Interim report

              Capital Case Commission
Interim Report
July 30,2001
Janet Napolitano
Attorney General
Executive Summary
Introduction
Attorney General Janet Napolitano formed the Attorney General's Capital Case Commission to study
key issues of the death penalty process, and to make recommendations to ensure that the system is
fair to defendants and victims. The Commission was formed in the summer of 2000 and includes
prosecutors, defense attorneys, trial and appellate judges, victim's rights advocates, citizens and
members of the Arizona legislature. The DataResearch Subcommittee was the first of four
subcommittees formed. Working in consultation with the Center for Urban Inquiry, College of
Public Programs at Arizona State University, the DataResearch Subcommittee is charged with
compiling empirical data about the death penalty process. The Pre-Trial Issues Subcommittee, the
Trial Issues Subcommittee and the Direct AppealIPCR Subcommittee are each charged with
analyzing issues relevant to their respective stages of the death penalty process and to make
recommendations to the Commission. After twelve months of study, the Commission releases this
Interim Report.
This Executive Summaryprovides an abbreviated description ofthe deathpenaltyprocess in Arizona
and a synopsis of the recommendations of the Capital Case Commission to date. A detailed
description of Arizona's capital punishment history and process and deliberations of the
subcommittees and the Commission can be found in the body of this Report.
The Datahtesearch Subcommittee, chaired by Dr. Peg Bortner, Director of the College of Public
Programs' Center for Urban Inquiry at Arizona State University, designed a three stage investigation
process to compile empirical data about the death penalty in Arizona. Data Set I includes all capital
cases for individuals sentenced between 1974 and July 1,2000. Data Set I1 will offer a comparative
analysis of first degree murder cases charged between January 1,1995, and December 3 1,1999, in
Maricopa, Pima, Coconino and Mohave counties, with capital cases charged during the same time
frame. Data Set IIJ will use a representative sample of cases from Data Sets I and I1 to estimate the
incremental additional cost, if any, of prosecuting, defending and appealing a capital murder case
compared to a non-capital murder case. The results of Data Set I are contained in a report entitled,
"Summary of Death Sentence Process: Data Set I Research Report to Arizona Capital Case
Commission, March 2001 ." Both Data Sets I1 and III are currently underway.
History
Arizona's current death penalty law traces its roots to 1973 legislation enacted in response to a
United States Supreme Court decision that invalidated previous death penalty statutes in various
states for imposing the death penalty in an "arbitrary and capricious manner." Under Arizona's
current statutory scheme, a defendant convicted of first-degree murder (premeditated or felony) is
eligible for the death penalty if at least one of ten statutory aggravating circumstances are
established. The trial court decides whether to impose the death penalty after weighing the
aggravating circumstances against mitigating evidence presented by the defendant or by the State.
The Capital Case
The guilt phase of a death penalty trial proceeds much like any other felony trial. Death penalty
cases differ, however, in that two lawyers, rather than one, are appointed to represent the defendant.
An attorney must satis@ heightened experience and skill requirements before being appointed to
represent a defendant in a capital case.
Jurors in death penalty cases may be "death qualified." Although jurors do not decide whether a
death sentence should be imposed, they are questioned about their views on the death penalty and
their ability to follow the trial court's instructions at trial in light of those views. Prospective jurors
opposed to the death penalty may be removed for cause if their views will not allow them to apply
the law impartially. However, individuals who are opposed to the death penalty but who avow to
conscientiously apply the law may be allowed to serve as jurors.
If a defendant is convicted of first-degree murder, the case proceeds to a sentencing hearing presided
over by the same judge who presided at trial. The judge, rather than the jurors, makes all factual
findings at sentencing. In felony murder cases, the judge first determines whether the defendant
personally killed, intended to kill, or attempted to kill the victim. If that criterion is satisfied, the trial
court proceeds to the same analysis employed in premeditated murder cases, determining whether
aggravating circumstances outweigh mitigating circumstances such that the death penalty is
warranted. If that criterion is not met, the defendant is not eligible for the death penalty unless he or
she was a major participant in the underlying felony and acted with reckless disregard for human life.
Under the Arizona Constitution, victims are entitled to address the court at the sentencing hearing.
Victims (as defined by statute) may be heard as to the emotional, financial and psychological impact
of the murder on the survivors of the murdered person. Victims cannot, however, make sentencing
recommendations for or against the death penalty.
Direct Appeal
Every Arizona death penalty case is automatically appealed to the Arizona Supreme Court. A new
attorney is appointed to represent the defendant to raise issues relating to the trial and the sentencing
proceedings. The Arizona Supreme Court reviews allegations of trial error, and not only reviews
allegations of sentencing error, but also independently considers the propriety of the death sentence.
The Arizona Supreme Court's ruling can be appealed to the United States Supreme Court.
Post-Conviction Relief
If the defendant's convictions and sentences are affirmed on direct appeal, the defendant may pursue
a post-conviction reliefproceeding in the trial court. A new attorney is appointed for this proceeding
and allows the defendant to raise claims relating primarily to whether trial counsel performed
effectively at trial and at sentencing, whether there is "newly discovered" evidence that could change
the verdict or sentence, and whether a change in the law, if applied retroactively, would change the
conviction or sentence. The trial court's ruling in this proceeding can be appealed to the Arizona
Supreme Court by means of a petition for review, and from there to the United States Supreme
Court.
Federal Habeas Corpus
A state prisoner may seek collateral relief in federal district court for claims that his or her federal
constitutional rights were violated at trial or sentencing. Federal constitutional issues can only be
raised in this forum if they were first raised in a procedurally appropriate manner in state court. The
district court's ruling can be appealed to the United States Circuit Court of Appeals for the Ninth
Circuit, and to the United States Supreme Court.
Execution
A warrant for execution is issued by the Arizona Supreme Court to the Director of the Department
of Corrections following the conclusion of state post-conviction proceedings. If the defendant seeks
relief in federal court, the warrant is stayed until those proceedings have concluded.
Competency to be Executed
A condemned prisoner will not be executed if mentally incompetent or pregnant. A prisoner is
incompetent if he does not understand that he is being punished for committing a murder and that
the punishment is death. If found incompetent, the prisoner is provided treatment. Once restored
to competency, the prisoner is again subject to the death penalty.
Clemency
The Arizona Board of Executive Clemency is authorized to review all death sentences and determine
whether there are grounds for reprieve, commutation or pardon. If the Board decides to recommend
reprieve, commutation or pardon, the Governor has discretion to grant the recommended relief. The
Governor cannot act absent a recommendation from the Board.
Attorney General's Capital Case Commission
Deliberations and Recommendations
The Attorney General's Capital Case Commission began reviewing Arizona's capital case system
in September, 2000. Commission members were presented with background information on the
death penalty system in general and on the 230 cases contained in Data Set I. Beginning in October
2000, the Commission received reports from the subcommittees and additional incremental data
from the Center for Urban Inquiry. In December 2000, the Commission began the work of
deliberating and taking action on the recommendations of the subcommittees. The following is a
synopsis of the Commission's recommendations to date.
Ca~itaLl itip- ation Resources Le-~ islation
Subcommittee: The Direct AppeaVPCR Subcommittee initially recommended the creation of a
statewide capital public defender office to represent capital defendants in post-conviction relief
("PCR) proceedings, and legislation was drafted. The Trial Subcommittee then proposed amending
the legislation to include a trial defender for rural Arizona in addition to the statewide post-conviction
relief defender.
Commission: The Commission supported the proposed legislation as amended.
Status: SB 1486 passed the State Senate and the Judiciary Committee of the House, but was not
heard in the House Appropriations Committee. The bill died when the legislative session ended on
May 10,2001. A copy of the introduced version of the bill is attached as Appendix D, paragraph
1.
Notice of Intent to Seek the Death Penaltv Under Arizona
Rules of Criminal Procedure, Rule 15.1(~)1
Subcommittee: Both the Pre-Trial and Trial Issues Subcommittees recommended amending Ariz.
R. Crim. P. Rule 15.l(g)l extending the time for filing the notice of intent to seek the death penalty
to 60 days after arraignment, with additional extensions of time possible by stipulation of the parties
and approval by the trial court.
Commission: The Commission concurred and requested that the Attorney General's Office draft
a petition to amend Ariz. R. Crim. P. Rule 15.l(g)l for submission to the Supreme Court.
Status: The proposed amendment is attached as Appendix D, paragraph 2, and will be included in
the Attorney General's Petition to amend the Rules of Criminal Procedure.
Jury Deliberations in Capital Cases
Subcommittee: The Trial Issues Subcommittee recommended opposing a pending Petition to
Amend Rule 19.4 of the Ariz. R. Crim. P. which would allow juries in criminal cases to deliberate
the case before jury instructions are given by the court.
Commission: The Commission concurred.
Status: At the Commission's request, the Attorney General's Office submitted comments opposing
the Petition on behalf of the Commission. See Appendix D, paragraph 3.
Mental Retardation
Subcommittee: The Pre-Trial Issues Subcommittee, on a 6-4 vote, recommended to the
Commission that Arizona enact a statute to ensure that mentally retarded defendants are not eligible
for the death penalty.
Commission: The Commission, with noted dissent, accepted the recommendation of the
Subcommittee.
Status: S.B. 155 1, previously drafted and introduced in the State Senate, prohibited the execution
of the mentally retarded. The Attorney General's Office participated in drafting a strike-everything
amendment to S.B. 1551 which attempted to balance the interests of prosecutors, advocates for
persons with mental retardation, and defense attorneys. This version of the bill that was signed into
law on April 26,2001 is attached as Appendix D, paragraph 4.
g r a v a t i nFact~or Wh en a Peace Officer is Murdered
Subcommittee: The Pre-Trial Issues Subcommittee recommended that the aggravating factor
regarding the murder of a peace officer be extended to include an off-duty peace officer so long as
the murder was motivated by the peace officer's status.
Commission: The Commission approved the recommendation and requested that the Attorney
General's Office draft proposed legislation in this regard, which appears in Appendix D, paragraph
5.
Status: The proposed legislation will be submitted to the Arizona Legislature for consideration at
its 2002 regular session.
Selection of Ca~itaCl ases bv Prosecutors and Defense Input
Subcommittee: The Pre-Trial Issues Subcommittee recommended that all prosecutors have a
written policy regarding the identification of cases in which to seek the death penalty, including a
provision to solicit or accept defense input before deciding to seek the death penalty.
Commission: The Commission concurred.
