Capital Case Commission - Final Report

              Office of the Attorney General
State of Arizona
Capital Case Commission
Final Report
December 31, 2002
Janet Napolitano
Attorney General
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Table of Contents
Summary of Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
I. Introduction to the Attorney General’s Capital Case Commission . . . . . . . . . . . . . . . . . . . . . 1
• The Commission Membership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. Capital Punishment in Arizona . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
• History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
• The Capital Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
• Trial Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1. Guilt Phase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2. Sentencing Phase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
• Appeals Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1. Direct Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2. Post-Conviction Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3. Federal Habeas Corpus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
• Execution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1. Competency to be Executed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2. Clemency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
III. Attorney General’s Capital Case Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
• The Subcommittees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
1. Data Research Subcommittee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2. Pretrial Issues Subcommittee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3. Trial Issues Subcommittee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4. Direct Appeal/PCR Subcommittee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
• The Interim Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
IV. Capital Case Commission Deliberations and Recommendations . . . . . . . . . . . . . . . . . . . . . . 14
1. Capital Litigation Resources Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2. Audio or Video Recording of Interviews . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3. Minimum Age for Capital Punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
4. Mental Retardation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5. Notice of Intent to Seek the Death Penalty Under Ariz. R. Crim. P. 15.1(g)(1) . . . . 16
6. Selection of Capital Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
7. Competence of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
8. Legal and Judicial Education . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
9. Mitigation Specialists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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10. Proposed Reforms to Rules 31 and 32 of the Arizona Rules
of Criminal Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
11. Jury Deliberation in Capital Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
12. When a Peace Officer is Murdered . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
13. Victim Impact at Aggravation/Mitigation Hearings . . . . . . . . . . . . . . . . . . . . . . . . . . 21
14. Residual Doubt in Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
15. Clerks of Court and Court Reporters’ Procedures . . . . . . . . . . . . . . . . . . . . . . . . . 22
16. File Repository . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
17. Competency to be Executed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
18. Maintaining Capital Case Data . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
19. Preservation of DNA Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
20. Use of F6 Aggravator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
21. Review of Capital Cases in Which Convictions Were
Reversed, or Sentences Remanded or Modified
by the Appellate Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
22. Race-neutral Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
23. Requests for a Moratorium on the Death Penalty in Arizona . . . . . . . . . . . . . . . . . . 27
V. Comments by Commission Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
VI. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
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Summary of
Attorney General Janet Napolitano’s
Capital Case Commission Recommendations
1. Statewide Capital Public Defender Office: Create a statewide capital public defender office
to represent capital defendants at the trial level in the rural counties and in statewide post-conviction
relief proceedings. Legislation that would establish such an office was defeated in
the 2001 and 2002 State Legislative Sessions. The Capital Case Commission deeply regrets
that the Legislature did not address this need and urges the Legislature to pass legislation
appropriating monies for capital litigation resources.
2. Audio/videotaping Interrogations and Confessions: Urge law enforcement to audiotape or
videotape all advice of rights, waiver of rights and questioning of suspects in all first-degree
murder cases when feasible. A protocol was drafted and presented to the Attorney General’s
Law Enforcement Advisory Board. Although resource concerns were expressed, the Advisory
Board concurred in sending the protocol to the Arizona Criminal Justice Commission for
consideration.
3. Minimum Age: Enact legislation that would make defendants under the age of 18 at the time of
a crime ineligible for the death penalty. Legislation introduced in the 2002 State Legislative
Session failed. It is anticipated that similar legislation will be reintroduced in the 2003 Regular
Legislative Session. (This recommendation was supported by a majority of the Commission,
but was not a consensus recommendation.)
4. Mental Retardation: Enact legislation that would (1) make mentally retarded defendants
ineligible for the death penalty; and (2) require pre-trial mental retardation screening of all
defendants facing the death penalty. Legislation implementing this proposal was introduced in
the 2001 Legislative Session and signed into law on April 26, 2001.
5. Death Penalty Notice: Amend Rule 15.1(g)(1) of the Arizona Rules of Criminal Procedure to
extend the time for filing the notice of intent to seek the death penalty to 60 days after
arraignment to allow more reasoned deliberations regarding whether to seek the death penalty.
Additional extensions of time would be available by stipulation of the parties and approval by
the trial court. The Capital Case Commission’s proposed change to Rule 15.1(g)(1) was
adopted by the Arizona Supreme Court effective June 1, 2002.
6. Selection of Capital Cases: Urge prosecutors to develop written policies regarding the
identification of cases in which to seek the death penalty, including a provision to solicit or
accept defense input before seeking the death penalty. This recommendation will be submitted
to the Arizona Prosecuting Attorneys’ Advisory Council (“APAAC”) for consideration.
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7. Competence of Defense Counsel: Amend Ethical Rule 1.1 to require all lawyers who
represent capital defendants to comply with the standards set forth in Rule 6.8 of the Arizona
Rules of Criminal Procedure (court-appointed counsel is already required to meet the
experience and qualification standards set forth in Rule 6.8; the proposed rule would impose the
same standards for privately-retained counsel). Amend Ethical Rules 5.1, 5.2 and 5.3 to hold
supervisors in public law offices responsible for supervising counsel appointed in capital cases
and to ensure that subordinate attorneys’ caseloads are such that they are able to render
competent representation. The Ethical Rule Review Group (ERRG) of the Arizona Bar
Association recommended these changes. As of the publication of this Report, public comment
was pending.
8. Legal and Judicial Education: Amend Rule 45(a) of the Rules of Arizona Supreme Court to
(1) require attorneys to complete a minimum of six hours of continuing legal education in capital
litigation, including ethical duties, within the preceding three years of being assigned a capital
case; and (2) require judges to complete a minimum of six hours of continuing judicial education
in capital litigation within the preceding three years of being assigned a capital case. The
Attorney General’s Office will prepare a Petition to amend Rule 45(a) for submission to the
Arizona Supreme Court on behalf of the Capital Case Commission.
9. Mitigation Specialists: Amend Rule 15 of the Arizona Rules of Criminal Procedure to provide
for the appointment of investigators and expert witnesses for indigent defendants. The Capital
Case Commission’s proposed changes to Rule 15 were adopted with minor modifications by
the Arizona Supreme Court effective June 1, 2002.
10. Considerations Regarding Requests for Extension of Time: Amend Rules 31 and 32 of the
Arizona Rules of Criminal Procedure to require courts to consider the rights of the victim and
defendant to a prompt and final conclusion of the case when ruling on any request for extension
of time. The Capital Case Commission’s proposed changes to Rules 31 and 32 were adopted
by the Arizona Supreme Court effective June 1, 2002.
11. Jury Deliberations: Oppose a Petition to Amend Rule 19.4 of the Arizona Rules of Criminal
Procedure that would allow juries in criminal cases to deliberate the case before jury
instructions are given by the court. The Attorney General’s Office submitted comments
opposing the Petition on behalf of the Capital Case Commission. The Arizona Supreme Court
denied the Petition to Amend Rule 19.4.
12. When a Peace Officer is Murdered: Amend A.R.S. § 13–703(F)(10) to include the murder of
an off-duty peace officer as an aggravating factor if the murder was motivated by the peace
officer’s status. This recommendation was presented to the Attorney General’s Law
Enforcement Advisory Board, but the Board declined to pursue the recommendation at this
time.
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13. Victim Impact at Aggravation/Mitigation Hearings: Amend Rule 26.3 of the Arizona Rules
of Criminal Procedure, the Comment, and Supreme Court Administrative Order 94–16 to
provide that a sentence is not imposed in a capital case until seven days after a sentencing
hearing at which the court considers aggravating and mitigating factors, the victim’s family is
given an opportunity to present information, and the defendant is allowed to present allocution.
The Capital Case Commission’s proposed changes to Rule 26.3 were adopted by the Arizona
Supreme Court effective June 1, 2002. That change, however, became inapplicable with the
enactment of Arizona’s new jury-sentencing statute in August 2002.
14. Residual Doubt in Sentencing: Oppose adding residual doubt to Arizona’s list of statutory
mitigators found in A.R.S. § 13–703(G), acknowledging that trial judges have the authority to
consider the strength of the government’s case in determining the appropriate sentence. (Non-consensus
recommendation.)
15. Clerks of Court and Court Reporters’ Procedures: (1) Amend Rule 31.9 of the Arizona
Rules of Criminal Procedure to require clerks of court to notify all court reporters in capital
cases within ten days of the filing of the notice of appeal to submit all transcripts to the Clerk of
the Supreme Court; (2) require trial judges to order transcription of all trial proceedings and the
gathering of the record on appeal in every first-degree murder case at the time the guilty verdict
is returned; and (3) require superior court clerks to enter a docketing code on all criminal
calendars identifying cases in which the death penalty is sought. The Commission’s
recommended changes were adopted by the Arizona Supreme Court effective June 1, 2002.
16. File Repository: Create a repository in each county for all trial and appellate defense files in all
capital cases so that post-conviction relief counsel can readily access files from a single
location. Additional discussion is needed with court administrators, prosecutors and defense
counsel to implement this recommendation.
17. Competency to be Executed: Commute death sentences to the maximum lawful sentence
possible upon finding that the defendant has become incompetent to be executed after the
issuance of a death warrant. Legislation was introduced during the 2002 State Legislative
Session, but failed. It is anticipated that similar legislation will be reintroduced in the 2003
Regular Legislative Session. (Non-consensus recommendation.)
18. Maintain Capital Case Data: (1) Amend data collection procedures at superior courts,
prosecuting attorneys’ offices and at the Attorney General’s Office to better capture descriptive
data about defendants, victims and the death penalty process; and (2) establish a mechanism
that will allow the Attorney General’s Office to maintain Data Set I, and the Center for Urban
Inquiry, College of Public Programs at Arizona State University to maintain Data Set II. A
subgroup of the Data/Research Subcommittee will continue to deliberate and develop
processes and protocols to implement these recommendations.
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19. Preservation of DNA Evidence: Encourage that legislation be enacted that would require the
preservation of all biological materials found at the scene of all unsolved homicides and in all
capital cases until such time as a defendant can be provided an opportunity to request DNA
testing of that evidence. The Attorney General’s Law Enforcement Advisory Board expressed
concerns regarding a lack of resources to implement this proposal, but did not oppose the
recommendation. (Non-consensus recommendation.)
20. Use of the F6 Aggravator: Encourage further study of the use of the A.R.S. § 13–703(F)(6)
aggravating factor that a murder was committed in an especially cruel, heinous or depraved
manner. Concerns raised during Commission discussions were that the aggravator is overused
and is vague. Opposition to changing the F6 aggravator was based on a belief that this is an
important aggravator in determining which cases stand out as being above the norm of first-degree
murders, and the current terms are relatively well defined by case law. (Non-consensus
recommendation.)
21. Race-Neutral Decisions: Encourage all participants in the criminal justice system to promote
practices that ensure race-neutral decisions, and encourage the use of the empirical data from
Data Sets I and II in internal reviews and discussions regarding the death penalty process.
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I. Introduction
In recent years, events across the country have raised the public’s awareness of the death penalty and its
administration. Since January, 1999, Arizona has executed 10 inmates and 117 prisoners are currently on
Arizona’s death row. Recognizing the need for a comprehensive study of the death penalty process in
Arizona, Attorney General Janet Napolitano formed the Attorney General’s Capital Case Commission in
the summer of 2000 to study key issues and make recommendations to try to ensure that the death penalty
process in Arizona is just, timely, and fair to defendants and victims. This Commission was not charged
with and did not consider whether a moratorium or abolition of the death penalty was warranted.
