed him for details.

"Ma'am, you really need to call an ambulance," Cobian said.

He told the operator that the gang members had been there earlier.

"I have the police report in my pocket."

Cobian was charged with two counts of first-degree murder, one count of second-degree murder and several aggravated assault and weapons charges. Mena was charged with aggravated assault and weapons charges.

Cobian's attorney, John Canby, was able to get the indictments sent back to the grand jury three times because the original prosecutor, Eric Basta, did not play the 911 tapes for the grand jury, even after being ordered to do so. A Maricopa County Superior Court judge found that Basta committed prosecutorial misconduct and threw out the indictment.

But the County Attorney's Office still insisted that the deaths were first-degree murder and, instead of going back to the grand jury, chose to have a preliminary hearing in front of a judge, who ruled there was not enough probable cause to go forward with first-degree murder. So, prosecutors had to settle for second-degree.

The trial began in late April. In his opening argument for the defense, Canby merely played recordings of the two 911 calls. The jury deliberated for two days and came back with a verdict Tuesday afternoon.

"The prosecutors were basing their case on the anger issue," Fischer said, "and there just wasn't any in that first call."

Cobian and Mena embraced each other in the courtroom, tears running down their cheeks.

"You're going home," defense attorney Mike Terribile said.



Copyright 2014 USATODAY.com

Read the original story: 911 tapes key to acquittals in brothers' murder trial

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