Status: The Commission will make a recommendation to the Arizona Prosecuting Attorneys'
Advisory Council for implementation by individual county attorneys and the Attorney General.
Com-p etence to be Executed
Subcommittee: The Pre-Trial Issues Subcommittee recommended the commutation of a death
sentence to the maximum sentence lawfully possible upon finding the defendant not competent to
be executed after the issuance of a death warrant.
Commission: After considerable debate, the Commission voted 12-8, with one abstention, to
recommend that Arizona law be changed to reflect the recommendation of the subcommittee.
Status: The proposed legislation will be submitted to the Arizona Legislature for consideration at
its 2002 regular session.
Competence of Defense Counsel
Subcommittee: The Trial Issues Subcommittee recommended that Ethical Rule 1.1 be amended to
require that all lawyers who represent capital defendants comply with the standards set forth in Ariz.
R. Crim. P., Rule 6.8.
Commission: The Commission concurred and recommended including in the Comment to Ethical
Rule 1.1 the suggestion that two lawyers represent the defendant at trial in every capital case, as is
recommended in the American Bar Association Guidelines.
Status: The Attorney General's Office proposed language which was approved by the Commission
and appears in Appendix D, paragraph 8. This language will be submitted to the State Bar
Association of Arizona on behalf of the Commission.
&gravation/Mitiga- tion and Sentencin~H earin~sa nd
Victim Im~acEt vidence in Capital Cases
Subcommittee: The Trial Issues Subcommittee recommended an amendment to Ariz. R. Crim. P.
26.3, the Comment to that Rule and Supreme Court Administrative Order 94-16 to ensure that a
sentence is adjudged in a capital case after the victim's family presents information, the defendant
presents allocution, and seven days have passed to allow the Court to consider all evidence.
Commission: The Commission rewrote the rule and comment relating to the victim's right "to be
heard."
Status: The Attorney General's Office has drafted the proposed amendment which appears in
Appendix D, paragraph 9, and will be included in the Attorney General's Petition to Amend the
Rules of Criminal Procedure.
The Use of Mitigation Specialists and Standards for Mitipation Specialists
Subcommittee: The Trial Issues Subcommittee proposed an amendment to Ariz. R. Crim. P. 15 to
provide for the appointment of investigators and expert witnesses for indigent defendants.
Commission: The Commission concurred.
Status: The proposed amendment, including a definition of a mitigation specialist, is included in
Appendix D, paragraph 10 and will be included in the Attorney General's Petition to Amend the
Rules of Criminal Procedure.
Audio and Video Recording- of Interviews
Subcommittee: The Trial Issues Subcommittee recommended that the Attorney General work with
her law enforcement advisory committee to develop a protocol for all law enforcement agencies in
Arizona for the recording by law enforcement of all advice of rights, waiver ofrights and questioning
of suspects when feasible.
Commission: The Commission concurred.
Status: The Attorney General formed an ad hoc committee of law enforcement representatives to
research and report on this recommendation and to draft a model protocol for recording interviews.
Prolon~edT ime Intervals in Direct Appeal Proceedings
Subcommittee: The Direct AppealPCR Subcommittee made three recommendations: (1) amend
Ariz. R. Crim. P. 31.9 to require clerks of court to noti@ 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) request trial judges to order transcription of all trial proceedings and to gather the record
on appeal in every first degree murder case at the time the guilty verdict is returned; and (3) request
superior court clerks to enter a docketing code on all criminal calenders identifying cases in which
the death penalty is sought.
Commission: The Commission concurred.
Status: The proposed language for the amendment to Ariz. R. Crim. P. 3 1.9 is included in Appendix
D, paragraph 11, and will be included in the Attorney General's Petition to Amend the Rules of
Criminal Procedure.
Prolon~edT ime Intervals in Post-Conviction Relief Proceedings
Subcommittee: The Direct AppeaIPCR Subcommittee recommended the creation of a repository
in each county for all trial and appellate defense files so that PCR counsel can readily locate files
from one location.
Commission: The Commission concurred.
Status: Further discussion with prosecutors, defense counsel and court administrators is needed
before this recommendation can go forward.
Minimum Age for Capita1 Punishment
Subcommittee: The Pre-trial Issues Subcommittee submitted the issue to the Commission for debate
without recommending a minimum age for capital punishment eligibility.
Commission: The Commission recommended, by a vote of 15 to 8, that Arizona should not apply
capital punishment to defendants under the age of 18 at the time of the crime. The Honorable
Richard Romley, Maricopa County Attorney, filed comments opposing this recommendation and
the Commission's recommendation on competency to be executed which are included in Section N
of this Report.
Status: The proposed legislation will be submitted to the Arizona Legislature for consideration at
its 2002 regular session.
Pro~osedR eforms to Ariz. R. Crim. P. 31 and 32 to Address Prolonged Time Intervals
Subcommittee: The Direct AppeaVPCR Subcommittee recommended an addition to Ariz. R. Crim.
P. 3 1 and 32, requiring the 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.
Commission: The Commission concurred with the Subcommittee, but did not recommend a rule
change to accord the victim a right to be heard in appellate motions for extension of time.
Status: The proposed amendment to Anz. R. Crim. P. 31 and 32 is included at Appendix D,
paragraph 14 and will be included in the Attorney General's Petition to Amend the Rules of Criminal
Procedure.
Office of the Attorney General
State of Arizona
Capital Case Commission
Interim Report
The Commission acknowledges the many dedicated
staff members who worked on this Interim Report
including Patrick Cunningham, Diane Saunders,
Timothy Geiger, Kent Cattani, Monica Beerling
Klapper, Robert Ellman, Michael Haener, Marty Buck,
Scott Bales and Dennis Burke.
Janet Napolitano
Attorney General
Table of Contents
I . Introduction to the Attorney General's Capital Case Commission ....... 1
The Commission Membership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
The Objective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
The Structure and Research . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Thesubcommittees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
The Interim Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
I1 . Capital Punishment in Arizona ................................... 5
History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
The Capital Case ........................................ 7
Trialprocess ........................................... 7
1. Guilt Phase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2 . Sentencing Phase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3 . Trial Court's Decision to Impose the Death Penalty ....... 8
AppealsProcess . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
1. Direct Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2 . Post-Conviction Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3 . Federal Habeas Corpus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Execution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
1. Competency to be Executed . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2 . Clemency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
I11 . The DataIResearch Subcommittee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
IV . Commission Deliberations and Recommendations . . . . . . . . . . . . . . . . . . . 16
Capital Litigation Resources Legislation . . . . . . . . . . . . . . . . . . . . . 16
Notice of Intent to Seek the Death Penalty Under
Ariz.R.Crim.P. 15.l(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Jury Deliberations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Mental Retardation ...................................... 17
Aggravating Factors in Arizona Law and Defining
Eligibility for Capital Punishment ..................... 18
Selection of Capital Cases by Prosecutors and Defense Input ..... 19
Residual Doubt as a Factor in Sentencing ..................... 19
Competency to be Executed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Minimum Age for Capital Punishment ....................... 20
Competence of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
AggravationIMitigation and Sentencing Hearings and
Victim Impact Evidence in Capital Cases ............... 21
The Use of Mitigation Specialists and Standards for
Mitigation Specialists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
1 . Ariz . R . Crim . P . 15.9 Appointment of Investigators
and Expert Witnesses for Indigent Defendants ...... 23
Audio or Video Recording of Interrogations .................. 23
Review of Capital Cases in Which Convictions Were
Reversed, or Sentences Remanded or Modified
by the Appellate Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Prolonged Time Intervals in Direct Appeal Proceedings ......... 24
Prolonged Time Intervals in Post-Conviction Relief Proceedings . . 25
Proposed Reforms in Ariz . R . Crim . P . 3 1 and 32 . . . . . . . . . . . . . . 25
Commission Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
V . Closing Remarks and Future Considerations . . . . . . . . . . . . . . . . . . . . . . . . 30
VI . Appendices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
A . Pre-Trial Issues Subcommittee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A1
1 . Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A1
2 . Issues for Consideration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A1
3 . Discussions and Subcommittee Recommendations ........ A2
a) Mental Retardation ........................... A2
b) Minimum Age for Capital Punishment ............ A2
c) Aggravating Factors in Arizona Law and
Defining Eligibility for Capital Punishment ........ A3
d) Selection of Capital Cases by Prosecutors and
Defense Input . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A3
e) Residual Doubt in Sentencing . . . . . . . . . . . . . . . . . . . A4
f) Competency to be Executed . . . . . . . . . . . . . . . . . . . . A4
g) Notice of Seeking Death Penalty Under
B . Trial Issues Subcommittee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B1
1. Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B1
2 . Issues for Consideration ............................. B1
3 . Discussions and Recommendations . . . . . . . . . . . . . . . . . . . . B2
a) Competence of Counsel . . . . . . . . . . . . . . . . . . . . . . . B2
b) Notice of Seeking Death Penalty Under
Ariz.R.Crim.P. 15.l(g) . . . . . . . . . . . . . . . . . . . . . . B4
c) AggravationIMitigation and Sentencing
Hearings in Capital Cases . . . . . . . . . . . . . . . . . . . . . . B5
d) The Use of Mitigation Specialists and Standards
for Mitigation Specialists . . . . . . . . . . . . . . . . . . . . . . B8
e) Audio or Video Recording of Interrogations ....... B9
f ) Jury Deliberations in Criminal Trials before
Evidence is Closed . . . . . . . . . . . . . . . . . . . . . . . . . . . B9
g) Race as a Factor in Selecting Death Penalty Cases ... B9
h) Other Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B9
C . Direct AppeaVPost-Conviction Relief Subcommittee ........... C1
1 . Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C1
2 . Issues for Consideration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C1
3 . Discussion and Recommendations ..................... C2
a) Statewide Appellate and Trial Indigent Defense .... C2
b) Prolonged Time Intervals in Direct Appeal
Proceedings ................................. C3
c) Prolonged Time Intervals in
Post-Conviction Relief Proceedings .............. C8
d) Proposed Reforms in Ariz . R . Crim . P . 3 1 and 32 ... C8
D . Reforms Recommended by the Commission . . . . . . . . . . . . . . . . . . Dl
1 . Capital Litigation Resources. S.B. 1486 . . . . . . . . . . . . . . . . Dl
2 . Notices of Intent to Seek the Death Penalty; Proposal
to Amend Ariz . R . Crim . P . 15.1 (g) . . . . . . . . . . . . . . . . . . . . Dl 1
3 . Jury Deliberation in Capital Cases; Opposition to the
Proposed Amendment to Ariz . R . Crim . P . 19.4 . . . . . . . . . . Dl1
4 . Execution of the Mentally Retarded . . . . . . . . . . . . . . . . . . . Dl5
5 . Proposed Amendment of the Aggravating Factor When
a Peace Officer is Murdered; A.R.S. 8 13-703(F)(10) ...... D24
6 . Selection of Capital Cases By Prosecutors and
xii
DefenseInput ..................................... D25
Competence to be Executed . . . . . . . . . . . . . . . . . . . . . . . . . . D25
Competence of Defense Counsel . . . . . . . . . . . . . . . . . . . . . . D25
AggravationIMitigation and Sentencing Hearings,
and Victim Impact Evidence in Capital Cases; Proposal
to Amend Ariz. R. Crim. P. 26.3 . . . . . . . . . . . . . . . . . . . . . D25
The Use of Mitigation Specialists and Standards for
Mitigation Specialists; Proposal to Amend Ariz. R. Crim. P.