Commission Membership
The Capital Case Commission brought together persons with varied experience and distinct perspectives
regarding the capital case pre-trial, trial, sentencing and appeal processes. Commission members include
prosecutors, defense attorneys, trial and appellate judges, victims’ rights advocates, citizens, and members
of the Arizona Legislature. Members did not always agree, but were steadfast in their deliberations to
overcome differences in an effort to reach consensus on issues. Commission members include:
The Hon. Janet Napolitano
Arizona Attorney General,
Chair
Mr. Paul Ahler
Maricopa County Attorney’s
Office
Mr. Paul Babbitt
Coconino County Board of
Supervisors
Dr. Peg Bortner
Center for Urban Inquiry,
College of Public Programs
Arizona State University
Mr. James Bush
Fennemore Craig
Mr. Jose Cardenas
Lewis and Roca LLP
Hon. David R. Cole
Maricopa County Superior
Court Judge
The Hon. Steven Conn
Mohave County Superior
Court Judge
Sen. Chris Cummiskey
Arizona State Senate
Hon. Stanley G. Feldman
Arizona Supreme Court Justice
Mr. Jaime Gutierrez
Former Arizona State Senator
Mr. Charles Hastings
Yavapai County Attorney’s
Office
Mr. Harold Higgins
Pima County Assistant Public
Defender
Sen. Marilyn Jarrett
Arizona State Senate
Mr. Christopher Johns
Maricopa County Deputy
Public Defender - Appeals
Division
Hon. Cindy Jorgenson
U.S. District Court Judge for
the State of Arizona
Mr. Michael Kimerer
Kimerer & LaVelle
Mr. Charles Krull
Maricopa County Deputy
Public Defender - Appeals
Division
Mr. Thomas LeClaire
Snell & Wilmer LLP
Ms. Gail Leland
Director, Homicide Survivors
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Rep. John Loredo
Arizona House of
Representatives
Hon. James Moeller
Former Arizona Supreme
Court Justice
Ms. Patricia Orozco
Yuma County Attorney
Hon. Michael D. Ryan
Arizona Supreme Court Justice
Senator Tom Smith
Arizona State Senate
Mr. Lee Stein
Fennemore Craig
Mr. John Stookey
Osborn Maledon PA
Mr. Steven Twist
Viad Corporation.
Mr. Rick A. Unklesbay
Pima County Attorney’s Office
George Weisz
Executive Assistant to the
Governor
Ms. Lois Yankowski
Pima Cty Assistant Legal
Defender, Appeals Section
The Commission acknowledges the following dedicated staff members from the Arizona Attorney General’s
Office who participated in Commission discussions and assisted in preparing this Report: Dennis Burke,
Kent Cattani, Patrick Cunningham, Timothy Geiger, Michael Haener, Diane Saunders, and Pati Urias.
A Data/Research Subcommittee was the first of four subcommittees formed and was charged with
compiling empirical data relating to the death penalty process. A Pre-Trial Issues Subcommittee, a Trial
Issues Subcommittee and a Direct Appeal/PCR Subcommittee were each charged with analyzing issues
relevant to the various stages of the death penalty process and to make recommendations to the
Commission.
The Data/Research Committee, chaired by Dr. Peg Bortner, Director of the College of Public Programs’
Center for Urban Inquiry at Arizona State University, prepared two data sets relating to the death penalty
process in Arizona. Data Set I (Attachment “B”) provides a statistical analysis of all cases in which a
defendant was sentenced to death between 1974 and July 1, 2000. Data Set II (Attachment “C”) offers
a comparative analysis between capital cases charged between January 1, 1995, and December 31, 1999,
and non-capital first-degree murder cases charged during that same period. The Attorney General
commissioned a third study (Attachment “D”) to attempt to estimate the incremental additional costs of
prosecuting, defending and appealing a capital murder case compared to those in a non-capital murder
case.
In March 2001, the Commission released an Interim Report (Attachment “A”) detailing the deliberations
of the subcommittees. After 24 months of study, the Commission releases this Final Report. The report
includes Commission recommendations to improve the fairness and timeliness of the death penalty system,
and the data studies described above. The report also includes Comments submitted by individual
members of the Commission.
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Many of the Commission recommendations were unanimously endorsed by members of the Commission.
Other recommendations reflect a majority view, acknowledging strong differences of opinion on various
issues. Some of the recommendations have already been put into place through legislation or through the
rule-making process. Other recommendations have been rejected because of state budgetary or other
concerns, and a few recommendations were rendered inapplicable when Arizona’s death penalty statute
was changed to provide for jury sentencing in capital cases. The change to jury sentencing resulted from
a 2002 decision by the United States Supreme Court in Ring v. Arizona, 122 S. Ct. 2428 (2002), in
which the Court held that a defendant in a capital case has a Sixth Amendment right to a jury determination
of aggravating circumstances that make the defendant eligible for the death penalty. The Arizona
Legislature enacted the new death penalty statute (Attachment “E”) in an emergency session in August
2002. The new statute significantly changes the landscape of the capital litigation process in Arizona.
Additional study and analysis will be required as the change is implemented across the state.
II. Capital Punishment in Arizona
History
In Furman v. Georgia, 408 U.S. 238 (1972), the United States Supreme Court held that the death
penalty as administered violated the United States Constitution Eighth Amendment prohibition against cruel
and unusual punishment. A majority of the court found that the sentencing authority was not adequately
guided in its discretion when imposing the death penalty, resulting in the death penalty being meted out in
“arbitrary and capricious” ways. The decision effectively declared death penalty laws in 32 states
unconstitutional and removed over six hundred prisoners from death rows around the country, including
Arizona.
The following year, the Arizona Legislature enacted A.R.S. § 13–454, setting forth a new procedure for
death penalty cases. The new statute provided for a separate sentencing hearing to be held before the trial
court, rather than a jury, and enumerated six aggravating circumstances that could be considered in deciding
whether to impose a death sentence: (1) prior conviction for which a sentence of life imprisonment or death
was imposable; (2) prior serious offense involving the use or threat of violence; (3) grave risk of death to
others; (4) procurement of murder by payment or promise of payment; (5) commission of murder for
pecuniary gain; and (6) murder committed in an especially heinous, cruel or depraved manner. The
Legislature subsequently added the following aggravating circumstances: (7) murder committed while in
custody (effective Oct. 1, 1978); (8) multiple homicides (effective Sept. 1, 1984); (9) murder of a victim
under 15 years of age (effective May 16, 1985) or of a victim 70 years of age or older (effective July 17,
1993); and (10) murder of a law enforcement officer (effective Sept. 30, 1988).
The State was then required to prove at least one of these aggravating circumstances beyond a reasonable
doubt before the court could consider imposing the death penalty. If the State proved at least one of the
aggravating circumstances, the defense was permitted to try to establish one of four statutory mitigating
circumstances that were enacted in 1973: (a) the defendant’s capacity to appreciate the wrongfulness of
his conduct was impaired; (b) the defendant was under unusual and substantial duress; (c) the defendant’s
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participation in the crime was minor; or (d) the defendant could not reasonably foresee that his conduct
would cause the death of another person. The court was then required to issue a special verdict setting
forth its findings as to the existence or nonexistence of each of the circumstances set forth in the statute.
The trial court then weighed the proven aggravating and mitigating circumstances and sentenced the
defendant to death if the mitigation did not outweigh the proven aggravation.
In 1976, the United States Supreme Court decided three landmark cases relating to the constitutionality
of post-Furman death penalty statutes. In Gregg v. Georgia, 428 U.S. 153 (1976), the Court upheld
Georgia’s new statute which included statutory aggravating circumstances and required specific findings
as to the circumstances of the crime and the character of the defendant. The Court also found that the new
Georgia statute provided the sentencer with “adequate information and guidance.” In Woodson v. North
Carolina, 428 U.S. 280 (1976), the Court rejected North Carolina’s mandatory imposition of the death
penalty for any first-degree murder convictions. The Court found that the imposition of a mandatory death
sentence without consideration of the circumstances of the crime and the character and record of the
defendant violated the Eighth Amendment’s proscription against cruel and unusual punishment. However,
the United States Supreme Court rejected the argument that the death penalty was per se cruel and unusual
punishment in Proffitt v. Florida, 428 U.S. 242 (1976). In Proffitt, the Court held that the aggravating
factor “especially heinous, atrocious or cruel” was valid as applied, upheld Florida’s statutory procedures
that required the consideration of specific aggravating and mitigating factors by the court, and the imposition
of the death penalty only when aggravating factors outweigh mitigating factors. The Arizona death penalty
statute, which provided for a procedure similar to that in Florida (separate guilt and penalty phases of the
capital trial) was upheld as constitutional by the Arizona Supreme Court in 1976 in State v. Richmond,
114 Ariz. 186, 560 P.2d. 41 (1976).
In State v. Bishop, 118 Ariz. 263, 576 P.2d 122 (1978), the Arizona Supreme Court construed the list
of mitigating circumstances enumerated in A.R.S. § 13–703(G) to be exclusive. Shortly after the Bishop
decision, the Ohio statutory scheme limiting the presentation of mitigation was found to be improper by the
United States Supreme Court in Lockett v. Ohio, 438 U.S. 586 (1978). The Court held that the Eighth
and Fourteenth Amendments require that the sentencer not be precluded from considering as mitigation any
aspect of the defendant’s character or record, and any circumstance of the offense argued by the defendant
as mitigating the sentence to less than death. Consequently, the Arizona Supreme Court in State v.
Watson, 120 Ariz. 441, 586 P.2d. 1253 (1978), held Arizona’s death penalty statute unconstitutional
because of its limitation on the presentation of mitigation. However, the Court found that the
unconstitutional portion of the statute was severable from the constitutional portion, and the Court
remanded the case to allow the defendant to present any circumstance showing why the death penalty
should not be imposed. After the Court’s decision in Watson, all prisoners on death row were remanded
for new sentencing hearings to allow presentation of any evidence tending to mitigate the sentence as
described in Lockett.
In 1979, following the Arizona Supreme Court’s decision in Watson, the Arizona legislature amended
A.R.S. § 13–703(G) to allow either the State or the defendant to introduce into evidence any factor
relevant in determining whether to impose a sentence less than death. In 1993, A.R.S. § 13–703(A) was
amended to provide for a sentence of natural life, as an alternative to life imprisonment with the opportunity
for parole after 25 years in prison.
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InAdamson v. Ricketts, 865 F.2d 1011 (9th Cir. 1988), the United States Court of Appeals for the Ninth
Circuit ruled that the Arizona death penalty statute was unconstitutional as imposed. The court’s ruling was
based on a denial of the defendant’s right to jury sentencing, the arbitrariness of the aggravating
circumstance of “especially heinous, cruel or depraved,” the limitation on the sentencing court’s
consideration of mitigating circumstances, and the statutory presumption of death. The United States
Supreme Court denied certiorari in Adamson, but granted review in Walton v. Arizona, 497 U.S. 639
(1990), to address similar issues. In Walton, the Court upheld Arizona’s death penalty statute and
specifically ruled that a judge, rather than a jury, can find aggravating circumstances and that the “especially
heinous, cruel or depraved” circumstance provided sufficient guidance to satisfy the Eighth and Fourteenth
Amendments.
In Ring v. Arizona, 122 S. Ct. 2428 (2002), the United States Supreme Court overruled Walton to the
extent that it authorized a judge, rather than a jury, to determine aggravating circumstances that subject the
defendant to the death penalty. In response to Ring, the Arizona legislature enacted a new death penalty
sentencing statute (Attachment “E”) that provides for jury sentencing in capital cases.
The Capital Case
In Arizona, the death penalty may only be imposed for first-degree premeditated or felony murder. The
prosecuting agency handling the case must, within sixty days of the arraignment of the defendant, file a
notice of intent to seek the death penalty under Rule 15.1(g)(1) of the Arizona Rules of Criminal Procedure.
In determining whether to seek the death penalty the prosecutor may weigh many factors in addition to
statutory mitigating factors enumerated in A.R.S. § 13–703(G). The prosecutor may also consider non-statutory
mitigation information offered by the defendant, his family or his counsel, and information offered
by the victim’s family.
Trial Process
Although capital murder trials are similar to any other felony trial, there are some distinct differences. The
trial of a capital case is divided into two separate proceedings. The first is the guilt phase of the trial, at
which the prosecutor presents factual evidence as to the defendant’s guilt for the murder. The second
phase is the sentencing proceeding, at which statutory aggravating circumstances is required to be proved
beyond a reasonable doubt. If that requirement is met, the aggravating circumstances are weighed against
any mitigation evidence proffered on the defendant’s behalf.
Guilt Phase
Once the prosecuting agency has filed the notice of intent to seek the death penalty, the defendant is
assigned a second defense counsel under Rule 6.2 of the Arizona Rules of Criminal Procedure. Only
attorneys meeting the heightened experience and skill standard set forth in Rule 6.8 of the Arizona Rules
of Criminal Procedure can be appointed to represent a defendant in a capital case. However, the
defendant is free to retain counsel of his own choosing.
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In a capital trial, jurors may be “death qualified.” This refers to the process of questioning prospective
jurors on their views of the death penalty and their ability to follow the trial court’s instructions in light of
those views. In this process, jurors may be removed for cause if their opposition to the death penalty will
not allow them to apply the law or view the facts impartially. Jurors who are opposed to the death penalty
will not be removed for cause if they avow that they will conscientiously apply the law to the facts of the
case.
Once the capital murder trial has begun, it proceeds much like any other first-degree murder trial. The rules
of criminal procedure and the rules of evidence apply in the same way they do in all other criminal trials.