15.9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D33
Prolonged Time Intervals in Direct Appeal Proceedings;
Proposal to Amend Ariz. R. Crim. P. 3 1.9. .............. D33
The Prolonged Time Intervals in Post-Conviction
Relief Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D34
Audio or Video Recording of Interviews ............... D35
Proposed Reforms on Appellate Requests for Extensions
of Time; Ariz. R. Crim. P. 31 and 32. .................. D35
Minimum Age for Capital Punishment ................. D35
E. Capital Case Commission Members' Biographies .............. El
F. Bibliography.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .F 1
Introduction
During the past two 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 more than
100 prisoners are now 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 to make recommendations to ensure that the death penalty
process in Arizona is fair to defendants and victims. The Capital Case Commission was formed in
the summer of 2000 and, after one year of study and research, releases this Interim Report. After
additional research, the Commission will reconvene.
Commission Membership
The Capital Case Commission brings together persons with varied experience and distinct
perspectives regarding the capital case pre-trial, trial, sentencing and appeal processes. Commission
members include Arizona Supreme Court Justice, the Honorable Stanley G. Feldman; former
Arizona Supreme Court Justice, the Honorable James Moeller; Arizona Court of Appeals member,
the Honorable Michael Ryan; and three members of the Arizona Superior Court, the Honorable Dave
Cole, the Honorable Steven Conn and the Honorable Cindy Jorgenson. Four members of the
Arizona Legislature serve on the Commission, the Assistant Floor Leader in the Senate, Senator
Chris Cummiskey; Majority Whip in the House of Representatives, Representative Marilyn Jarrett;
Mr. John Loredo of the House of Representatives and Mr. Tom Smith of the Senate. Five current
or former prosecutors serve on the Commission including Attorney General Janet Napolitano; the
elected county attorney from Yuma County, the Honorable Patricia Orozco; former Yavapai County
Attorney, the Honorable Charles Hastings; Mr. Paul Ahler of the Maricopa County Attorney's
Office; and Mr. Rick Unklesbay of the Pima County Attorney's Office. Seven members of the
Arizona Defense Bar join the Commission including private and public defense attorneys and trial
and appellate specialists: Mr. Harold Higgins of the Pima County Assistant Public Defender's
Office; Mr. Chris Johns of the Maricopa County Public Defender's Office; Mr. Michael Kimerer of
Kimer & LaVelle; Mr. Charles Krull of the Maricopa County Public Defender's Office; Mr. Lee
Stein of Fennemore Craig; Mr. John Stookey of Osborn Maledon; and Ms. Lois Yankowski of the
Pima County Legal Defender's Office. The Governor's Executive Assistant for Law Enforcement
and Criminal Justice, Special Agent George Weisz, is a member of the Commission, along with
members representing crime victims in Arizona, Mr. Steven Twist and Ms. Gail Leland. The
Commission has citizen membership from Mr. Jaime Gutierrez, a former State Senator from Tucson;
Dr. Peg Bortner from Arizona State University; Mr. Jose Cardenas of Lewis and Roca; and Mr. Tom
LeClaire of Snell & Wilmer. Finally, the Honorable Paul Babbitt, a member ofthe Coconino County
Board of Supervisors, represents the county perspective and Mr. James Bush, Chair of the
Governor's Mental Health Task Force and attorney, provides perspective on mental health issues.
Short biographies of each member appear in Appendix E.
The Objective
The objective of the 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. To that end, the Commission
examined the current system beginning with the pre-trial process, and continuing through the trial
process and the completion of the appellate process.
The Structure and Research
The structure of the Commission is designed to encourage full debate and to enable the
subcommittees of the Commission to work through the intricacies of death penalty litigation in
Arizona. The Commission met seven times beginning in September, 2000 through May, 2001. The
Commission will meet again when additional research has been completed. The Commission's
meetings are open to the public and the Commission has received written input from the public. The
Commission subcommittee meetings were open and members of the public were allowed to speak
andlor present written materials. Beginning in September, 2000, the subcommittees met more than
30 times collectively.
The Subcommittees
DataJResearch Subcommittee:
Peg Bortner, Chair
Michael D. Ryan
Rick A. Unklesbay
Janet Napolitano
John A. Stookey
The DataResearch Subcommittee, chaired by Dr. Peg Bortner of the Center for Urban Inquiry in
the College of Public Programs at Arizona State University, began meeting in the summer of 2000,
and devised three areas of empirical research to be completed:
Data Set I profiles all Arizona capital cases for individuals sentenced from 1974 through July
1, 2000. This study profiles all defendants and victims in those cases, summarizes the
processing of capital cases in Arizona, sets forth time intervals between major decision
points and studies all of the cases requiring corrective appellate action. The Center for Urban
Inquiry presented an Interim 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" (hereinafter referred to as Data Set I Research Report). That report is attached
to this Interim Report for easy reference.
The Center for Urban Inquiry is now working on Data Set II, which is the study of all first
degree murder cases charged during a five-year period, January 1,1995 through December
31, 1999 for Maricopa, Pima, Coconino and Mojave counties. This data will be used for a
comparative analysis to Data Set I and will focus on the differences between a capital murder
case and a non-capital murder case in the four counties.
Work on Data Set 111 has begun using a representative sample from cases in Data Set 11 to
determine the incremental additional costs of prosecuting, defending and appealing a capital
murder case as compared to a non-capital murder case.
Pre-Trial Issues Subcommittee:
Thomas L. LeClaire, Chair
Paul W. Ahler
James M. Bush
John A. Loredo
Patricia A. Orozco
Jose Cardenas
Harold L. Higgins, Jr.
Cindy K. Jorgenson
Lee Stein
George Weisz
Issues:
how prosecutors identi@ cases in which to seek the death penalty;
the statutory scheme of aggravating circumstances that define which defendants are death
eligible;
the minimum age for imposing the death penalty;
the issue of mental retardation as it applies to eligibility for the death penalty;
residual doubt as a mitigating factor; and
the time lines for filing a notice of intent to seek the death penalty.
Trial Issues Subcommittee:
Dave R. Cole, Chair
Steven F. Conn
Jaime Gutierrez
Michael D. Kimerer
Gail Leland
Charles R. Hastings
Marilyn Jarrett
Christopher Johns
John A. Stookey
Rick A. Unklesbay
Issues:
the issues of trial defense attorney competence;
time lines for disclosure of intent to seek the death penalty;
conduct of an aggravationlmitigation hearing and death penalty sentencing;
the use of mitigation experts in preparation of the defense case;
the need for adequate trial defense attorneys for indigent defendants in Arizona; and
the issue of delay in investigating and trying a capital case in the trial courts.
Direct AppeaVPCR Subcommittee:
Michael D. Ryan, Chair Chris Cummiskey
Paul J. Babbitt, Jr. Stanley G. Feldman
Peg Bortner Lois Yankowski
Charles Krull Tom Smith
James Moeller Steven J. Twist
Issues:
the issues of qualifications for an appellate defense attorney;
the need to provide an adequate number of attorneys to handle PCR proceedings in Arizona
capital cases;
the long time intervals in processing capital appeals in Arizona;
the need for a trial and appellate public defender office in Arizona;
Ariz. R. Crim. P. 32 governing PCR proceedings; and
the issue of 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 subcommittees made recommendations for consideration by the full Commission.
The Interim Report
This report will first review the history of capital punishment in Arizona, summarize the research
completed to date by the Center for Urban Inquiry, and then discuss the issues reviewed and the
recommendations returned by the Pre-Trial Issues Subcommittee, the Trial Issues Subcommittee,
and the Direct AppealPCR Subcommittee. This report will summarize the recommendations of the
entire Commission, and list reforms proposed by the Commission for the capital litigation system
in Arizona.
11. 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 by 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 required to prove at least one of these aggravating circumstance beyond a reasonable
doubt for the defendant to be eligible for 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 which 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 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 (1 976),
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 wasper se cruel and unusual punishment
in Proffitt v. Florida, 428 U.S. 242 (1976). In Proffitt, the Court ruled that the aggravating factor
of "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, 1 14 Ariz. 186, 560 P.2d. 41 (1976).
In 1978 the Arizona Supreme Court in State v. Bishop, 118 Ariz. 263, 576 P.2d 122 (1978),
construed the list of mitigating circumstances enumerated in A.R.S. 8 13-703(G) to be exclusive.
Shortly after the Arizona Supreme Court decision in Bishop, the Ohio statutory scheme limiting the
presentation of mitigation was found to be improper by the United State Supreme Court in Lockett
v. Ohio, 438 U.S. 586 (1978). The Court held that the Eighth and Fourteenth Amendments required
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 to be unconstitutional due to its
limitation on the presentation of mitigation. However, the Court found that the unconstitutional
portion of the statute (limiting mitigation) was severable from the constitutional portion, and
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.
In 1979, following the Anzona Supreme Court's decision in Watson, the Arizona legislature
amended A.R.S. 8 13-703(G) to allow for the admission into evidence by either the defendant or the
State of any factor relevant in determining whether to impose a sentence less than death. In 1993,
A.R.S. 8 13-703(A) was amended to provide for a sentence of natural life, in addition to life
imprisonment with the opportunity for parole after 25 years in prison.
In 1988, in Adamson v. Ricketts, 865 F.2d 101 1 (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 the defendant being denied his right to jury sentencing, the
aggravating circumstance of "especially heinous, cruel or depraved" being too arbitrary, the
sentencing court's consideration ofmitigating circumstances was improperly limited, and the statute
imposed a presumption of death. The United States Supreme Court denied certiorari review on
Adamson, but granted review in Walton v. Arizona, 497 U.S. 639 (1990), to address similar issues.
In the Walton opinion 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.
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 thirty days of the arraignment of the
defendant, file a notice of intent to seek the death penalty under Ariz. R. Crim. P. 15.1 (g)(l).
In determining whether to seek the death penalty the prosecutor may weigh many factors. These
include the apparent existence of any of the statutory mitigating factors enumerated in A.R.S. 5 13-
703(G); any information offered by the victim's family; information offered by the defendant, his
family or his counsel; and any other information the prosecutor believes relevant in a given case.
Trial Process
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, called the aggravation and mitigation hearing.
During the aggravation and mitigation hearing, the prosecutor presents evidence as to the existence
of aggravating circumstances, and the defense (or the prosecution) presents evidence as to the
existence of mitigating circumstances. Both parts of the trial are presided over by the sarne judge,
however, the finder of fact at the guilt phase is a jury, and the finder of fact at the sentencing phase
is the trial court judge.
Capital murder trials are similar to any other felony trial, however there are some distinct differences.
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 Ariz. R. Crim. P. 6.2. Only attorneys meeting a
heightened experience and skill standard set forth in Ariz. R. Crim. P. 6.8 may be appointed to
represent a defendant in a capital case. However, the defendant is free to retain counsel of his own
choosing, and such counsel need not meet the qualifications of Ariz. R. Crim. P. 6.8.
One difference in a capital trial is that jurors may be "death qualified". This refers to the process of
questioning 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
nevertheless 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 the same way they do in all other
criminal trials.
Sentencing. Phase
If the defendant is convicted of first degree murder, the court will set a date for the aggravation and
mitigation hearing. The same judge that presided over the trial, or before whom a guilty plea was
entered, generally conducts the aggravation and mitigation hearing. Another judge may conduct the
hearing in the event of the death, resignation, incapacity or disqualification of the judge who presided
at trial.
The presentation of evidence at the aggravation and mitigation hearing follows much the same
format as during the guilt phase of the trial. Witnesses testify under oath and are cross-examined,
evidence is admitted for the court's consideration, and counsel for the State and the defense give oral
argument.
The decision to present evidence to the court in aggravation is the sole responsibility of the
prosecutor. The admissibility of evidence in support of the aggravating circumstances is governed
by the rules of evidence. Evidence in mitigation may be offered by the defense or the State regardless
of its admissibility under the rules of evidence. Once the prosecution has presented evidence
supporting aggravating circumstances and either side has presented mitigating circumstances, the
court decides whether to impose the death penalty, regardless of the views of the prosecutors.
At the'aggravation and mitigation hearing, the statutory victims under A.R.S. 4 13-4401(19) have
the right under the Victim's Bill of Rights (Ariz. Const. Art. 2, 5 2.1(A)(4)) to address the court.
Outlined in A.R.S. 5 13-703(D), the victim(s) may testify as to the emotional, financial and
psychological impact the murder has had on the survivors of the victim. The sentencing judge
cannot, however, consider a sentencing recommendation by the victim(s) in determining whether to
impose the death penalty.
Trial Court's Decision to Im~oseth e Death Penaltv
After the sentencing hearing, the trial court sets a date for the rendering of sentence and the reading
of the special verdict. In the special verdict, as provided for in A.R.S. 5 13-703(D), the court sets
forth its findings as to the existence or non-existence of each of the aggravating circumstances set
forth in A.R.S. 5 13-703(F) and any mitigating circumstances included in A.R.S. 5 13-703(G).
As a preliminary matter at sentencing in felony murder cases, the trial court must first determine if
the facts of the offense met the Enmund/Tison standard. Under Enmund v. Florida, 458 U.S. 782
(1 982), and Tison v. Arizona, 48 1 U.S. 137 (1 987), the death penalty should not be imposed unless
the defendant killed, intended to kill, or attempted to kill. If that criterion is not met, the defendant
is not eligible to be sentenced to death unless he or she was a major participant in the underlying
felony and acted with reckless disregard for human life. If the trial court determines that the facts
of the crime meet the Enmund/Tison standard, it then decides the existence or non-existence of
aggravating and mitigating circumstances.
In deciding whether to impose the death penalty the trial court must determine if the State has
established beyond a reasonable doubt at least one of the ten statutory aggravating circumstances set
forth in A.R.S. 13-703(F):
The defendant has been convicted of another offense in the United States for which
under Arizona law a sentence of life imprisonment or death was imposable;
The defendant was previously convicted of a serious offense, whether preparatory or
completed;
In the commission of the offense the defendant knowingly created a grave risk of
death to another person or persons in addition to the person murdered during the
commission of the offense;
The defendant procured the commission of the offense by payment, or promise of
payment, of anything of pecuniary value;
The defendant committed the offense as consideration for the receipt, or in
expectation of the receipt, of anything of pecuniary value;
The defendant committed the offense in an especially heinous, cruel or depraved
manner;
The defendant committed the offense while in the custody of or on authorized or
unauthorized release fi-om the State Department of Corrections, a law enforcement
agency or a county or city jail;
The defendant has been convicted of one or more other homicides, as defined in 5 13-
1101, which were committed during the commission of the offense.
The defendant was an adult at the time the offense was committed or was tried as an
adult and the murdered person was under fifteen years of age or was seventy years
of age or older; and
The murdered person was an on duty peace officer who was killed in the course of
performing his official duties and the defendant knew, or should have known, that
the murdered person was a peace officer.
If the court determines that the State has proven at least one of the ten aggravating circumstances
beyond a reasonable doubt it next turns to deciding the existence of mitigating circumstances. In
deciding the mitigating circumstances the trial court must determine if the defendant has proven, by
a preponderance of the evidence, any factors that are relevant in determining whether to impose the
death penalty. This determination includes any aspect of the defendant's character, propensities or
record and any circumstances of the offense, including but not limited to, the following factors listed
in A.R.S. 5 13-703(G):
1. The defendant's capacity to appreciate the wrongfulness ofhis conduct or to conform
his conduct to the requirement of law was significantly impaired, but not so impaired
as to constitute a defense to prosecution;
2. The defendant was under unusual and substantial duress, although not such as to
constitute a defense to prosecution;
3. The defendant was legally accountable for the conduct of another under the
provisions of 8 13-303, but his participation was relatively minor, although not so
minor as to constitute a defense to prosecution;
4. The defendant could not reasonably have foreseen that his conduct in the course of
the commission of the offense for which the defendant was convicted would cause,
or would create a grave risk of causing death to another person; and
5. The defendant's age.
In balancing the proven aggravating and mitigating circumstances the trial court "shall take into
account the aggravating and mitigating circumstances ... and shall impose a sentence of death if the
court finds one or more of the aggravating circumstances ... and that there are no mitigating
circumstances sufficiently substantial to call for leniency." A.R.S. § 13-703(E)
The court must, in each particular case, weigh the facts of the crime and the background of the
defendant, recognizing that the death penalty is limited to only particularly aggravated first-degree
murders.
If the trial court decides that the State has proven beyond a reasonable doubt at least one of the
statutory aggravating circumstances, and that there are no mitigating circumstances sufficiently
substantial to call for leniency, the court shall impose the sentence of death. Immediately following
the rendering of the special verdict and sentence of death, the court shall file the defendant's notice
of appeal and the case is automatically appealed to the Arizona Supreme Court.
Appeals Process
Direct Appeal
In the automatic appeal, the Arizona Supreme Court independently reviews the death sentence.
Although the Court does not defer to the trial court's decision to impose the death penalty, it does
give deference to the factual findings underlying the trial court's decision. When the Arizona
Supreme Court has doubt about the imposition of the death penalty, the Court will resolve the doubt
in favor of a life sentence.
Before State v. mite, 168 Ariz. 500,8 15 P.2d. 869 (1 991), 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. The Court instead focuses on the facts and circumstances of the crime at issue and the
character and record of the defendant.
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 the Arizona Supreme Court directly to the United States
Supreme Court by petitioning for a writ of certiorari. Immediately following the final conclusion
of the direct appeal to the Arizona Supreme Court, post-conviction relief proceedings are initiated.
Direct Appeal:
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Post-Conviction Relief
As soon as the mandate is issued affirming the defendant's conviction and sentence, the Arizona
Supreme Court automatically initiates a post-conviction relief proceeding. Post-conviction relief
proceedings allow the defendant to raise claims relating primarily to whether: (1) trial counsel
provided effective representation during the trial or 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 certiorari requesting the United
States Supreme Court to review the decision of the State Supreme Court.
Federal Habeas Corpus
Under 28 U.S.C. 2254, a state prisoner may seek relief in federal district court for claims that his
federal constitutional rights were violated at trial or at sentencing. A federal constitutional claim can
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" (actual
innocence or ineligibility for the death penalty).
The decision of the United States District Court on the habeas corpus petition 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 for 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 subsequent warrants 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 subsequent post-conviction relief.
In 1992, a constitutional amendment was passed by the 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.
Competencv to be Executed
In Arizona, the prisoner is not subject to execution if found to be mentally incompetent or pregnant.
A prisoner is not competent to be executed unless he understands (1) that he is being punished for
murder, and (2) the punishment is death.
If the court finds that the prisoner is incompetent, he 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
prisoner's competency is restored, the individual who supervised the treatment must submit a report
to the Superior Court, the Attorney General, and the prisoner's attorney, stating that they have
determined the prisoner's codpetency restored. In addition to the report written by the treating
individual, the chief medical officer certifies to the Arizona Supreme Court that the prisoner is
competent to be executed. The Arizona Supreme Court will then order the issuance of the death
warrant.
Clemencv
The Arizona Board of Executive Clemency has authority to review all death sentences and determine
whether there are grounds for reprieve, commutation or pardon. The 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 reprieve, commutation or pardon,
or to make no recommendation at all.
-13-
The Board of Executive Clemency conducts a hearing to determine whether to make a
recommendation to the Governor. At the hearing the defendant and his attorney, the State's
attorneys, and the victim are allowed to participate and provide statements regarding the prisoner and
the crime.
If the Board decides to recommend reprieve, commutation or pardon, the Governor then has
constitutional authority to grant the recommended reliefto the prisoner. The Governor can only take
such action upon a recommendation by the Board.
111. DataIResearch Subcommittee
Purpose
At the inception of the Capital Case Commission, the DatdResearch 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 designed a three stage process for compiling data. Data Set I includes all capital cases
for individuals sentenced from 1974 through July 1, 2000. Data Set I profiles all defendants and
victims and summarizes the processing of capital cases in Arizona, including time intervals between
major decision points, analysis of statutes and rules governing the litigation of death penalty cases
in Arizona, and in-depth study of all cases in which there have been conviction-related or sentence-related
reversals, remands or modifications.