Sentencing Phase
Prior to August, 2002, sentencing was handled entirely by the trial judge without jury input. The prosecutor
presented evidence regarding statutory aggravating circumstances and the defense presented evidence of
mitigating circumstances. (The prosecutor could also present evidence of mitigation.) The trial court was
also permitted to consider “victim impact” evidence. At the conclusion of the evidence, the trial judge
issued a Special Verdict, detailing findings regarding aggravating and mitigating circumstances, and setting
forth the sentence to be imposed.
With the enactment of Arizona’s new death penalty statute, the sentencing process now has two phases.
In the first phase, the prosecutor presents evidence relating to aggravating circumstances. If the jury
determines that the State has not established at least one statutory aggravating circumstance, the defendant
is no longer subject to the death penalty. The jury is dismissed and the trial judge decides the appropriate
sentence. If the jury finds that there is at least one aggravating circumstance, the jury remains empaneled
and considers any mitigating evidence presented by the defense or by the State, as well as victim impact
evidence. The jurors then decide whether to impose a death sentence, assessing whether the proffered
mitigation is sufficiently substantial to warrant leniency.
Appeals Process
Direct Appeal
Death penalty cases are automatically appealed to the Arizona Supreme Court. Prior to the enactment of
Arizona’s new death penalty sentencing statute, the Court independently reviewed the propriety of the
death sentence. Under the new statute, the Arizona Supreme Court reviews the conviction and sentence
for error, but does not independently determine whether to impose a death sentence.
Prior to State v. White, 168 Ariz. 500, 815 P.2d. 869 (1991), the Arizona Supreme Court engaged in a
proportionality review of each case to determine whether the death penalty was excessive or
disproportionate. This review is not constitutionally required and the Court no longer conducts such a
review.
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To the extent that the ruling of the Arizona Supreme Court addresses a federal constitutional issue, either
of the parties can appeal a decision of that court directly to the United States Supreme Court by petitioning
for a writ of certiorari.
Post-Conviction Relief
Immediately following the final conclusion of the direct appeal to the Arizona Supreme Court, post-conviction
relief (PCR) proceedings are initiated in the trial court. Post-conviction relief proceedings allow
the defendant to raise claims relating primarily to whether: (1) trial counsel provided effective representation
during the trial and sentencing hearing; (2) there is “newly-discovered” evidence that would have changed
the verdict or sentence had it been presented at the time of trial; and (3) a change in the law that applies
retroactively would probably change the conviction or sentence.
The trial court’s decision on the post-conviction relief claims can be appealed to the Arizona Supreme
Court by either party, and the parties may file a petition for writ of certiorari requesting the United States
Supreme Court to review the decision of the Arizona Supreme Court.
Federal Habeas Corpus
Under 28 U.S.C. § 2254, a state prisoner may seek relief in federal district court on claims that his federal
constitutional rights were violated at trial or at sentencing. A federal constitutional claim may only be raised
in federal court if it has first been raised in a procedurally appropriate manner in state court. During the
federal habeas corpus proceeding, the federal court decides if the state court ruling conflicts with controlling
United States Supreme Court authority.
If the prisoner’s claim was not properly presented in state court, he can still pursue the claim in federal court
if he establishes “cause and prejudice” for his failure to present the claim in state court or that failure to
consider the claim would result in a “fundamental miscarriage of justice,” based on actual innocence or
ineligibility for the death penalty.
The decision of the United States District Court may be appealed by either party. The appeal from the
United States District Court is taken to the United States Court of Appeals for the Ninth Circuit, and the
parties may seek review of the decision of that court by filing a petition for writ of certiorari with the United
States Supreme Court.
Execution
The initial warrant of execution is issued by the Arizona Supreme Court to the Director of the Department
of Corrections after the Court has affirmed the death sentence and either the first PCR proceeding is
concluded or the period of time to file the PCR petition has expired. The warrant designates a twenty-four
hour period for execution of the sentence between thirty-five and sixty days following the issuance of the
warrant. If the initial warrant is stayed by any court, the Arizona Supreme Court is required to issue a
subsequent warrant upon the State’s request after the stay is lifted. Stays of execution will not be issued
upon the filing of subsequent PCR petitions, except upon separate application for a stay made to the
Arizona Supreme Court. The separate application must set forth particular issues appropriate for a
successive PCR petition.
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In 1992, a constitutional amendment was passed by Arizona voters changing the method of execution from
lethal gas to lethal injection. Prisoners sentenced before November 23, 1992, have the choice of either
lethal gas or lethal injection.
Competency to be Executed
In Arizona, a prisoner is not subject to execution if found to be mentally incompetent or pregnant. A
prisoner is not competent to be executed unless the prisoner understands that (1) he/she is being punished
for murder, and (2) the punishment is death.
If the court finds that the prisoner is incompetent, he/she remains in the custody of the Department of
Corrections until the Arizona Supreme Court reviews the trial court’s finding. If the supreme court upholds
the finding of the trial court, the prisoner is transferred to a licensed behavioral health or mental health
facility operated by the Department of Corrections for competency restoration treatment. While the
prisoner is being treated, the sentence is suspended.
The Department of Health Services is responsible for the restoration of competency treatment of the
prisoner. During treatment, the chief medical officer of the State Hospital is required to file status reports
with the superior court at sixty-day intervals until competency is restored. When the Department of Health
Services believed the prisoner has been restored to competency, the prisoner is entitled to a hearing in the
trial court to address the competency issue. Once there is a finding that the prisoner has been restored to
competency, the Arizona Supreme Court orders the issuance of a death warrant.
Clemency
The Arizona Board of Executive Clemency is a five member panel appointed by the governor and
confirmed by the State Senate. The Board reviews all death sentences and determines whether to
recommend to the governor reprieve, commutation or pardon, or to make no recommendation at all. The
Board conducts a hearing in which the defendant and his attorney, the State’s attorneys, and the victim’s
family and friends, as well as the public, are allowed to participate and provide statements regarding the
prisoner and the crime.
If the Board recommends reprieve, commutation or pardon, the governor then has constitutional authority
to grant the recommended relief to the prisoner. The governor may only take such action upon a
recommendation by the Board.
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III. Attorney General’s Capital Case
Commission
The Arizona Attorney General’s Capital Case Commission was charged with reviewing the capital
punishment process in Arizona in its entirety to ensure that it works in a fair, timely and orderly manner.
To that end, the Commission examined the system beginning with the pre-trial process, and continuing
through the trial process and the completion of the appellate process.
The Capital Case Commission was designed to encourage full debate and to enable the subcommittees of
the Commission to work through the intricacies of death penalty litigation in Arizona. Commission meetings
were held between September 2000 and July 2002. All Commission and subcommittee meetings were
open to the public, and members of the public were allowed to speak and present written materials for
consideration.
The Subcommittees
Data/Research Subcommittee:
Commission Members:
Peg Bortner, Chair, Center for Urban Inquiry, Arizona State University
Janet Napolitano, Arizona Attorney General
Michael D. Ryan, Arizona Supreme Court Justice
John A. Stookey, Osborn Maledon
Rick A. Unklesbay, Pima County Attorney’s Office
Other Participants:
Paul Ahler, Maricopa County Attorney’s Office
Dennis Burke, Attorney General’s Office
Kent Cattani, Attorney General’s Office
Patrick Cunningham, Attorney General’s Office
Noel Dessaint, Arizona Supreme Court Clerk
Daryl Fischer, Arizona Department of Corrections
Timothy Geiger, Attorney General’s Office
Donna Hallam, Arizona Supreme Court Staff Attorney
Paul McMurdie, Maricopa County Attorney’s Office
Diane Saunders, Attorney General’s Office
At the inception of the Capital Case Commission, the Data/Research Subcommittee was established to
work in consultation with the Center for Urban Inquiry, College of Public Programs at Arizona State
University to compile empirical data about the death penalty process in Arizona. The Subcommittee
provided available information to the Capital Case Commission, responded to Commission requests for
relevant information, maintained a record of research projects suggested by Commission deliberations,
assessed the feasibility of further research, and assisted in the preparation of Commission recommendations.
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Dr. Peg Bortner, Director of the Center for Urban Inquiry at Arizona State University, chaired the
Data/Research Subcommittee for the Commission and designed research methods for the study of
Arizona’s capital cases in Data Sets I and II. The work on Data Sets I and II was performed through
services provided without charge by Dr. Bortner, Dr. Andy Hall, and their colleagues at the Center for
Urban Inquiry. The Attorney General and the Commission are deeply grateful for these services.
The Data/Research Subcommittee began meeting in the summer of 2000, and devised three areas of
empirical research to be completed:
• Data Set I examines the characteristics of the 230 Arizona death penalty cases from 1974 through
July 1, 2000 and focuses on:
< the number and type of aggravating and mitigating factors found to exist by sentencing
judges;
< the number and type of conviction and sentence related remands, reversals or
modifications in the appellate process of the cases;
< case outcomes;
< time intervals for key junctures in the sentencing and appellate process; and
< defendant and victim profiles, including relationships between victims and defendants, and
group characteristics such as age, race/ethnicity, gender, and county of residence.
The Center for Urban Inquiry produced a Report to the Commission on Data Set I entitled
“Summary of Death Sentence Process: Data Set I Research Report to Arizona Capital Case
Commission, March 2001,” (Attachment “B”). The Data/Research Subcommittee also made
recommendations which, if implemented, would better capture this same data in the future in
superior court clerks’ offices, prosecuting attorneys’ offices and within the Office of the Attorney
General. The Attorney General’s Office intends to keep Data Set I updated.
• Data Set II is the study of all first-degree murder cases charged during a five-year period, January
1, 1995 through December 31, 1999 in all 15 counties and focuses on:
< indictments and sentencing;
< time intervals;
< co-defendants’ characteristics; and
< defendants’ characteristics.
In a randomly-selected 62 percent of those cases, research was sought on:
< prior criminal record;
< type of defense counsel;
< mental/behavioral health issues; and
< victim characteristics.
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Data Set II follows the paths taken in first-degree murder cases. It displays all indictments over
that five-year period, cases where death was noticed, the number of cases that went to trial, the
cases that resulted in convictions, and of those, the cases where the death sentence was imposed.
The Center for Urban Inquiry produced a Report to the Commission on Data Set II entitled
“Summary of First-degree Murder Cases, 1995-1999: Data Set II Research Report to Arizona
Capital Case Commission” (Attachment “C”). The Data/Research Subcommittee also made
recommendations which, if implemented, would better ensure that this same data is captured in
the future in superior court clerks’ offices, prosecuting attorneys’ offices, and within the Office of
the Attorney General. The Center for Urban Inquiry intends to keep Data Set II current.
• Data Set III was conducted by Dr. Linda Williams of The Williams Institute under contract with
the Office of the Attorney General. It is a smaller exploratory study of 30 cases and is an attempt
to estimate the incremental costs of first-degree murder cases where the death penalty was sought
and not sought. The study attempted to capture the following activities in each of the 30 cases:
< the number of pretrial/trial motions filed and Arizona Superior Court minute entries
recorded;
< the number and cost of trial-related psychiatric/medical evaluations and exams;
< the number and cost of trial-related special investigators;
< the length and cost of jury trial;
< the length and cost of aggravation/mitigation hearings;
< the length of time from indictment to sentencing;
< the cost of trial preparation/trial hours expended by defense and county attorneys; and
< some specific state and county costs associated with appeals.
Research concluded that only a portion of the data sought was available. Due to the small sample
size, concerns were raised as to the “skewness” of the statistics. The habeas stage prosecution
costs are not included. And, with the exception of costs associated with housing defendants from
indictment to sentencing, the report does not reflect the costs of incarceration. Defendants who
were charged with capital murder but ultimately sentenced to life imprisonment or a term of years
are not captured in this study. With these disclaimers, the study, entitled “Case Study on State
and County Costs Associated with Capital Adjudication in Arizona: Data Set III Research Report
to Arizona Capital Case Commission” is included as Attachment “D.”
The Data/Research Subcommittee recommends that mechanisms for more accurately capturing
cost data be implemented and further study be conducted on a larger sample of cases.
Pre-Trial Issues Subcommittee:
Thomas L. LeClaire, Chair, Snell & Wilmer LLP
Paul W. Ahler, Maricopa County Attorney’s Office
James M. Bush, Fennemore Craig
Jose Cardenas, Lewis and Roca LLP
Harold L. Higgins, Jr., Pima County Assistant Public Defender
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Cindy K. Jorgenson, U.S. District Court for the State of Arizona
John A. Loredo. Arizona House of Representatives
Patricia A. Orozco, Yuma County Attorney
Lee Stein, Fennemore Craig
George Weisz, Executive Assistant to the Governor
Issues Before the Pre-Trial Issues Subcommittee:
1. How prosecutors identify cases in which to seek the death penalty
2. The statutory scheme of aggravating circumstances that define which defendants are death eligible
3. The minimum age for imposing the death penalty
4. The issue of mental retardation as it applies to eligibility for the death penalty
5. Residual doubt as a mitigating factor
6. Time lines for filing a notice of intent to seek the death penalty
Trial Issues Subcommittee:
David R. Cole, Chair, Maricopa County Superior Court Judge
Steven F. Conn, Mohave County Superior Court Judge
Jaime Gutierrez, Former Arizona State Senator
Charles R. Hastings, Former Yavapai County Attorney
Marilyn Jarrett, Arizona Senator
Christopher Johns, Maricopa County Deputy Public Defender
Michael D. Kimerer, Kimerer & LaVelle
Gail Leland, Director, Homicide Survivors
John A. Stookey, Osborn Maledon PA
Rick A. Unklesbay, Pima County Attorney’s Office
Issues Before the Trial Issues Subcommittee:
1. Trial defense attorney competence
2. Time lines for disclosure of intent to seek the death penalty
3. Conduct of an aggravation/mitigation hearing and death penalty sentencing
4. The use of mitigation experts in preparation of the defense case
5. The need for adequate trial defense attorneys for indigent defendants in Arizona
6. The issue of delay in investigating and trying a capital case in the trial courts
Direct Appeal/PCR Subcommittee:
Michael D. Ryan, Chair, Arizona Supreme Court Justice
Paul J. Babbitt, Jr., Coconino County Board of Supervisors
Peg Bortner, Center for Urban Inquiry, Arizona State University
Chris Cummiskey, Arizona State Senate
Stanley G. Feldman, Arizona Supreme Court Justice
Charles Krull, Maricopa County Deputy Public Defender
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James Moeller, Former Arizona Supreme Court Justice
Tom Smith, Arizona State Senate
Steven J. Twist, Viad Corporation
Lois Yankowski, Pima County Assistant Legal Defender
Issues Before the Direct Appeal/PCR Subcommittee:
1. Qualifications for an appellate defense attorney
2. The need to provide an adequate number of attorneys to handle PCR proceedings in Arizona
capital cases
3. The long time intervals in processing capital appeals in Arizona
4. The need for a trial and appellate public defender office in Arizona
5. Ariz. R. Crim. P. 32 governing PCR proceedings
6. Whether Arizona needs to change its procedures to be able to “opt in” under the Federal Anti-
Terrorism and Effective Death Penalty Act of 1996
The Interim Report
On July 30, 2001, the Capital Case Commission produced an Interim Report (Attachment “A”) that
provided a summary of the issues and detailed the deliberations and recommendations returned by the
subcommittees and the Commission. The Interim Report offers more detail on subcommittee deliberations
than is contained in this Final Report.
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IV. Capital Case Commission
Deliberations and Recommendations
1. Capital Litigation Resources Legislation
In 2001, eight capital cases were being delayed at the post-conviction relief (“PCR”) stage because no
qualified lawyers were available to represent the defendants. Some of those defendants had been waiting
for over 18 months for a lawyer to be appointed to represent them at the PCR stage, which must be
completed before a defendant pursues the final layer of appeals in federal court. Exhibit 28 of the Data Set
I Research Report (Attachment “B”) shows time intervals for the PCR process. Upon the
recommendation of the Direct Appeal/PCR Subcommittee, the Commission initially endorsed draft
legislation that would create a statewide capital public defender office to represent indigent capital
defendants in post-conviction relief proceedings.
At a subsequent meeting, the Commission considered information provided by the defense bar, trial judges,
and prosecutors regarding the need for a statewide public defender office for capital cases at the trial level,
particularly in rural counties. The Commission noted the difficulty recruiting public defenders in the rural
counties and the lack of resources needed to bring competent lawyers from urban areas into the rural areas
for capital defense work. The Commission was unanimous in its belief that establishing a statewide public
defender office for capital cases would be the best and most effective way to improve death penalty trials
in Arizona. Legislation was drafted that would include both trial defenders for rural Arizona and PCR
defenders for all of Arizona. The proposed bill was submitted to the 2001 and 2002 State Legislative
Sessions, but failed.
The Capital Case Commission reaffirms the following statement:
The Commission unanimously agrees that additional resources must be made available for
capital cases and it deeply regrets the Legislature did not address this need this year. The
objective of the Capital Case Commission “is to review the capital punishment process in
Arizona in its entirety to ensure that it works in a fair, timely and orderly manner.” A
necessary condition of a “fair” capital system is competent defense representation. A
necessary condition of a “timely and orderly” capital system is adequate resources for
defense counsel and for prosecutors in cases where the death penalty is sought. The needs
are particularly acute for defense counsel in all post-conviction relief proceedings, and for
prosecutors and defense counsel at the trial level in the rural counties. The Commission
therefore urges the Legislature to consider and pass legislation appropriating monies for
capital litigation resources at the earliest possible opportunity.
The Capital Case Commission strongly recommends that resources legislation be reintroduced and adopted
in the 2003 Regular Legislative Session.
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2. Audio or Video Recording of Interviews
The Commission deliberated regarding the issue of electronic recording of police interrogations. Some
states require audio or video recording of interrogations and confessions based on court decision or statute.
While there was discussion as to whether the adoption of a recording requirement is best dealt with by
voluntary action of law enforcement agencies, the Trial Issues Subcommittee concluded that routine
electronic recording of all custodial interrogations and confessions would be a major improvement in
criminal procedure and should be encouraged.
Upon recommendation of the Capital Case Commission, the Attorney General’s Office drafted a protocol
that was considered and discussed by the Attorney General’s Law Enforcement Advisory Board, which
represents police agencies across Arizona. The Advisory Board agreed to submit the protocol to the
Arizona Criminal Justice Commission for consideration. The proposed protocol follows:
The Attorney General and the Capital Case Commission strongly recommend that law
enforcement officers in Arizona record with audio tape or video tape the process of
informing a suspect of his constitutional rights, the waiver of those rights by the suspect,
and all questions and answers of that suspect during interrogation whenever feasible.
Under the protocol, if the questioning occurs in a place of detention such as a police
department, a sheriff’s substation, or jail, the need for audio or video recording of the
interrogation is even more pressing. However, even in these circumstances the discretion
of the law enforcement officer is employed and recording should take place whenever
feasible.
3. Minimum Age For Capital Punishment
The United States Supreme Court has held that the United States Constitution does not prohibit the
execution of defendants who were 16 years or older when they committed a murder. The federal
government, and many states have imposed age 18 as the minimum at which a defendant is eligible for the
death penalty. The United Nations and the American Bar Association recommend the higher minimum age.
Arguments in favor of changing the minimum age from 16 to 18 in Arizona are similar to those advanced
in opposition to executing persons with mental retardation. A child or adolescent normally does not
possess the level of moral responsibility and culpability that society expects of an adult. Arguments against
enacting a minimum age center primarily on the fact that the defendant’s age is already being considered
to be a significant mitigating circumstance; the only cases involving 16 or 17-year-old defendants sentenced
to death in Arizona have been ones with particularly egregious aggravating circumstances.
The Commission recommended by a vote of 15 to 8 that the death penalty in Arizona not apply to
defendants who were under the age of 18 at the time of the murder. Legislation introduced in the 2002
State Legislative Session that would make defendants under the age of 18 at the time of their crime
ineligible for the death penalty failed. It is anticipated that similar legislation will be reintroduced in the 2003
Regular Legislative Session.
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4. Mental Retardation
The death penalty is meant to be reserved for the most culpable offenders. Many believe that mentally
retarded persons do not fall into the “most culpable” category. Some persons with mental retardation suffer
from substantial disabilities affecting reasoning, cognitive functioning, control of impulsivity, and
understanding of the basic relationship between cause and effect. Some argue that these disabilities hamper
a defendant’s ability to act with the level of culpability that would justify imposition of a death sentence.
Initial deliberations resulted in a recommendation from the Pretrial Issues Subcommittee, with some dissent,
prohibiting the execution of defendants with mental retardation. Later, the Commission debated whether
current law, e.g., competence to stand trial, the insanity defense, a rigorous mitigation hearing and the
competence to be executed statute, provided adequate safeguards to ensure that a mentally retarded
person would not be executed in Arizona. Ultimately, the Commission reached consensus that, as a matter
of public policy, Arizona should not execute a defendant who is mentally retarded. The Commission also
recommended, with dissent, that a statute be enacted ensuring that the mentally retarded are not eligible
for the death penalty. Legislation codifying this recommendation was signed into law on April 26, 2001.
The legislation requires a pre-trial screening for mental retardation in capital cases.
On June 20, 2002, the United States Supreme Court held that the execution of a mentally retarded
defendant violates the Eighth Amendment to the U.S. Constitution. Atkins v. Virginia, 122 S. Ct. 2242
(2002). Arizona’s new statute remains significant, however, in that it provides a mechanism to ensure that
the issue of mental retardation is considered early in the proceedings.
5. Notice of Intent to Seek the Death Penalty Under Ariz. R. Crim. P.
15.1(g)(1)
On January 30, 2001, the Commission heard reports from both the Pre-Trial Issues Subcommittee and the
Trial Issues Subcommittee recommending amendment of Rule 15.1(g) of the Arizona Rules of Criminal
Procedure to extend the time for prosecutors to file a notice of intent to seek the death penalty. The
Commission agreed and recommended that Rule 15.1 be amended to extend the time for filing of death
penalty notices to 60 days after arraignment with an additional extension of time available by stipulation
from the parties and approval of the superior court judge. This rule change is intended to allow the
prosecutor to consider mitigating evidence presented by the defense before filing the notice and to allow
the prosecutor more time to deliberate over the decision whether to seek the death penalty.
The Commission’s recommendations for changes to Rule 15.1(g) was adopted by the Arizona Supreme
Court effective June 1, 2002.
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6. Selection of Capital Cases
On March 28, 2001, the Commission received and approved the Pre-Trial Issues Subcommittee’s
unanimous recommendation that all prosecuting agencies involved in capital case prosecution adopt a
written policy for identifying cases in which to seek the death penalty. Such policies should include soliciting
or accepting defense input before deciding to seek the death penalty. This recommendation will be
submitted to the Arizona Prosecuting Attorneys’ Advisory Council for consideration.
7. Competence of Counsel
The Commission deliberated extensively on the issue of competence of counsel in capital cases. The
Data/Research Subcommittee identified the number of cases that were overturned based on ineffective
assistance of counsel from 1974 through 2000, and reported in Exhibit 24 of the Data Set I Research
Report that 19 defendants received a reversal, remand, or modification in their case based on ineffective
assistance of counsel. Of the 19, 13 were granted resentencings and 6 defendants were granted new trials.
For a review of the issues cited as the basis for reversals, remands and modifications for all 230 cases in
Data Set I, see Exhibit 14 of the Data Set I Research Report, Attachment B.
There was initial support for a peer review program for capital defense attorneys. However, peer review
was deemed too subjective, and was ultimately rejected. Commission members urge Superior Court
judges to verify early in a capital case that counsel are competent under the standards in Rule 6.8.
Commission members also urge judges to hold hearings, if necessary, to advise defendants regarding
competency of counsel, as is done when issues arise regarding possible conflicts of interest on the part of
defense counsel.
The Commission also addressed whether a finding of ineffective assistance of counsel should result in the
mandatory reporting of that attorney to the State Bar, the mandatory removal of that attorney from the list
of eligible attorneys to be appointed under Rule 6.8, or reporting to the county’s appointing authority for
indigent defense. On March 28, 2001, the Trial Issues Subcommittee recommended against mandatory
reporting of defense attorneys when there is a finding by a court of ineffective assistance of counsel. There
is already a duty incumbent on lawyers and judges to report ethical violations under Ethical Rule 8.3 of the
Rules of Professional Responsibility. The Subcommittee noted that the reporting under Ethical Rule 8.3
is done on a case-by-case basis, and that a particular finding of ineffective assistance of counsel by a trial
or appellate court may not correspond to an ethical violation. The Commission approved this
recommendation.
The Trial Issues Subcommittee recommended, and the Commission concurred, that Ethical Rule 1.1 should
be amended to include a provision regarding the competence of lawyers representing capital defendants
as follows:
A lawyer shall provide competent representation to a client. Competent representation
requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for
the representation. A LAWYER WHO REPRESENTS A CAPITAL DEFENDANT
SHALL COMPLY WITH THE STANDARDS SET FORTH IN ARIZ. R. CRIM.. P.
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6.8 REGARDING STANDARDS FOR APPOINTMENT OF COUNSEL IN
CAPITAL CASES.