The Center for Urban Inquiry began by compiling the complete appellate history of each death
penalty case in Arizona since Furman v. Georgia 408 U.S. 238 (1 972). The Subcommittee was then
charged with providing available information to the Capital Case Commission, responding to
Commission requests for relevant information, maintaining a record of research projects suggested
by Commission deliberations, assessing the feasibility of further research, and assisting in the
preparation of Commission recommendations.
Dr. Peg Bortner, Director of the Center for Urban Inquiry at Arizona State University, chairs the
Data/Research Subcommittee for the Commission and has designed the research methods for the
study of Arizona's capital cases in Data Sets I and II. To date, the work on Data Sets I and 11 has
been 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 and for the assistance the Center for Urban Inquiry continues to provide.
Data Set 11 is well underway and includes all first degree murder cases charged between January 1,
1995 and December 3 1,1999 in Maricopa, Pima, Coconino, and Mohave counties. Data Set II will
profile defendants and victims in these cases using data points fi-om Data Set I and will review
aggregate data fi-om these cases including the number of first degree murder prosecutions, the
number of convictions and the results. Finally, Data Set 11 will be used to identify differences
between capital murder cases and a non-capital murder cases.
Data Set 111 will use a representative sample of cases defined by the DataIResearch Subcommittee,
and will utilize data fi-om Data Sets I and 11, when possible, to estimate the incremental additional
costs, if any, of prosecuting, defending and appealing a capital murder case compared to a non-capital
murder case. Data Set 111 is currently underway and is being performed by The Williams
Institute of Tempe.
IV. Commission Deliberations and
Recommendations
Capital Litigation Resources Legislation
On December 14, 2000, the Commission endorsed draft legislation creating a statewide
capital public defender office to represent indigent capital defendants in post-conviction
relief proceedings. The Direct Appeal/ PCR Subcommittee presented information to the
Commission showing that 8 capital cases had been in a holding pattern at the PCR stage
because no 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. Final appeals in federal court can not go forward until the PCR stage of appeals
is complete in Arizona state courts. Exhibit 28 of the Data Set I Research Report shows time
intervals for the PCR process.
On January 30,2001, the Commission considered information provided by the defense bar,
trial judges on the Commission, and prosecutors regarding the need for a statewide trial
public defender office for capital cases. Commission members made clear that capital
defense at the trial stage in rural Arizona needed assistance because of the difficulty
recruiting public defenders in the rural counties and the issue of adequate compensation for
lawyers coming from urban areas to do capital defense work in rural areas. At that meeting
the Commission approved an amendment to the draft bill to include both a trial defender for
rural Arizona and a PCR defender for all of Arizona. A drafting Subcommittee composed
of Judge Michael Ryan, former Yavapai County Attorney Charles Hastings and Phoenix
defense attorney John Stookey was appointed to redraft the bill. The Subcommittee met on
January 3 1,2001 to redraft the bill, and the amended bill was sent to the Legislature the week
of February 5,2001. The bill became Senate Bill 1486, passed the Senate (27 to 2) and the
Judiciary Committee of the House (9 to O), but was not heard in the House Appropriations
Committee. The bill died when the legislative session ended on May 10,2001.
The Commission, in a meeting on May 15,2001, to consider this Interim Report and the
issue of Capital Litigation Resources, issued this statement:
The Commission unanimously agrees that additional resources must be made
available for capital cases and it deeply regrets the Legislature did not resolve 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.
Notice of Intent to Seek the Death Penalty Under Ariz. R. Crim. P.
15*l(g)(l)
On January 30, 2001, the Commission heard reports from both the Pre-Trial Issues
Subcommittee and the Trial Issues Subcommittee recommending amendment of Ariz. R.
Crim. P. 15.l(g)(l) to extend the time for prosecutors to file notices of intent to seek the
death penalty in Arizona. The Commission agreed and recommends that Ariz. R. Crim. P.
15.1 be amended to extend the time for filing of death penalty notices to 60 days afier
arraignment with an additional extension oftime 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
prosecutor more time to deliberate over the decision of whether to seek the death penalty.
Jury Deliberation in Capital Cases
On January 30, 2001, the Commission considered the Trial Issues Subcommittee's
recommendation to oppose a pending Petition to Amend Ariz. R. Crirn. P. 19.4 that 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 reasoned that the sequence
alone may give the prosecution an unfair advantage, and further, the United States Supreme
Court had not yet 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 Ariz. R.
Crim. P. 19.4. Comments were filed and appear in Appendix D of this Interim Report.
Mental Retardation
On January 30,200 1, the Commission debated whether Arizona needed a statute prohibiting
execution of defendants with mental retardation. At that meeting, the Pre-Trial Issues
Subcommittee recommended, with some dissent, a law prohibiting the application of the
death penalty to persons with mental retardation. The Subcommittee also recommended that
the Commission consider and debate adopting specific standards for determining who has
mental retardation.
At the February 28, 2001 meeting, the Commission considered Senate Bill 1551 which
sought to prohibit the imposition of the death penalty on a defendant that has mental
retardation. 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 person with mental retardation person would
not be executed in Arizona. The Subcommittee also discussed a proposed striker that would
amend Senate Bill 155 1 to ensure that both prosecution and defense interests are balanced.
At the February 2gth meeting, the Commission reached consensus that as a matter of public
policy Arizona should not execute a defendant who has mental retardation. The Commission
directed the Subcommittee to consider and make recommendation on the following issue:
Should the Arizona Legislature enact a statute to ensure a mentally
retarded defendant is not executed or are current safeguards in the law
sufficient?
On March 28, 2001, the Commission received the Pre-Trial Issues Subcommittee report
recommending that Arizona enact a statute to ensure a mentally retarded defendant is not
eligible for the death penalty. The Commission accepted the Subcommittee's
recommendation and noted that the Subcommittee's recommendation was a "grudging" one
approved by a 6 to 4 vote. Some members believe that there are adequate safeguards and
procedures in place in Arizona law to ensure that a mentally retarded defendant would not
be executed.
A strike-everything amendment which attempted to balance the interests of prosecutors,
advocates for persons with mental retardation, and defense attorneys passed the House afier
amendment and was signed into law by Governor Jane Dee Hull on April 26,2001. The
version of the bill signed into law by Governor Jane Dee Hull on April 26,2001 is attached
as Appendix D, paragraph 4.
Aggravating Factors in Arizona Law and Defining Eligibility for
Capital Punishment
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. 5 13-703(F)(10). If a police officer were murdered because of his status as a
police officer and 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. See Appendix D for proposed language.
Selection of Capital Cases by Prosecutors and Defense Input
On March 28, 2001, the Commission received and approved the Pre-Trial Issues
Subcommittee's unanimous recommendation that all prosecutors involved in capital case
prosecution adopt a written policy for identifying cases in which to seek the death penalty,
and such policies shall include soliciting or accepting defense input before deciding to seek
the death penalty.
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. 5 13-703(G), largely because the strength of the
government's proof of guilt may already be considered by the courts in Arizona during the
sentencing phase of a capital case.
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 unlikely to regain competency except through involuntary medical
treatment. 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. $ 5 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 the Maryland statute which
narrowed the definition of incompetence to be executed by eliminating from that definition
any defendants who were on medication before sentencing. 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 lawhlly imposeable when the defendant is found
incompetent after the issuance of a death warrant.
After deliberation, the Commission voted 12 to 8 with one abstention to accept the
subcommittee's recommendation.
Minimum Age For Capital Punishment.
On March 28,2001, the Pre-Trial Issues Subcommittee reported to the Commission that it
was continuing to consider this important issue, and on May 15,2001, the Subcommittee
submitted the issue to the Commission for debate. The Subcommittee did not recommend
a minimum age for capital punishment eligibility. After considerable debate, the
Commission heard a motion to recommend that the death penalty in Arizona not apply to
defendants who were under the age of 18 at the time of the crime. The Commission
approved the motion by a vote of 15 to 8.
Competence of Counsel
The Commission deliberated extensively on the competence of counsel in capital cases. The
DataJResearch Subcommittee identified the number of cases that were overturned based on
ineffective assistance of counsel from 1974 through 2000. The Center for Urban Inquiry
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. In those
19 cases, two defense attorneys were court appointed, one was a public defender, and one
was privately retained. 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 and Section HI of this Interim Report.
In discussing this issue, Commission members noted that early support for a peer review
program for capital defense attorneys had lessened because of the subjectivity ofpeer review.
Further, the members urged Superior Court judges to verify early in a capital case that
counsel are competent under the standards in Ariz. R. Crim. P. 6.8 and that judges should
hold a hearing if necessary to advise defendants regarding competency of counsel much like
hearings on conflict of interest are held under Arizona law. The Commission then turned to
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 Ariz. R. Crim. P. 6.8, or reporting to the
county's appointing authority for indigent defense.
On March 28,2001, the Trial Issues Subcommittee recommended to the Commission that
there should be no mandatory reporting of defense attorneys when there is a finding by a
court of ineffective assistance of counsel. Because those cases are taken on a case-by-case
basis and because there is such a variety of holdings from trial and appellate courts in this
matter, the Subcommittee believed that the criminal justice system in the State of Arizona
may rely on the duty incumbent on lawyers and judges to report ethical violations under
Ethical Rule 8.3 of the Rules of Professional Responsibility. The Subcommittee stressed to
the Commission that the reporting under Ethical Rule 8.3 is done on a case-by-case basis,
and that a particular finding by a trial or appellate court may well be inadequate to support
a report of an ethical violation to the State Bar. The Commission approved this
recommendation.
The Trial Issues Subcommittee hrther recommends that Ethical Rule 1.1 be amended to
include a provision regarding the competence of lawyers representing capital defendants.
The Subcommittee recommended, and the Commission approved on March 28,2001, and
May 15,200 1, that Ethical Rule 1.1 be amended to read 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 CAPITALDEFENDANT SHALL COMPLY WITH THE
STANDARDS SET FORTH IN Ariz. R. Crim. P. 6.8 REGARDING
STANDARDS FOR APPOINTMENT OF COUNSEL IN CAPITAL CASES.
The Subcommittee also recommended and the Commission approved on March 28,2001,
and May 15,2001, 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.