The Subcommittee and the Commission also recommended that the Comment to Ethical Rule 1.1 be
amended to include this best practice advice:
BECAUSE THE AMERICAN BAR ASSOCIATION GUIDELINES FOR THE
APPOINTMENT AND PERFORMANCE OF COUNSEL IN DEATH PENALTY
CASES RECOMMEND TWO LAWYERS BE ASSIGNED TO EVERY CAPITAL
CASE, LAWYERS SHALL ENSURE THAT TWO LAWYERS REPRESENT EVERY
CAPITAL DEFENDANT WHENEVER FEASIBLE IN TRIAL PROCEEDINGS.
The Arizona Bar Association’s Ethical Rule Review Group considered the Commission’s recommendations
on competence and recommended an additional Comment in ER 1.1. The Ethical Rule Review Group also
made several changes to the ethical rules governing the obligations of supervisors in public law offices. On
November 22, 2002, the Board of Governors approved these changes and forwarded them to the Arizona
Supreme Court recommending that they be adopted. Public comment will take place in 2003 on the Board
of Governors proposed rules which are reprinted as Appendix “A.”
8. Legal and Judicial Education
The Trial Issues Subcommittee recommended to the Commission that Rule 45(a) of the Rules of Arizona
Supreme Court be amended regarding continuing legal and judicial education. The proposed amendment
would require (1) prosecutors to have at least six hours of continuing legal education in capital litigation,
including education in ethical duties within the preceding three years of being assigned a capital case; and
(2) judges to have at least six hours of judicial education in capital litigation within the preceding three years
of being assigned a capital case. The Attorney General will prepare a Petition to amend Rule 45(a) for
submission to the Arizona Supreme Court on behalf of the Capital Case Commission.
9. Mitigation Specialists
The Commission approved the Trial Issues Subcommittee’s recommendation to amend Rule 15 of the
Arizona Rules of Criminal Procedure to provide for the appointment of investigators and expert witnesses
for indigent defendants. This amendment will allow capital defendants to obtain mitigation specialists at
county expense in all capital cases at the beginning of the case. The Attorney General’s Office submitted
the proposed amendment, which was adopted with minor modifications by the Arizona Supreme Court.
The modifications related primarily to the Commission’s recommendation that there be a prohibition against
ex-parte requests for mitigation specialists. The final version of Rule 15.9, which became effective
December 1, 2002, provides as follows:
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Rule 15.9 Appointment of Investigators and Expert Witnesses for Indigent Defendants
a. An indigent defendant may apply for the assistance of an investigator and expert
witness, and in a capital case an indigent defendant may also apply for the
appointment of a mitigation specialist, to be paid at county expense if the defendant
can show that such assistance is reasonably necessary to present a defense
adequately at trial or sentencing.
b. No ex parte proceeding, communication, or request may be considered pursuant
to this rule unless a proper showing is made concerning the need for confidentiality.
Any such proceeding, communication, or request shall be transcribed and made
a part of the record available for appellate review.
c. As used in the Rule, a “mitigation specialist” is a person qualified by knowledge,
skill, experience, or other training as a mental health or sociology professional to
investigate, evaluate, and present psycho-social and other mitigating evidence.
10. Proposed Reforms to Rules 31 and 32 of the Arizona Rules of
Criminal Procedure
The Commission considered reforms to Rules 31 and 32 to eliminate some of the prolonged time intervals
in these appellate proceedings. The Commission noted that the Arizona Supreme Court’s most recent
changes to Rule 32 included a Comment specifically stating that:
The Supreme Court did not have the benefit of the comments of a statewide Commission
which was empaneled that year by the Attorney General of Arizona to investigate and
assess the administration of the death penalty in the State of Arizona. Accordingly, further
amendments to Ariz. R. Crim. P. 32 may be necessary following the issuance of that
Commission’s recommendations. In particular, the topics of deadlines and victims’ rights
may need to be addressed at that time.
The Commission also considered victims’ rights to a “prompt and final conclusion of the case after
conviction and sentence” under the Arizona Constitution in Article 2, Section 2.1(10). The Commission
tried to balance that right with the defendant’s right to a fair appellate process, including adequate
preparation time. Unable to reach consensus, the Commission asked the Direct Appeal/PCR Subcommittee
to reconvene on the issue of the victim’s right to a prompt and final conclusion in criminal cases and to
debate any other rule changes to Rules 31 and 32 that specifically relate to the death penalty and that could
reduce time intervals in the appellate process.
The Direct Appeal/PCR Subcommittee addressed whether a victim should have an opportunity to be heard
in all appellate proceedings where there is a request for an extension of time. After hearing input from the
Subcommittee, the Commission deliberated on two proposed Amendments to Rules 31.27 and 32. The
Commission unanimously recommended the following rule change regarding appellate extensions:
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In any capital case, in ruling on any request for an extension of a time limit set in this
rule, the court shall consider the rights of the defendant and any victim to prompt
and final resolution of the case.
Comment: To implement the victim’s right to a prompt and final conclusion of the
case, see Ariz. Const. Art. 2, § 2.1(A)(10), the victim shall be permitted to file a
statement with the court, at the inception of the proceeding, which expresses their
views with respect to any extensions. Or, the victim can request, pursuant to A.R.S.
§ 13-4411, that the prosecutor’s office communicate the victim’s views to the court
concerning any extensions.
The Arizona Supreme Court adopted this proposed change, effective June 1, 2002.
The Commission also considered a substitute motion proposed by Commission member Steve Twist that
would create a victim’s right to be heard in appellate motions for extensions of time. The Commission
defeated the following proposed rule by a vote of 11 to 8.
In any capital case, in ruling on any second or subsequent request for an extension
by a party of more than 30 days, the court, after giving any victim who has filed a
request pursuant to A.R.S. 13-4411, the opportunity to be heard in writing, shall
consider the rights of the defendant and the rights of any victim to a prompt and
final conclusion of the case.
Comment: To implement the victim's right to a prompt and final conclusion to their
case, see Ariz. Const. Art. 2, § 2.1(A)(10), the victim, upon request, shall be
permitted to be heard in writing with respect to any lengthy or repetitive extensions
or the victim can request that the prosecutor's office communicate the victim's views
to the court concerning any extensions.
11. Jury Deliberation in Capital Cases
In May 2000, Judges B. Michael Dann, Michael Brown, Robert Myers and Barry Schneider filed, on
behalf of the Supreme Court Committee on the More Effective Use of Juries, a Petition to Amend
Arizona’s Rules of Court relating to juror discussions of the evidence during trial. The proposed rule
change would allow jurors in criminal cases to deliberate before receiving final instructions by the trial judge
at the close of the case.
The Trial Issues Subcommittee disagreed with the proposed amendments, reasoning that the sequence
might give the prosecution an unfair advantage. The Subcommittee further noted that the United States
Supreme Court has not approved such early deliberations in criminal cases. The Commission concurred
with the recommendation of the Trial Issues Subcommittee and instructed the Attorney General’s Office
to submit comments opposing the Petition to Amend. Comments were filed and appear in Appendix D of
the Interim Report. The Arizona Supreme Court denied the petition to amend the criminal rules.
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12. When a Peace Officer is Murdered
On March 28, 2001, the Commission heard a report from the Pre-Trial Issues Subcommittee regarding
aggravating factors. The Subcommittee reported that the current statute provides for the possibility of
capital punishment only in those cases in which “the murdered person was an on duty peace officer who
was killed in the course of performing his official duties. . . .” A.R.S. § 13–703(F)(10). If a police officer
were murdered because of his status as a police officer, but the officer was in an off-duty capacity, current
law would not authorize capital punishment. By a vote of 7 to 1, the Subcommittee recommended
extending the aggravating factor to include peace officers killed while not performing official duties as long
as the murder was motivated by the peace officer’s status. The Commission approved the recommendation
and proposed language (see Interim Report, Appendix D) that was brought before the Attorney General’s
Law Enforcement Advisory Board for consideration. After extensive deliberation, however, the Attorney
General’s Law Enforcement Advisory Board rejected the recommendation based on its view that the
additional aggravator is not necessary.
13. Victim Impact at Aggravation/Mitigation Hearings
The Commission deliberated on the capital sentencing process and the need to ensure that victim impact
evidence is presented to the court along with the defendant’s allocution at a time when the court may
thoughtfully consider such evidence prior to sentencing. The Trial Issues Subcommittee recommended to
the Commission that trial judges hear victim impact evidence during the aggravation and mitigation hearing
before sentencing the defendant and filing the special verdict. The Trial Issues Subcommittee also
recommended an amendment to Rule 26.3 of the Arizona Rules of Criminal Procedure, the Comment to
that Rule, and Administrative Order 94–16, to ensure that capital case sentencing is conducted in a proper
sequence. The Subcommittee’s proposed rule, comment, and order appear in Appendix B of the Interim
Report.
On May 15, 2001, the Commission edited the proposed amendments to Rule 26.3 to allow the victim to
“be heard” at the aggravation and mitigation hearing, to allow the defendant the right of allocution and to
require the court to set a sentencing date no earlier than seven (7) days after the aggravation/mitigation
hearing in order to properly reflect on the events of the hearing.
The Capital Case Commission’s proposed changes to Rule 26.3 were adopted by the Arizona Supreme
Court effective June 1, 2002. However, the changes relating to the timing of the aggravation/mitigation
hearing have been rendered inapplicable because of the statutory change to jury sentencing in capital cases
following the Ring decision.
14. Residual Doubt in Sentencing
On March 28, 2001, the Commission received and approved the Pre-Trial Issues Subcommittee’s report
stating that residual doubt should not be added to Arizona’s list of statutory mitigators found in A.R.S. §
13–703(G) largely because the strength of the government’s proof of guilt may already be considered
during the sentencing phase of a capital case.
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At the January 22, 2002 Capital Case Commission meeting, Arizona Supreme Court Justice Stanley
Feldman urged the Commission to reconsider making “residual” or “lingering doubt” a statutory mitigating
circumstance. Both the Pretrial Issues and Direct Appeal/PCR Subcommittees agreed to re-examine the
issue.
Current law appears to provide a basis for considering, as non-statutory mitigation, the strength of the
government’s case and residual doubt as to guilt. See State v. Verdugo, 112 Ariz. 288, 292, 541 P.2d
388, 392 (1975), and State v. Pandeli, 200 Ariz. 365, 26 P.2d 113 (2001). The Commission declined
to recommend making residual or lingering doubt a statutory mitigating circumstance.
15. Clerks of Court and Court Reporters’ Procedures
In its February and March, 2001 meetings, the Commission considered the prolonged time intervals in the
direct appeal process for capital cases. These time intervals are depicted in Exhibits 25, 27 and 30 of the
Data Set I Research Report. The Commission heard a report from the Direct Appeal/PCR Subcommittee
regarding delays in the system due to missing court documents, pleadings and exhibits, and the difficulties
in obtaining transcripts of trial proceedings. The Subcommittee met with elected court clerks and with court
reporters from around Arizona.
On March 28, the Direct Appeal/PCR Subcommittee made three recommendations which were approved
by the Commission. First, the Commission recommends amending Rule 31.9 of the Arizona Rules of
Criminal Procedure so that the clerk of the court in capital cases will be required to notify all court
reporters, within ten days of the filing of the notice of appeal, to compile all transcripts for submission to
the Clerk of the Supreme Court. This rule change is designed to give the court reporters more timely notice
and to expedite preparation of transcripts. Secondly, the Commission recommends as a best practice that
trial judges order the transcription of all trial proceedings in every first-degree murder case at the time a
guilty verdict is returned. This will cause reporters and clerks to begin the transcription process and the
process of gathering exhibits, pleadings and minute entries well before the sentencing date. This practice
will expedite transmission of the record in a capital case, and will hopefully preserve the record in a more
disciplined fashion.
Thirdly, the Commission recommends as a best practice that superior court clerks enter a code on all
criminal calendars that clearly identifies all first-degree murder cases for use by reporters and court clerks.
No matter what code the local clerk ultimately selects, the calendar will communicate to the court reporter
and to the courtroom clerks that the matter is potentially a capital case and that records should be
assembled early and safeguarded with the utmost care. Court reporters will then know that transcripts must
be readily available immediately after sentencing because the record in all capital cases must be sent to the
Supreme Court within 45 days after the filing of the notice of appeal. The courtroom clerks will be put on
notice that because this is a capital case, the attorneys will later request every piece of paper, pleading and
minute entry in the case to ensure that the law was followed in the litigation of the case. The Commission
concluded that these reforms will help to eliminate some of the prolonged time intervals in the capital case
appellate process. The Commission’s proposed Rule 31.9 is reprinted in Attachment A, Appendix D,
paragraph 11.