AggravationIMitigation and Sentencing Hearings, and Victim Impact
Evidence In Capital Cases
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. On
-21-
January 18,2001, 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 using the special verdict form. In addition, on March 28, and May
15,2001, the Trial Issues Subcommittee recommended an amendment to Ariz. R. Crim. P.
26.3, 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 this 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 aggravationlmitigation hearing in order to properly reflect on the events, of the
hearing.
After the May 15,2001 meeting, the Attorney General's Office rewrote the Comment to Rule
26.3 and sent it to every member of the Commission. No objections to the Comment were
lodged. The Comment is intended to ensure an orderly pre-sentencing hearing, and the
careful adherence to A.R.S. 8 13-703 and the holding in Payne v. Tennessee, 501 U.S. 808
(1 99 l), so that victims are allowed to be heard regarding the murdered person and the impact
of the murder on the victim and other family members. Victims are instructed not to make
sentencing recommendations as to capital counts. In the Comment, trial judges are reminded
not to infer from a victim's silence either acquiescence in, or opposition to, a capital
sentence. Victims are reminded that they may comment and make sentencing
recommendations on all non-capital counts. The Commission's proposed Rule 26.3 and
Comment are reprinted in Appendix D, paragraph 9.
Pursuant to the Commission's decision on May 15, 2001, the portions of the Supreme
Court's Administrative Order 94-1 6 providing guidance on the conduct of capital sentencing
will be included in Rule 26.3 and the Comment in the Attorney General's Petition to amend
the Rules of Criminal Procedure.
The Use of Mitigation Specialists and Standards for Mitigation
Specialists ,
On March 28, 2001, the Commission approved the Trial Issues Subcommittee's
recommendation to amend Ariz. R. Crim. P. 15 to provide for the appointment of
investigators and expert witnesses for indigent defendants. The Commission envisions that
this rule will be used by capital defendants to obtain mitigation specialists at county expense
in all capital cases at the beginning of the case. The text of the rule, as approved by the
Commission, reads as follows:
Ariz. R. Crim. P. 15.9 Appointment of Investigators and Expert Witness for
Indigent Defendants
a. An indigent defendant may apply for the assistance of an investigator,
expert witness, or mitigation specialist to be paid by the county if the
defendant can show that such assistance is reasonably necessary to
adequately present a defense at trial or sentencing.
b. An application for the appointment of investigators or expert
witnesses pursuant to this Rule shall not be made ex parte.
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.
Audio or Video Recording of Interviews
On March 28, 2001, the Trial Issues Subcommittee recommended and the Commission
approved the recommendation that the Attorney General develop a protocol for all law
enforcement agencies in Arizona for the recording by law enforcement of all advice of rights,
waiver of rights, and questioning of suspects in criminal cases when feasible to do so.
Review of Capital Cases in Which Convictions Were Reversed, Or
Sentences Were Remanded or Modified By the Appellate Court
In December 2000 and January 2001, the Commission agreed on a strategy for the review of
those 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.
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 has invited Commission members to join them this summer
for an in-depth study of the 78 cases. The goal of the study is to determine whether
additional recommendations for reform are needed. The issues which formed the basis for
reversals, remand or modification for these cases are depicted in Exhibits 14 through 19 of
the Data Set I Research Report.
Prolonged Time Intervals in Direct Appeal Proceedings
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 AppealRCR Subcommittee regarding delays in the system due to missing
court documents, pleadings and exhibits, and the difficulties in obtaining transcripts in trial
proceedings. The Subcommittee met with elected court clerks and with court reporters from
around Arizona.
On March 28, the Direct AppealRCR Subcommittee made three recommendations which
were approved by the Commission. First, the Commission recommends amending Ariz. R.
Crim. P. 3 1.9 so that the clerk of the court in capital cases will be required to noti@ 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 records in a capital case, and will hopefully preserve records in this
cases 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 ultimate code the local clerk selects, the calendar
will communicate to the court reporter and to the court room 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 capital case 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 go a long way in removing
some of the prolonged time intervals in capital case appellate process.
The Commission's proposed Rule 3 1.9 is reprinted in Appendix D, paragraph 1 1
The Prolonged Time Intervals in Post-Conviction Relief Proceedings
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), 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. Secondly, the Commission strongly recommended that
Senate Bill 1486 be enacted so that PCR counsel could be appointed as soon as possible to
represent capital defendants. Today, the Arizona Supreme Court cannot appoint PCR
counsel for many defendants because no qualified counsel are available. The Commission
recognized that 6 defendants were awaiting PCR counsel and that many of those defendants
had been waiting for over 22 months. The Commission concluded that this is one of the
principal causes of delay in processing capital cases in Arizona.
Proposed Reforms in Ariz. R. Crim. P. 31 and 32
On March 28,2001, the Commission considered reforms to Ariz. R. Crim. P. 31 and 32 to
eliminate some of the prolonged time intervals in these appellate proceedings. The
Commission has noted that the Supreme Court's latest changes to Ariz. R. Crim. P. 32
included a Comment in the rule-making 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 victim's right 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 the victim's right with the defendant's right to a fair
appellate process, including adequate preparation time. The Commission did not reach
consensus on this matter and asked the Direct AppealIPCR Subcommittee to reconvene on
the issue of the victim's right to a prompt and final conclusion of criminal cases and to
debate any other rule changes in Ariz. R. Crim. P. 31 and 32 which specifically relate to the
death penalty and which could reduce time intervals in the appellate process.
On May 3 and 14,2001, the Subcommittee deliberated on the additional issue of whether a
victim should have an opportunity to be heard in all appellate proceedings where there is a
request for an extension of time. On May 15, 2001, the Commission deliberated on two
proposed rules to be added in Rule 31.27 for Direct Appeals and Rule 32.10 for Post-
Conviction Relief proceedings.
First, the Commission considered Mr. Steve Twist's substitute motion for the passage of a
rule creating a right to be heard in appellate motions for lengthy extensions. 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 andfinal
conclusion of the case.
Comment: To implement the victim's right to a prompt andfinal conclusion '
to their case, see Ariz. Const. Art. 2, $2.1 (A)@ 0), 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.
Secondly, the Commission considered the Subcommittee's recommended rule change on
appellate extensions and unanimously recommended the following language for passage by
the Supreme Court:
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 andfinal resolution of the case.
Comment: To implement the victim's right to a prompt andfinal conclusion
of the case, see Ariz. Const. Art. 2, J 2.1 (A)(] O), 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.
Commission Comments
Copies of the draft of this Interim Report were sent to Commission members for comment.
Paul W. Ahler, Chief Deputy to the Honorable Richard M. Romley, Maricopa County
Attorney, filed these comments on the issue of minimum age as a bar to the death penalty and
restoration to competency:
The Maricopa County Attorney's representative on the Capital Case Commission
voted against the recommendation to prohibit the use of the death penalty on those
Richard M. Romley Comment (continued)
defendants that commit their crimes when they are under the age of 18; and the
recommendation that ifa capital inmate is deemed incompetent to be executed that
the death sentence would be vacated for a Iife sentence rather than attempting to
restore the inmate to competency. This is an explanation of the position of the
Maricopa County Attorneys Office and why the office believes that the
recommendations of the Commission on these two points are not goodpublicpolicy.
THE AGE OF 18 AS AN ABSOLUTE BAR TO THE DEATH PENALTY
A.R.S. $ 13-703(G)(5) provides that the trial court shall consider whether the
defendant's age at the time he committed the offense is a mitigating factor.
Arizona's courts have continuously recognized that the young age of a defendant
convicted offirst degree murder is "a substantial and relevant factor" to be given
"great weight, " although they have also acknowledged that age alone will not act
to require Iife imprisonment in every case offirst degree murder by a minor. State
v. Valencia, 132 Ariz. 248, 250 (1982). The United States Supreme Court has also
found a minor's age to be "a relevant mitigating factor of great weight. " Eddings
v. Oklahoma, 455 US. 104, 11 7, 102 S.Ct. 869, 877 (1982). The United States
Supreme Court, consistent with the Arizona statute, found that while the imposition
of the death penalty on those that committed their crimes while 15 or younger
violated the Eighth Amendment, that imposition of the death penalty on defendants
for crimes committed at age 16 or 17 did not violate the prohibition against cruel
and unusualpunishment. Stanford v. Kentucky, 492 US. 361,109 S. Ct. 2969 (1 989);
CJ: Thompson v. Oklahoma, 487 U.S. 815,108 S.Ct. 2687 (1988) (eighth amendment
prohibits imposition of death penalty on defendant who committed first degree
murder at age 15).
So while the age of a defendant may be a mitigating circumstance, in assessing age
as a mitigator, courts also consider intelligence, State v. Laird, 186 Ariz. at 209;
level of maturity, id.; judgment, Jackson, 186 Ariz. at 31; past experience, id. at 30;
criminal history, Murray, 184 Ariz. at 43; and involvement in the crime, Jackson,
186 Ariz. at 30. In short, Arizona law recognizes the obvious--not all 16 and 17year
olds are equal in maturity, judgment, and the like. The application of the statute has
worked very well. There have only been a handful of defendants who were under 18
and who actually had the death penalty imposed by the trial court. Even fewer had
their death sentences aflrmed by the Arizona Supreme Court. In looking at each one
of the cases where the death sentence was affirmed, not one case stands out as an
aberration. In fact, in the debate before the Commission not one example was used
to identzfjt a problem with the present system.
The primary evidence submitted on this issue was a claim that MRIstudies showed
lack of brain development in people under the age of 18. This use of MRI technology
Richard M. Romley Comment (continued)
to explain behavior is similar in character to PET scan images in criminal cases
which have been discredited as 'j'unkscience. " PETscan images have been banned
by the California courts for not being generally accepted in the medical community.
In short, the Commission wants to solve a problem that does not exist; to draw a
bright line that would exclude individuals who commit heinous crimes from receiving
what society believes is the appropriatepunishment; all in the name of a study where
the author herself recognizes that the study cannot prove the explanation the
Commission wishes to draw. The Maricopa County Attorneys Office disagrees with
this recommendation and contends that the current law in this area is better public
policy.
RESTORATION TO COMPETENCY V. REDUCING A DEATH SENTENCE
TO LIFE
The Commission voted to recommend that the law in Arizona be changed to have a
death sentence vacated whenever a defendant is determined to be incompetent to be
executed. The present law, A.R.S. j 13-4023, requires the state mental hospital to
treat and restore inmates who are determined to be incompetent to be executed.
Under the present law, there is no real incentive to attempt to fake incompetency.