The Capital Case Commission’s recommended changes to Rule 31.9 were adopted by the Arizona
Supreme Court effective June 1, 2002.
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16. File Repository
The Commission debated the issues of prolonged intervals in PCR proceedings (depicted in Exhibits 25,
28 and 31 of the Data Set I Research Report, Attachment B), and adopted two recommendations in this
regard. The Commission recommends that a repository be created in each county for all trial and appellate
defense files so that PCR counsel can readily locate files from one location. The repository must be
controlled by the defense team, and strict confidentiality must be maintained.
Additional discussion is needed with court administrators, prosecutors and defense counsel in order to
implement this recommendation.
17. Competency to be Executed
The Commission first heard a report on the issue of competency to be executed on January 30, 2001, from
Mr. James Bush on behalf of the Pre-Trial Issues Subcommittee. The Commission considered Mr. Bush’s
written recommendations and heard a three-part recommendation from the Pre-Trial Issues Subcommittee.
First, the Pre-Trial Issues Subcommittee recommended that the Commission consider and debate a
proposal that defendants found mentally incompetent after the issuance of a death warrant have their
sentences converted to life imprisonment. The Subcommittee reported that this factual scenario would arise
in the context of a judicial competency hearing in which the defendant is found incompetent and will not
regain competency. Second, the Subcommittee recommended that the Commission consider and debate
the current standards applicable to incompetence to determine if the standards as currently applied require
modification. Third, the Subcommittee recommended that the Commission consider changes to the statute
under which Arizona conducts restoration to competency, A.R.S. §§ 13–4021 through 4024.
On February 28, 2001, the Commission again discussed the issue of competency to be executed. The
Commission asked the Pre-Trial Issues Subcommittee to reconsider the issue and make a recommendation.
On March 28, 2001, the Commission heard the report from the Pre-Trial Issues Subcommittee which
reflected substantial debate at two meetings on March 13 and March 20, 2001. The Subcommittee
reported that it had debated a Maryland statute that provides that a death sentence must be commuted to
life imprisonment if a defendant becomes incompetent after being sentenced to death. The Subcommittee
also considered whether Arizona doctors should be prohibited from treating any defendant facing capital
punishment so that Arizona policy would reflect that no restoration to competency may take place. The
Subcommittee voted 6 to 3 with one abstention to present the following recommendation to the
Commission.
The Pre-Trial Issues Subcommittee recommends to the Commission that Arizona change
its legislation to require the commutation of a death sentence to the maximum sentence
lawfully imposeable when the defendant is found incompetent after the issuance of a death
warrant.
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After deliberation, the Commission voted 12 to 8 with one abstention to accept the subcommittee’s
recommendation. Legislation was introduced in the 2002 State Legislative Session but failed. It is
anticipated that similar legislation will be reintroduced in the 2003 Regular Legislative Session.
18. Maintaining Capital Case Data
This endeavor was undertaken by the researchers and staff of the Center for Urban Inquiry, College of
Public Programs at Arizona State University, with help from community members, county clerks offices,
county attorney offices, county pretrial services, victim/witness programs, the Department of Corrections,
the Arizona Supreme Court and the Arizona Attorney General’s Office. Results of this comprehensive
study of the death penalty in Arizona are displayed in Data Set I and Data Set II.
After twenty-four months of empirical data collection, it is the recommendation of the Commission that the
Attorney General’s Office and the Center for Urban Inquiry continue to gather data. The Attorney
General’s Office will continue to gather data to update Data Set I; and the Center for Urban Inquiry will
maintain Data Set II.
Several recommendations of the Capital Case Commission require additional study, and the Commission
accordingly recommends that a subgroup of the Data/Research Subcommittee continue to deliberate and
develop processes and protocols to implement Commission recommendations.
19. Preservation of DNA Evidence
The evolution of DNA testing now makes possible effective testing of biological materials left at crime
scenes and comparisons with a defendant’s DNA. This powerful evidence may be incriminating or
exculpatory and can effectively prove guilt or innocence.
The preservation of DNA evidence was deliberated by the Trial Issues Subcommittee and the Direct
Appeal/PCR Subcommittee. The Direct Appeal/PCR Subcommittee noted that A.R.S. § 13–4013
provides for DNA testing along with all other expert witness and investigative services when “reasonably
necessary” to an adequate defense. Further, PCR DNA testing is required under A.R.S. § 13–4240 under
carefully drawn standards enacted by the 2002 Legislature. The Direct Appeal/PCR Subcommittee did
not support further legislation or court rule for the preservation and testing of evidence. Several concerns
were raised with requiring law enforcement to preserve all evidence in every case in which the charge of
murder is being investigated by a police agency. First, sometimes the consumption of all evidence is needed
for a satisfactory chemical analysis and an ironclad rule requiring preservation of all evidence would harm
the need to sometimes use the entire sample to conduct a reliable chemical test. Secondly, if there is an
ironclad rule to keep all evidence in all cases in which first-degree murder is later charged, some defendants
will not be charged with first-degree murder simply because many cases (such as missing person cases)
do not begin as murder investigations.
The Trial Issues Subcommittee, however, noted that it is currently the practice of law enforcement in
Arizona to retain evidence in all unsolved murder cases, as well as in all capital cases for an indefinite period
of time. The Trial Issues Subcommittee therefore recommends to the Capital Case Commission that
legislation be enacted that would require the preservation of all biological materials found at the scene of
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all unsolved homicides and in all capital cases until such time as a defendant can be provided an opportunity
to request DNA testing of that evidence.
The Attorney General’s Law Enforcement Advisory Board deliberated, and not withstanding resource
concerns, did not oppose the recommendation. This recommendation will be presented to the Arizona
Criminal Justice Commission for consideration.
20. Use of the F6 Aggravator
A.R.S. § 13–703(F)(6) provides that it shall be an aggravating factor if the defendant commits murder in
an especially cruel, heinous or depraved manner. Data Set I reveals that of the 228 people sentenced to
the death penalty, 62.7% have the death penalty in place (or have been executed, or the death penalty
reimposed after appeal), 30.3% received a lesser sentence, 3.1% were acquitted, and 3.5% have appeals
pending. Of these 228 people, 39 were sentenced to death based on a finding of the sole aggravator,
(F)(6), cruel, heinous or depraved. The (F)(6) aggravator was the leading single aggravator with (F)(5),
pecuniary gain being second in 11 such cases. Of the 39 cases, 45% were resentenced to death, 38.5%
received a lesser sentence, 5% were acquitted, and 5% have appeals pending.
Some have concluded that these figures indicate a possible abuse of the (F)(6) aggravator and have
questioned whether it is consistently applied and whether the aggravator is overly broad. Others assert that
a review of recent cases indicates that since the enactment of the natural life sentencing option, the number
of cases in which the courts have found the (F)(6) aggravator have decreased.
The Pretrial Issues Subcommittee debated these issues at length and was unable to reach a consensus. The
Subcommittee recommended to the Capital Case Commission that additional study be conducted of the
(F)(6) aggravator that a murder was committed in an especially cruel, heinous or depraved manner.
21. Review of Capital Cases in Which Convictions Were Reversed, or
Sentences Remanded or Modified by the Appellate Court
In December 2000 and January 2001, the Commission agreed on a strategy for the review of cases in
which substantive errors were found by reviewing appellate courts in Arizona. The cases of conviction and
sentence related reversals, remands and modifications are set forth in Exhibit 22 of the Data Set I Research
Report (Attachment “B”).
Of the 141 decisions resulting in a reversal, remand or modification, the Trial Issues Subcommittee decided
to review the 7 cases in which not guilty verdicts were returned upon retrial and to review the 71 cases in
which the defendant was sentenced to life imprisonment or a term of years after retrial or resentencing. The
Commission established a uniform set of guidelines to assist in examining these cases. Commission
members were asked to consider issues such as why the conviction or sentence was reversed; whether the
error is likely to reoccur; whether safeguards were in place at the time of the original trial or have since been
adopted; and whether Commission members recommend changes based on the cases reviewed.
The Trial Issues Subcommittee invited Commission members to join them for an in-depth study of the 78
cases. The goal of the study was to determine whether additional recommendations for reform are needed.
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On August 29, 2001, the Trial Issues Subcommittee held a retreat hosted by John Stookey and Osborn
Maledon to discuss the analyses of the 78 cases in which a death sentence was overturned and the
defendant found not guilty, given life imprisonment or given a term of years on resentencing. At a
subsequent meeting held on March 20, 2002, the Trial Issues Subcommittee discussed the
recommendations from the August 29, 2001 meeting and concluded:
$ It had been proposed that a survey of capital representation be conducted to get a current
snapshot of the death penalty process in Arizona. The Trial Issues Subcommittee later
concluded that the survey as proposed could not be realistically accomplished.
$ That a recommendation be made to the Commission to affirm and emphasize its previous
statement regarding the Legislature’s failure to appropriate the additional resources needed
at the trial and PCR level for capital cases.
$ That a recommendation be made to the Commission that would strengthen and enforce the
Ethical Rules holding supervisors in public defenders= offices responsible for supervising
counsel appointed in capital cases.
$ That a recommendation be made to the Commission that would change Rule 45(a)
Continuing Legal Education Requirements for continuing legal and judicial education for
prosecutors and judges before being assigned a capital case. See Section 8, infra, for the
Commission’s precise recommendation on legal education of lawyers and judges who
work on capital cases.
22. Race-neutral Decisions
Data Set I shows that 69.1% of the defendants sentenced to death in Arizona are Caucasian; 15.7%
Mexican American/Hispanic; 11.3% African American; and 1.7% Native American. Further, we know
that 81.9% of the victims of Caucasian defendants are Caucasian and 60.9% of the victims of defendants
of other races are themselves of other races or ethnicities.
Data Set II indicates that of 260 Caucasian defendants charged with first-degree murder in Arizona over
the past five years, 151 or 58% were noticed for the death penalty, 79 or 52% of those went to trial, 62
or 78% of those were convicted of first-degree murder and 18 or 29% of those received the death penalty.
Conversely, of the 401 minority defendants charged with first-degree murder, 144 or 36% were noticed
with the death penalty, 68 or 47% went to trial, 45 or 66% of those tried were convicted of first-degree
murder and 11 or 24% of those convicted received the death penalty. See Exhibit 15 of Data Set II for
an in-depth analysis of this data.
Some Commission members conclude from these statistics that there does not appear to be a racial bias
in the administration of the death penalty in Arizona. Other Commission members conclude that there may
be a bias based on the race of the victim, or that it is impossible to draw conclusions regarding bias in the
system. (See Comment by John A. Stookey, infra.)
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The Attorney General does not believe the statistics developed by the Data Subcommittee support an
allegation of racial bias in the process. Statistics relating to the race of the victim are not necessarily
informative regarding racism. An analysis of whether race plays a role in the process is more appropriately
focused on the race of the defendant. Statistics developed by the Data Subcommittee show that
Caucasian defendants are treated essentially the same as non-Caucasian defendants from indictment to
conviction and sentencing. The only significant statistical difference noted in the process as it relates to the
race of the defendant is that the conviction rate for Hispanic defendants is lower than that for Caucasian
defendants and for non-Hispanic minority defendants. Caucasians do not appear to be treated more
leniently than non-Caucasians. In fact, a Caucasian defendant who commits a murder similar to that
committed by a non-Caucasian defendant is slightly more likely to receive the death penalty than a non-
Caucasian defendant. Seventeen out of the 22 people executed in Arizona since the State’s death penalty
statute was amended in 1973 were Caucasian, and approximately 70% of the current death-row population
in Arizona is Caucasian. Thus, any suggestion that Arizona’s death penalty process reflects a racial bias
appears to be unwarranted.
Statistics relating to the race of the victim may be misleading because they may relate to the type of murder
committed rather than to the way the defendant is treated in the death penalty process. Some types of
murders are less likely to be pursued as a capital case, not because of the race of the victim, but because
of the nature of the murder. If, for example, a murder occurs during a gang incident, there is less likelihood
of the death penalty being sought or imposed for a number of reasons. There may be some degree of fault
on the part of the murder victim, there may be a problem with the credibility of witnesses to the crime, or
an unwillingness on the part of witnesses to assist with the prosecution. If, as appears to be the case, the
percentage of non-Caucasians involved in gang murders is higher than that for Caucasians, see Appendix
B, Chart prepared by Maricopa County Attorney’s Office, statistics relating to the race of the victim as an
indicator of whether the death penalty will be sought or imposed may be skewed.
Commission members unanimously agree that it is the responsibility of all participants in the criminal justice
system to promote practices that ensure that race-neutral decisions are made regarding defendants and
victims when deciding whether to seek or impose capital punishment, and that participants in the system
should use the empirical data from Data Sets I and II in internal reviews and discussions regarding the death
penalty process.