If an inmate succeeds in delaying a scheduled execution because he finds a doctor
who will certzfi his incompetency, such a reprieve will be short lived because he will
be quickly "restored" by the state hospital. In the history of Arizona's law, and it
has been in existence since territorial days, only a few inmates have been found to
be incompetent. Clearly, the incentive to use the law is lacking for the nefarious, but
available to those who truly need it.
Ifthe Commission's recommendation comes to fruition, then we can expect a slew of
petitions in every capital case near the end of the already long appellate process.
It will be the inmates' last shot at trying anything to get off of death row.
And what problem with the current law is the Commission trying to solve?
Proponents of this position claim that it is unethical for doctors to treat inmates to
be executed. The law is clear that the personal ethical considerations of a state
employee do not interfere with the state law he/she is obligated to carry out. Ifthe
doctors at the state hospital believe that moral and ethical considerations of
restoring someone to competency are too onerous, perhaps they shouldget a newjob
and let others take theirplace. The simple fact that the doctors at the state hospital
do not want to treat these inmates should not establish policy for the state. The
Maricopa County Attorney Office finds it inconsistent with sound public policy that
the Commission is attempting to bow to the views of these doctors, state employees
nonetheless, and create a system that will cost the state thousands of dollars as each
inmate avails himself of the possibility of reprieve.
Richard M. Romley Comment (continued)
In addition, proponents claim that it is unconstitutional to force treatment on an
inmate who does not want it. The federal constitution does appear to prohibit the
forced treatment of those who are not a danger to themselves or others. However,
courts that have looked at the issue have found that inmates that are so incompetent
as to not be competent for execution are, in fact, a danger to themselves, ifnot stafl
If: in that rare situation where an inmate deteriorates to the point where he is not
competent, and competency can never be restored, current law would allow a
petition to the Board of Executive Clemency for commutation of the death sentence.
Again, there is no sound public policy for the recommended change and it would
encourage even more delay in the system.
V. Attorney General's Closing Remarks
and Future Considerations
This Interim Report of the Capital Case Commission represents twelve months of study of the capital
litigation system in Arizona and the 230 capital cases which are included in Data Set I. The Center
for Urban Inquiry, College of Public Programs at Arizona State University continues to compile
empirical data about defendants and victims, as well as the process itself.
The Commission made several recommendations for reforms in capital litigation from the selection
of cases, to trial counsel competence, to the appellate process. These reforms are designed to
improve the quality of justice administered in Arizona.
Of course, further study by the Commission is well under way. The Trial Issues Subcommittee will
study 78 of the 230 cases from Data Set I in which a reversal, remand or modification was ordered
by a reviewing court and a sentence other than death was rendered upon retrial or resentencing. The
Subcommittee will study the cases in order to determine whether additional improvements to the
system are needed. The Pre-Trial Issues Subcommittee will study two of the most frequently used
aggravating factors (murder committed in an especially heinous, cruel or depraved manner, and
murder committed for pecuniary gain) after Data Set 11 is completed. Data Set 11 will study all first
degree murder cases in four counties from 1995 to 1999, and will attempt to discern differences
between capital murder cases and non-capital murder cases. The DataIResearch Subcommittee will
advise the Center for Urban Inquiry throughout the summer on this important research.
Data Set 111 is proceeding as well and will focus on the incremental additional costs, if any, of
prosecuting, defending and appealing a capital murder case compared to a non-capital murder case.
Additional considerations for the Commission may include the need for proportionality review of
prosecutors' decisions to seek the death penalty, and the review of perceived disparity among the
counties in which the death penalty is sought.
Finally, the Commission will reconvene in the Fall of 2001 to consider Data Sets I1 and 111 and the
work of the Subcommittees done throughout the Summer.
VIII. Appendices
A. Pre-Trial Issues Subcommittee
1. Purpose
The Pre-Trial Issues Subcommittee worked on issues such as Arizona's statutory scheme for
determining death eligible cases, the actual process Arizona prosecutors use to determine whether
to seek the deathpenalty, and the pre-trial timetable Arizonauses. The Subcommittee met five times
and debated the issues thoroughly. In the end, the Subcommittee decided to widen its scope to
consider the issues of competence to be executed and the adequacy of pre-trial notice to the defense
of which aggravating factors the government will rely on during sentencing.
2. Issues for Consideration
The Subcommittee identified these issues for exploration:
1. How does Arizona's statutory scheme for determining death eligibility in
first-degree murder cases compare with that of other states?
2. How do prosecutors in Arizona identify cases in which to seek the death
penalty? Is the process in Arizona different than other states?
3. Do Arizona prosecutors ask for defense input before a case is identified as
one where the death penalty will be sought? What do other states do?
4. How does Arizona compare nationally regarding the eligibility of minors for
the death penalty?
5. How do other states handle the eligibility of the mentally retarded to be
executed?
6. Do other states have a mitigator of "residual doubt"?
7. Have Arizona's capital procedures produced a race neutral implementation
of the death penalty? If not, what additional procedures should be adopted?
See the Trial Issues Subcommittee discussion of this issue in Section 3(g) of
Appendix B and Exhibits 35 and 36 of the Data Set I Research Report.
8. Are the existing rules of filing the notification of intent to seek the death
penalty sufficient? Should the timetables be altered?
The Subcommittee decided to add several issues for consideration:
1. How are defense counsel selected for indigent defendants?
2. Should the prosecutor be required to provide notice of potential aggravating
factors before trial, rather than after the verdict as is now required by Ariz. R.
Crim. P. 15.2(g)?
3. As a sub-issue to issue number 2: What is the process by which prosecutors,
county by county, determine to seek the death penalty? Are there
differences?
4. As a sub-issue to issue number 5: How do other states handle the eligibility
of the mentally incompetent to be executed?
3. Discussion and Subcommittee Recommendations
a) Mental Retardation
On December 19,2000 and again on January 19,200 1, the Subcommittee debated this issue
extensively and considered the recommendations of Mr. Bush that mentally retarded persons
should not be subject to execution in Arizona. On January 19,2001, the Subcommittee voted
6 to 2 to recommend the Commission as a whole consider these issues.
On February 28,2001, the Commission debated the issue and reached a consensus that, as
a matter of public policy, Arizona should not execute a defendant who is mentally retarded.
The Commission referred a final issue to the Subcommittee for its recommendation:
Should the Arizona Legislature enact a statute to ensure a mentally retarded
defendant is not executed or are current safeguards in law enough?
On March 13, 2001, the Pre-Trial Issues Subcommittee deliberated the issue that the
Commission had identified. The Subcommittee concluded, by a vote of 6 to 4, that the
Arizona legislature should enact a statute to ensure a mentally retarded defendant is not
executed.
b) Minimum Age for Capital Punishment
The Subcommittee debated the issue of a minimum age for imposing the death penalty at the
December and January meetings, and elected not to make a recommendation to the
commission until a final report was prepared.
The Subcommittee debated minimum age on March 20,2001, at the end of its meeting and
received comments from Dr. Mark Welleck, a psychiatrist in Phoenix and a member of the
American Society for Adolescent Psychiatry. The Subcommittee voted 7 to 1 to recommend
to the Commission that the issue of minimum age should be studied Wher before any
recommendation is made to change Arizona's current law.
On May 8,2001, the Subcommittee recommended that the issue of minimum age be debated
by the Commission. The Subcommittee provided relevant materials to the Commission but
did not recommend a minimum age.
c) Aggravating Factors in Arizona Law and Defining Eligibility for Capital
Punishment
At its December and February meetings, the Subcommittee debated the issue of adequacy
of aggravating factors in Arizona law. The consensus was that no additional factors are
needed.
On March 20,2001, the Subcommittee again debated the issue of aggravating factors and the
Subcommittee specifically debated the issue of whether the aggravating factor for law
enforcement victims is sufficient. By a vote of 7 to 1, the Subcommittee recommended
extending the aggravating factor in A.R.S. 13-703(F)(10) to include peace officers killed
while not performing official duties, but whose murder was motivated by the peace officer's
status.
Dr. Bortner and her colleagues at the Center for Urban Inquiry reviewed all 230 cases in Data
Set I in order to determine which aggravating factors have been found by the sentencing
judges in Arizona from 1974 to 2000. The results of this research are displayed in Exhibits
7,8,9 and 10 of the Data Set I Research Report.
d) Selection of Capital Cases by Prosecutors and Defense Input
On January 19,2001 the Subcommittee discussed the selection process by which prosecutors
decide whether to seek the death penalty. The Subcommittee received a written and oral
briefing from' the Maricopa County Attorneys Office on the processes used in Arizona and
around the country. The debate centered upon whether the prosecutor should be compelled
by rule to seek or accept input from the defendant prior to deciding whether to seek the death
penalty.
On March 13, 2001, the Subcommittee deliberated on what kind of policies Arizona
prosecutors should have in place to select cases for seeking the death penalty and for
receiving defense input. The Subcommittee unanimously recommended that all prosecutors
involved in capital case prosecution adopt a written policy for identifying those cases in
which to seek the death penalty and that such policy will include soliciting or accepting
defense input before deciding to seek the death penalty.
e) Residual Doubt in Sentencing
On February 22,2001, the Subcommittee debated the issue of residual doubt and whether
it should be considered by the judge in sentencing or made an explicit mitigating factor in
Arizona law. As background, Arizona now has five statutory mitigating factors. Exhibit 10
of the Data Set I Research Report shows which mitigating factors have been found by trial
court judges.
On March 20,2001, the Subcommittee deliberated on residual doubt in sentencing, i.e., the
issue of whether a judge may consider the strength of the government's case of the
defendant's guilt during the sentencing phase of a capital case. The Subcommittee considered
the Arizona Supreme Court's action in State v. Verdugo, 1 12 Ariz. 288,541 P2d 388 (1975),
in which the court reduced the death sentence to life in prison based on residual doubt. In
about ten other cases the Arizona Supreme Court has discussed residual doubt, but declined
to reduce the sentence. By a vote of 5 to 2 with one abstention, the Subcommittee defeated
a motion to recommend to the Commission that residual doubt be added to the Arizona list
of statutory mitigators found in A.R.S. § 13-703(G).
f) Competency to be Executed
The Subcommittee added competency to be executed to its issues list at its first meeting, and
debated the issue often. The issue was debated on December 19,2000, and again on January
19,2001 when the Subcommittee considered the recommendation of Mr. Bush that mentally
incompetent persons not be executed and that Arizona not require physicians to restore
prisoners to competency for the purpose of execution.