23. Requests for a Moratorium on the Death Penalty in Arizona
After the United States Supreme Court issued its ruling in Ring v. Arizona finding Arizona’s death penalty
statute unconstitutional, several members of the Commission urged the Commission to recommend a
moratorium on the death penalty in Arizona. Those members of the Commission argued that the likelihood
of error in capital cases, together with uncertainty resulting from the Ring decision, warranted such a
moratorium. See Comment submitted by John A. Stookey, infra. A majority of Commission members,
including the Attorney General, disagreed and declined to recommend a moratorium.
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V. Comments by Commission Members
Commission members were invited to submit Comments to be included in Commission Reports. Some
Comments were previously submitted and are included in the Interim Report attached to this Report. The
Comments presented in the Interim Report and in this Final Report do not represent consensus views of
the Commission and were not circulated for response from other Commission members.
Comments by John A. Stookey. Joined by: Peg Bortner, Jose
Cardenas, Harold Higgins, Michael Kimerer, Charles Krull,
Christopher Johns, and Lois Yankowski
As the Introduction to the Final Report indicates, the issues of whether the death penalty
should be eliminated or a moratorium placed on its imposition were never directly
presented to the Commission. However, it is my strong belief that the confluence of three
factors that were or should have been before the Commission logically leads to the
conclusion that, at a minimum, a moratorium should be imposed until such time as
fundamental flaws in the capital system are corrected. Those factors include:
Data collected by the Commission indicating that:
(a) innocent persons have been wrongfully sentenced to death in Arizona;
(b) the reversal rate in Arizona capital cases is disturbingly high; and
(c) outcomes in capital cases are related in concerning ways to the race of the
victim.
The Commission finding that capital indigent representation is significantly underfunded and
understaffed, combined with Commission data showing that the most common reason for
reversals in capital cases is ineffective assistance of counsel.
The fact that the Commission never looked at the implications of the Ring decision or of
the new statute, which, if anything, would seem to increase the chances of wrong and
inconsistent decision-making.
I. Data collected by the Commission warrant the elimination of the death
penalty in Arizona or at least a moratorium to address whether and how these
problems may be addressed.
A. The Arizona capital system has wrongfully sentenced individuals to
death. The recent total vindication of Ray Krone by DNA evidence and the acceptance
of that vindication by the Maricopa County Attorney’s Office is the most clear and visible
example of the fact that Arizona has wrongfully sentenced people to death. After the
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Krone outcome, the question is not whether, but how many. The Capital Case
Commission data demonstrate that 7 other individuals who were originally sentenced to
death later had their convictions overturned, and were then found not guilty of the
underlying offense on retrial. Additionally, 6 other individuals who were originally
sentenced to death because of evidentiary issues, later had their sentences reduced to time
served and were released from prison.
B. The reversal rate in Arizona capital cases is very high. Capital Case
Commission Data demonstrate that Arizona’s capital cases are reversed at a rate of
approximately equal to 50%. This means there is a 50% chance that a person sentenced
to death will have his or her conviction or sentence overturned on appeal at least once.
C. The imposition of the death penalty is significantly related to the race
of the victim. For the period 1995 to 2000 for all first degree murder indictments for
which data were available to the Capital Case Commission on race of both the victim and
offender, there are significant differences in the way offenders who killed Caucasian victims
are sentenced in comparison to those who killed Hispanic victims. For example, of the
316 first degree murder indictments for the murder of a Hispanic, only one case resulted
in the death penalty. Put another way, only .3% of the 316 Hispanic first degree murder
victims had their offenders sentenced to death. On the other hand, of the 277 Caucasian
victims during the same period, 24 offenders were given the death penalty (8.7%).
The final Commission Report and Recommendations do not in any systematic way
address the significance of these statistics gathered by the Commission itself. I do not
believe that we can continue uninterrupted with a system that has demonstrably sentenced
the innocent to death; has pervasive inconsistency and error, and makes decisions related
in disturbing ways to the race of the victims. These data alone lead me to conclude either
that the death penalty is a failed experiment in Arizona or that we must at least impose a
moratorium to determine whether these flaws can be remedied.
II. Indigent representation is woefully underfunded and understaffed in
Arizona.
The Commission itself recognized this problem and to its credit proposed
legislation in two different sessions to establish a state-wide capital defenders office for
Post-Conviction Relief representation and capital trial representation in the rural counties.
Unfortunately the legislature chose not to pass the legislation. Although the Commission
did not fully study this issue, it would seem irrefutable that with recent budget cuts and
fiscal difficulties, the problems of funding adequate capital representation have indeed
become worse.
These realities must be laid against the data collected by the Commission that the
number one reason for reversals in capital cases is ineffective assistance of counsel. Even
a cursory look behind those numbers shows that this is not merely a story about
incompetent lawyers, but a story about underfunded and understaffed public defender
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offices. The Commission data further demonstrate the significance of these findings
because nearly all capital cases in Arizona involve indigent defendants represented by
public counsel.
The Commission's Final Report indicates that the Commission “regrets” that the
legislature did not do anything to resolve this situation, but does not make any statements
about what we as a state should do in the face of the failure of the legislature to act. I
believe that the only reasonable response to a system that seeks to impose the death
penalty, but is so underfunded as to be unable to make the decision of who should live and
who should die in a fair and equitable way, is to either eliminate that system or at least stop
it until such time as adequate funding is provided.
III. The Commission did not address in any way the implications of the Ring
decision and the new capital statute in Arizona.
The Final Report nearly totally ignores that during the last year the largest change
in recent history in the Arizona death penalty system has occurred. In the wake of the
Ring decision, Arizona’s death penalty statute was declared unconstitutional and replaced
by a new and fundamentally different system. Arizona has now moved from a system
where all capital fact-finding and sentencing was done by a judge to one where all relevant
decisions are made by a jury.
All of the data collected by the Commission were collected with regard to the old
system and there has been no attempt by the Commission to address whether the new
system will increase, decrease, or be irrelevant with regard to the flaws already identified
by the Commission in the capital system. For example, under the new statute, there is a
substantially reduced safety net to prevent wrongful convictions and sentences. Such a
safety net might include: (1) the possibility for the trial judge to override capital sentences;
(2) a life sentence when the jury is hung with regard to appropriate sentence; and (3)
continued de novo independent review by the Arizona Supreme Court. The new statute
provides no opportunity for trial judge override; permits multiple juries when the original
jury is hung on the sentence; and eliminates the longstanding provisions for independent
review by the State Supreme Court.
Similarly, the new statute makes no attempt to reshape aspects of the old system
that were particularly designed for judge sentencing that may no longer be appropriate for
jury sentencing. For example, Commission data show that the especially heinous, cruel,
or depraved aggravator is the most commonly found aggravator to make a defendant death
eligible in Arizona under the old system. Case law on this aggravator has consistently
made it clear that the inherent ambiguity of these terms was not problematic in Arizona
because it was the judge, rather than the jury, that found capital facts. However, now that
the statute calls for the jury to make that decision, it would seem that some attempt must
be made to further define and narrow that aggravator. The Commission did not consider
this issue. Similarly, proportionality review has been eliminated in Arizona, but it would
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seem plausible to consider seriously its reinstitution in the wake of potential inconsistencies
of jury sentencing. Again the Commission has not addressed this issue.
We also now know that the new system will be even more costly to operate than
the old system. Indeed in Maricopa County both the prosecutor and all indigent defense
agencies have asked for substantial supplemental appropriations, which must be
considered in the light of existing budget cuts. The new system will in all likelihood
accentuate the existing problems of indigent capital representation. Again the Commission
did not consider this issue.
Until such an evaluation of the new statute is conducted, I do not believe that we
can, in good faith, say that the capital system should continue in Arizona.
IV. Conclusion.
The members of the Capital Commission have taken a significant step toward
understanding and evaluating the death penalty in Arizona. Most significantly that step has
been to collect data and information about the operation of the system. However, I believe
that the Commission has not completed the work necessary to finish its review. Most
importantly, we have not fully addressed what I believe is the inevitable conclusion that
ours is a fundamentally flawed system; flawed by incorrect decisions; high levels of
inconsistency, inadequate funding for representation; and decisions related to what should
be irrelevant factors, such as the race of the victim. On top of that, we have not looked
at all at the implications of the new system that has been instituted in the wake of Ring.
For these reasons, I respectfully suggest that the only appropriate recommendation
for the Capital Case Commission based upon what we have learned over the last two
years and what we now realize we still don’t know is that, at a minimum, a moratorium
should be imposed within the capital system until we can determine whether the observed
flaws can be eliminated or whether our inability as a society to remedy these flaws should
lead to the abolition of the death penalty in Arizona.
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VI. CONCLUSION
Attorney General Napolitano expresses appreciation to Capital Case Commission members and staff for
volunteering their time and talents to this effort. The Commission provided a healthy forum in which to
discuss and address concerns relating to the death penalty process in Arizona.
The data amassed by the Data/Research Subcommittee provides an unprecedented wealth of information
and allows for a discussion of how the death penalty process works without resort to anecdotal histories.
While the data may lead different people to reach different conclusions, its availability is invaluable in
attempting to make reasoned conclusions about the death penalty in Arizona.
The recommendations proffered by the various subcommittees and the Commission are the result of
extensive study and deliberation by prosecutors, defense attorneys, judges, victim advocates, and state
legislators. The Commission strongly urges that the recommendations set forth in the report be adopted
to attempt to improve the death penalty process in Arizona.
Finally, this Report is not intended to be the final word on the death penalty, but rather a starting point for
additional discussion and study. Attorney General Napolitano recommends that all participants in the
system continue to work together to try to ensure that the death penalty process is just, timely, and fair to
defendants and victims.
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APPENDIX A
ER 1.1. Competence
A lawyer shall provide competent representation to a client. Competent representation requires the legal
knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Comment
Legal Knowledge and Skill
[1] In determining whether a lawyer employs the requisite knowledge and skill in a particular matter,
relevant factors include the relative complexity and specialized nature of the matter, the lawyer’s general
experience, the lawyer’s training and experience in the field in question, the preparation and study the
lawyer is able to give the matter and whether it is feasible to refer the matter to, or associate or consult with,
a lawyer of established competence in the field in question. In many instances, the required proficiency is
that of a general practitioner. Expertise in a particular field of law may be required in some circumstances.
[2] A lawyer need not necessarily have special training or prior experience to handle legal problems
of a type with which the lawyer is unfamiliar. A newly-admitted lawyer can be as competent as a
practitioner with long experience. Some important legal skills, such as the analysis of precedent, the
evaluation of evidence and legal drafting, are required in all legal problems. Perhaps the most fundamental
legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily
transcends any particular specialized knowledge. A lawyer can provide adequate representation in a
wholly novel field through necessary study. Competent representation can also be provided through the
association of a lawyer of established competence in the field in question.
[3] In an emergency a lawyer may give advice or assistance in a matter in which the lawyer does not
have the skill ordinarily required where referral to or consultation or association with another lawyer would
be impracticable. Even in an emergency, however, assistance should be limited to that reasonably
necessary in the circumstances, for ill-considered action under emergency conditions can jeopardize the
client’s interest.
[4] A lawyer may accept representation where the requisite level of competence can be achieved by
reasonable preparation. This applies as well to a lawyer who is appointed as counsel for an unrepresented
person. See also ER 6.2.
Thoroughness and Preparation
[5] Competent handling of a particular matter includes inquiry into and analysis of the factual and legal
elements of the problem, and use of methods and procedures meeting the standards of competent
practitioners. It also includes adequate preparation. The required attention and preparation are determined
in part by what is at stake; major litigation and complex transactions ordinarily require more elaborate
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extensive treatment than matters of lesser complexity and consequence. An agreement between the
lawyer and the client regarding the scope of the representation may limit the matters for which
the lawyer is responsible. See ER 1.2(c).
Maintaining Competence
[6] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the
law and its practice, engage in continuing study and education and comply with all continuing legal
education requirements to which the lawyer is subject. If a system of peer review has been
established, the lawyer should consider making use of it in appropriate circumstances.
[7] A lawyer, whether appointed or retained, who represents a defendant in a capital case
shall comply with the standards for appointment of counsel in capital cases set forth in the
Arizona Rules of Criminal Procedure.
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ER 5.1. Responsibilities of a Partner or Partners, Managers, and Supervisory Lawyers
(a) A partner in a law firm, and a lawyer who individually or together with other lawyers
possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that
the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the rules
Rules of professional Professional conduct Conduct.
(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to
ensure that the other lawyer conforms to the rules Rules of professionalProfessional conductConduct.
(c) A lawyer shall be responsible for another lawyer’s violation of the rules Rules of professional
Professional conduct Conduct if:
(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved;
or
(2) the lawyer is a partner or has comparable managerial authority in the law firm in which
the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows
of the conduct at a time when its consequences can be avoided or mitigated but fails to take
reasonable remedial action.
Comment
[1] Paragraphs Paragraph (a) and (b) refer applies to lawyers who have supervisory managerial
authority over the professional work of a firm or legal department of a government agency. See ER 1.0(c).
This includes members of a partnership, and the shareholders in a law firm organized as a professional
corporation, and members of other associations authorized to practice law; lawyers having
supervisorycomparable managerial authority in a legal services organization or a the law department
of an enterprise or government agency; and lawyers who have intermediate managerial responsibilities in
a firm. Paragraph (b) applies to lawyers who have supervisory authority over the work of other
lawyers in a firm.
[2] Paragraph (a) requires lawyers with managerial authority within a firm to make reasonable
efforts to establish internal policies and procedures designed to provide reasonable assurance
that all lawyers in the firm will conform to the Rules of Professional Conduct. Such policies and
procedures include, but are not limited to, those designed to detect and resolve conflicts of
interest, identify dates by which actions must be taken in pending matters, account for client
funds and property and ensure that inexperienced lawyers are properly supervised.
[3] The Other measures that may be required to fulfill the responsibility prescribed in paragraphs
paragraph (a) and (b) can depend on the firm’s structure and the nature of its practice. In a small firm of
experienced lawyers , informal supervision and occasional admonition periodic review of compliance
with the required systems ordinarily might be sufficient will suffice. In a large firm, or in practice
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situations in which intensely difficult ethical problems frequently arise, more elaborate procedures
measures may be necessary. Some firms, for example, have a procedure whereby junior lawyers can
make confidential referral of ethical problems directly to a designated senior partner or special committee.
See ER 5.2. Firms, whether large or small, may also rely on continuing legal education in professional
ethics. In any event, the ethical atmosphere of a firm can influence the conduct of all its members and a
lawyer having authority over the work of another the partners may not assume that the subordinate lawyer
all lawyers associated with the firm will inevitably conform to the rulesRules.
[4] Paragraph (c)(1) expresses a general principle of personal responsibility for acts of another. See
also ER 8.4(a).
[5] Paragraph (c)(2) defines the duty of a partner or other lawyer having comparable managerial
authority in a law firm, as well as a lawyer who has direct supervisory authority over performance of
specific legal work by another lawyer. Whether a lawyer has such supervisory authority in particular
circumstances is a question of fact. Partners of a private firm and lawyers with comparable authority
have at least indirect responsibility for all work being done by the firm, while a partner or manager in
charge of a particular matter ordinarily also has direct authority over supervisory responsibility for the
work of other firm lawyers engaged in the matter. Appropriate remedial action by a partner or managing
lawyer would depend on the immediacy of the partner's that lawyer’s involvement and the seriousness
of the misconduct. The A supervisor is required to intervene to prevent avoidable consequences of
misconduct if the supervisor knows that the misconduct occurred. Thus, if a supervising lawyer knows that
a subordinate misrepresented a matter to an opposing party in negotiation, the supervisor as well as the
subordinate has a duty to correct the resulting misapprehension.
[6] Professional misconduct by a lawyer under supervision could reveal a violation of paragraph (b)
on the part of the supervisory lawyer even though it does not entail a violation of paragraph (c) because
there was no direction, ratification or knowledge of the violation.
[7] Apart from this rule Rule and ER 8.4(a), a lawyer does not have disciplinary liability for the
conduct of a partner, associate or subordinate. Whether a lawyer may be liable civilly or criminally for
another lawyer’s conduct is a question of law beyond the scope of these rulesRules.
[8] The duties imposed by this Rule on managing and supervising lawyers do not alter the
personal duty of each lawyer in a firm to abide by the Rules of Professional Conduct. See ER
5.2(a).
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ER 5.2. Responsibilities of a Subordinate Lawyer
(a) A lawyer is bound by the rules Rules of professional Professional conduct Conduct
notwithstanding that the lawyer acted at the direction of another person.
(b) A subordinate lawyer does not violate the rules Rules of professional Professional conduct
Conduct if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable
question of professional duty.
Comment
[1] Although a lawyer is not relieved of responsibility for a violation by the fact that the lawyer acted
at the direction of a supervisor, that fact may be relevant in determining whether a lawyer had the
knowledge required to render conduct a violation of the rules Rules. For example, if a subordinate filed
a frivolous pleading at the direction of a supervisor, the subordinate would not be guilty of a professional
violation unless the subordinate knew of the document’s frivolous character.
[2] When lawyers in a supervisor-subordinate relationship encounter a matter involving professional
judgment as to ethical duty, the supervisor may assume responsibility for making the judgment. Otherwise
a consistent course of action or position could not be taken. If the question can reasonably be answered
only one way, the duty of both lawyers is clear and they are equally responsible for fulfilling it. However,
if the question is reasonably arguable, someone has to decide upon the course of action. That authority
ordinarily reposes in the supervisor, and a subordinate may be guided accordingly. For example, if a
question arises whether the interests of two clients conflict under ER 1.7, the supervisor’s reasonable
resolution of the question should protect the subordinate professionally if the resolution is subsequently
challenged.
ER 5.3. Responsibilities Regarding Nonlawyer Assistants
With respect to a nonlawyer employed or retained by or associated with a lawyer:
(a) a partner, and a lawyer who individually or together with other lawyers possesses
comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has
in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional
obligations of the lawyer;
(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to
ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and
(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the rules
Rules of professional Professional conduct Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct
involved; or
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(2) the lawyer is a partner or has comparable managerial authority in the law firm in which
the person is employed, or has direct supervisory authority over the person, and knows of the
conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable
remedial action.
Comment
[1] Lawyers generally employ assistants in their practice, including secretaries, investigators, law
student interns, and paraprofessionals. Such assistants, whether employees or independent contractors,
act for the lawyer in rendition of the lawyer’s professional services. Law enforcement officers generally
are not considered associated with government lawyers, for purposes of this Rule. A lawyer
should mustgive such assistants appropriate instruction and supervision concerning the ethical aspects of
their employment, particularly regarding the obligation not to disclose information relating to representation
of the client, and should be responsible for their work product. The measures employed in supervising
nonlawyers should take account of the fact that they do not have legal training and are not subject to
professional discipline.
[2] Paragraph (a) requires lawyers with managerial authority within a law firm to make
reasonable efforts to establish internal policies and procedures designed to provide reasonable
assurance that nonlawyers in the firm will act in a way compatible with the Rules of Professional
Conduct. See ER 5.1, Comment [1]. Paragraph (b) applies to lawyers who have supervisory
authority over the work of a nonlawyer. Paragraph (c) specifies the circumstances in which a
lawyer is responsible for conduct of a nonlawyer that would be a violation of the Rules of
Professional Conduct if engaged in by a lawyer.
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APPENDIX B
The Maricopa County Attorney’s Office prepared the following chart showing the race of the defendant in different types of murder cases. The
numbers within the boxes represent an individual case from Maricopa County’s files. The same number may appear more than once if there are co-defendants
in a particular case.
MURDER CASES IN MARICOPA COUNTY BETWEEN JANUARY, 1995 AND DECEMBER 31, 1999
CATEGORIZED BY TYPE OF MURDER AND BY RACE OF THE DEFENDANT
Gangs (a) Drive By (b)
Assault (c) Retribution
Drugs (a) Debt Collection
(b) Rip Off (c) Retaliation
Sex (a) Assault (b) Assault
with Child
Other (a) Retaliation for
Testimony (b) Murder for
Hire (c) Cop Kill (d) Officer
Assault (e) Vehicular Crimes
Caucasian 440 (a), 524 (c), 529 (a) 236 (b), 236 (b), 238 (b), 238
(b), 289, 435, 436, 561, 563
430 (b), 431 (b), 527
156 (a), 211, 372, 385 (a),
386 (a), 449 (a), 473 (a), 608
(a), 614 (a), 614 (a), 614 (a),
652 (a)
85 (b), 86 (b), 87 (b), 115 (c),
117 (b), 139 (a), 140 (a), 269
(d), 329 (b), 330 (b), 354 (b),
355 (b), 424 (b), 425 (b) 426
(b), 564, 620, 620, 622 (a)
428 (e), 523 (a)
Non-Caucasian 33, 136 (a), 137 (a), 199 (a),
199 (a), 205, 243, 388, 394,
395, 396, 405, 405, 489, 549,
556, 656 125, 200 (a), 200
(a), 232, 244, 256, 314, 315,
316, 317, 323, 326, 333, 440 (a),
440 (a), 502, 539 (c), 540 (c),
579 (c), 590, 601 (a)
122 (b), 122 (b), 127 (b),
127 (b), 133 (c), 134 (c),
135 (c), 148 (c), 167 (b),
167 (b), 247, 293 (d),
370 (b), 371 (b), 522 (b)
220 (a), 382, 412, 474
(b), 553 (b), 554 (b),
596 (b), 621 (b), 649 (b),
658 (c)
170 (b) 446 (e) 445 (e), 445 (e),
445 (e), 519, 624, 703
Bold = Death Alleged
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Family Violence (a)
Spouse on Spouse (b) Baby Death
(c) Boyfriend/Girlfriend (d) Family
Member/Family Member (e) Child
Abuse (f) Roommate/Roommate
Assault (a) Retribution (b) Fight (c)
DOC Assault (d) Debt Collection
Kidnapping Robbery (a) Robbery Gone Bad
(b) Home Invasion
Caucasian 2 (a), 17 (b), 39 (d), 42 (d), 91 (a), 92
(a), 93 (a), 141 (f), 169 (e), 174 (f),
185 (d), 186 (d), 197 (a), 198 (a),
207 (c), 207 (c), 214 (f), 215 (d),
216 (d), 217 (d), 218 (d), 224 (d),
224 (d), 257 (a), 306 (d), 309 (a),
309 (a), 345 (d), 346 (d), 360, 483
(e), 555 (d), 575 (e), 576 (e), 631 (a),
651 (e) 45 (a), 46 (e), 119 (a), 225
(c), 231 (d), 240 (d), 352 (c), 365 (d),
366 (a), 399 (f), 419 (a), 421 (a), 422
(c), 439, 444 (a)
3 (a), 78, 79 (a), 80 (a), 81 (a), 131 (a), 144
(b), 149 (b), 161 (d), 184 (a), 233 (b), 234
(b), 258, 273 (c), 274 (c) 275 (c), 283, 451,
465 53 (b), 105, 106, 162, 165, 173, 248,
249, 255, 259, 282, 328, 333, 335, 350, 357,
358, 375, 390, 392, 393, 409
461, 462, 464, 647 25 (a), 26 (a), 27 (a), 59 (a), 59 (a), 67
(b), 121, 152, 153, 154, 155, 195,
196, 212, 213, 272, 278, 281, 313,
318 (a), 319 (a), 335, 336, 347, 407,
417, 417, 448, 468, 469, 513, 538,
538, 567, 568, 569, 580,591, 591,
591, 591, 592, 592, 592, 592, 603,
645, 659 66, 177, 178, 219, 235,
260, 267, 279, 280, 296, 297, 298, 320,
320, 321, 321, 322, 322, 327, 362, 363,
364, 387, 526
Non-
Caucasian
24 (a), 188 (f), 262 (c), 299 (d), 300
(d), 340 (b), 383 (d), 571 (e), 571 (e),
585 (e), 607 (e), 619 (a), 619 (d),
653 (a) 147 (d), 190 (d), 230 (d), 270
(a), 271 (d), 324 (b), 341 (d), 427 (c)
34 (b), 34 (b), 73 (a), 74 (a), 158 (a), 159
(a), 183, 183, 183, 242 (b), 242 (b), 242
(b), 307, 307, 337, 337, 368, 587, 587,
587 118, 130, 150, 151, 182, 201, 202, 204,
239, 261, 268, 290, 292, 302, 334, 339, 356,
406, 408, 410 (a), 411, 416, 418, 433, 438, 441
611, 612, 700 5(a), 6 (a), 9 (a), 67 (b), 126, 143,
166, 194, 209, 210 (b), 254 (b), 254
(b), 254 (b), 342, 343, 344, 374 (b),
374 (b), 374 (b), 401, 402, 404, 450,
538, 588, 589, 618, 618, 618, 628,
632, 633 129, 138, 142, 160, 181,
206, 221, 222, 250, 252 (b), 253 (b),
263, 284, 285, 287, 288, 384
Bold = Death Alleged