On January 19,2001, by a vote of 7- 1, the Subcommittee recommended that the Commission
consider a proposal to commute to life imprisonment the sentence of any death row inmate
who is found incompetent to be executed, consider the current standards of incompetence,
and consider changes in Arizona law requiring competence assessment of defendants.
On January 30 and February 28, the full Commission debated the issue of competency and
asked the Pre-Trial Issues Subcommittee for a more specific recommendation.
The Subcommittee deliberated on competency at both the March 13 and March 20,2001,
meetings, and specifically debated the issue of the Maryland statute, the issue of
commutation to a life sentence or something less than life under Arizona's pre-1992 law, the
need for a board ofmental health professionals versus one mental health professional making
the diagnosis, and the Arizona law on giving consent for mental health treatment while the
person is not competent. By a vote of 5 to 3 with one abstention, the Pre-Trial Issue
Subcommittee passed the following recommendation:
The Pre-Trial Issues Subcommittee recommends to-the Commission
that Arizona require the commutation of a death sentence to the
maximum sentence lawhlly imposable if the defendant is found
incompetent after the issuance of a death warrant.
To put mental health issues in context for the 230 cases in which the defendant was
sentenced to death from 1974 to 2000, Appendices A and B from the Data Set I Research
Report provide every mental health condition which was found by the Court to have been
proved as statutory or non-statutory mitigation.
g) Notices under Ariz. R. Crim. P. 15.1 (g)
The Subcommittee discussed two kinds of notice under Ariz. R. Crim. P. 15. First, the
Subcommittee considered whether the prosecution's mandatory notice on intent to seek the
death penalty should be extended from the current 30 days after arraignment. On January 19,
2001, the Subcommittee voted unanimously to recommend that the Rule be modified to
extend the time of the notice of seeking the death penalty from 30 days after arraignment to
60 days after arraignment with further extensions of time permitted by order of the court.
Second, the Subcommittee considered whether the prosecution should be required to provide
notice of the aggravating factors it intends to prove before trial, rather than within 10 days
of verdict as now required. The Subcommittee elected not to recommend any change.
B. Trial Issues Subcommittee
1. Purpose
The Trial Issues Subcommittee considered issues related to trials in capital cases. The Subcommittee
considered qualifications for trial defense counsel, the need for state-wide trial and appellate public
defender offices to represent indigent capital defendants, later notice by the prosecution of intent to
seek the death penalty to give both the defense and prosecution time to submit and review evidence,
and the procedure for conducting the aggravatiodmitigation and sentencing hearings. At the request
of defense attorneys, the Subcommittee also considered whether law enforcement officers should
be required to electronically record statements made to them by suspects in capital cases.
2. Issues for Consideration
The Subcommittee identified these issues for study:
1. Are the qualifications for trial counsel, as specified in Ariz. R. Crim. P. 6.8
sufficient?
2. Are the disclosure requirements imposed on the State by Ariz. R. Crim. P.
15.1 (g)(2) sufficient?
3. Are the disclosure requirements imposed on the defense by Ariz. R. Crim. P.
15.2(g)(l) sufficient?
4. Are there ways to improve the existing procedures for the
aggravatiodmitigation hearing - Ariz. R. Crim. P. 26.3(c)?
5. Does the existing system adequately provide for mitigation experts?
6. Are there possible way to improve the manner of funding the costs of lawyers
and experts for both the prosecution and the defense?
7. Are statutory or rule changes desirable to better implement the rights of
victims under Article 11, Section 2.1, Arizona Constitution, and A.R.S. 5 13-
4401 et seq., in capital cases?
8. Are victims adequately heard at trial and sentencing?
9. Does it take too long to investigate and try a capital case? If so, what reforms
would reduce the time necessary to process these cases?
B- 1
The Subcommittee decided to add several issues to its consideration:
1. Should all statements taken in capital cases be recorded?
2. Should Ariz. R. Crim. P. 19.4 be amended to permit jury deliberation prior
to the close of evidence?
3. Discussion and Recommendations
a) Competence of Counsel
The issue of trial defense counsel competence and the proposal for a statewide capital trial
defender office was debated at every meeting of the Subcommittee. The qualifications for
appointed and retained counsel were also debated at length. The need for qualified public
defenders for capital cases in rural Arizona was well documented by Subcommittee
members, and the problem of inadequate funding was restated as the obvious roadblock to
the availability of counsel. Rural county members agreed that Ariz. R. Crim. P. 6.8 required
two qualified counsel in every capital case, but made clear that recruiting such counsel from
an urban area cost the rural counties a lot of money in fees, travel and expenses. Local
defense counsel is preferred by the Subcommittee.
On November 14,2000, the Subcommittee reached a consensus that there is a need for a
state-wide capital trial defense office in Arizona to serve the rural counties especially. This
recommendation was communicated to the Commission and the Direct Appeal and Post-conviction
Relief Subcommittee.
In January 2001 the Subcommittee debated a peer review process to ensure competent trial
counsel on the defense side. The Subcommittee concluded that, by and large, Ariz. R. Crim.
P. 6.8 ensured competent trial defense attorneys in capital cases, but that the Subcommittee
should explore a peer review program to ensure competence of retained and appointed
counsel. After the February and March meetings, the Subcommittee concluded that peer
review was not workable, and declined to endorse a peer review program for capital cases.
The Subcommittee recommended that the trial judge should set a status conference early in
the trial preparation stage in the case in order to assess whether the defense attorneys are
qualified under Ariz. R. Crim. P. 6.8. This status conference should also be used to ensure
schedules are being met to protect the victim's right to a speedy trial.
The Data and Research Subcommittee reported the following data regarding the defense
attorneys who appeared in the 230 capital cases from 1974 through July 1, 2000. The
attorneys included public defenders, court appointed private counsel, and retained counsel.
The number of remands and reversals or modifications in these cases are also reported and
these data appear in Exhibit 24 of the Data Set I Research Report.
In the March 22, 2001 meeting the Subcommittee again deliberated on the issue of
competency of defense attorneys and in particular dealt with issues raised by the full
Commission in its previous meeting. In particular, the Commission raised the following four
questions for debate:
1. Should an attorney whose performance is found to have been inadequate or
deficient in a capital case by any court be removed from the list of eligible
counsel under Ariz. R. Crim. P. 6.2 and 6.8?
2. Should an attorney whose performance is found to have been inadequate or
deficient not be appointed under Ariz. R. Crim. P. 6.2 or 6.8 until the attorney
completes 12 hours of continuing legal education on capital litigation?
3. Should an attorney whose performance is found to have been inadequate or
deficient be reported to the Arizona Supreme Court, the Presiding Judges of
the Superior Court in each County, and the State Bar of Arizona?
4. Should attorneys who admit that they performed inadequately in a capital
case be reported to the Arizona Supreme Court, the Presiding Judges of the
Superior Court in each County, and the State Bar of Arizona?
The Subcommittee concluded that, as to questions 1 through 4, an attorney whose
performance has been inadequate should not automatically be removed from the list of
eligible counsel, or automatically required to undergo continuing legal education. Judges and
lawyers in such a case should comply with their duties under Ethical Rule 8.3 which requires
reporting of another lawyer's conduct to the State Bar when the reporting lawyer has actual
knowledge of a violation of the Rules of Professional Conduct, and that violation raises a
substantial question as to the lawyer's honesty, trustworthiness or fitness as a lawyer in other
respects. The Subcommittee believes that the Bar and the criminal justice system may
properly rely on the duty to report imposed by the ethical rules. The Subcommittee believes
there is no duty to report inadequate or deficient performance in a capital case or any other
criminal case to the county authority which appoints and employs counsel representing
indigent defendants. The Subcommittee does not believe that there needs to be any
recommendation to judges or attorneys that they report such conduct to the county's indigent
defense authorities.
5. What role should the state public capital defender play in evaluating the
performance of private and public defense counsel in capital cases?
As to question 5, the Subcommittee believed that the State Capital Public Defender should
play no role in evaluating the performance ofprivate and public defense counsel, and that the
reporting requirements under Ethical Rule 8.3 are more than adequate to ensure that lawyers
who do not render competent representation are reported to the Bar, disciplined where
appropriate, undergo continuing legal education where appropriate, and that their future
employment should be left in the hands of the appointing authorities in each of the counties.
The Subcommittee emphasized to the Commission that the reporting under Ethical Rule 8.3
should be on a case-by-case basis, and that a particular finding by a trial or appellate court
that an attorney's performance may have been inadequate does not in and of itself require
reporting under ER 8.3.
Nevertheless, the Subcommittee did fashion a recommendation for the full Commission
which addresses competence of trial defense counsel in capital cases. The Subcommittee
recommends that Ethical Rule 1 .l, Competence, be amended to specifically require attorneys
to meet the standards set forth in Ariz. R. Crim. P. 6.8. Because the standards in Ariz. R.
Crim. P. 6.8 have gained universal acceptance by the courts and criminal bar as necessary
to ensure adequate representation of capital defendants, these standards should apply to all
counsel in capital cases and not just counsel appointed by the court under Ariz. R. Crim. P.
6.8 to conduct indigent defense. The Subcommittee recommends Ethical Rule 1.1 be
amended to read:
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. 6.8 REGARDING STANDARDS FOR
APPOINTMENT OF COUNSEL IN CAPITAL CASES.
The Subcommittee also recommended that the Comment to ER 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 RECOMMENDS TWO LAWYERS BE ASSIGNED TO EVERY
CAPITAL CASE, LAWYERS ARE ADVISED TO ENSURE THAT TWO
LAWYERS REPRESENT EVERY CAPITAL DEFENDANT WHENEVER
FEASIBLE [IN TRIAL PROCEEDINGS].
b) Notice of Intent to Seek the Death Penalty under Ariz. R. Crim. P.
lS.l(g)
The Subcommittee considered extending the time for notice of intent to seek the death
penalty and recommended on November 14,2000 to the Commission that the time for filing
the notice be extended to 90 days after arraignment with stipulations by the parties to extend
the time further if approved by the trial court.
c) AggravationIMitigation and Sentencing Hearings in Capital Cases
At five meetings, the subcommittee debated extensively the proper role of victim impact
evidence. On January 18,2001, the Subcommittee recommended to the Commission that
trial judges hear victim impact evidence during the aggravation and mitigation hearing well
before sentencing the defendant using the special verdict form. To provide context for the
victim impact evidence in capital cases, the victims in the 230 cases in which the death
penalty was imposed from 1974 to 2000 have been profiled. The findings are reported in
Exhibit 33 of the Data Set I Research Report.
After further meetings in February, March and May, the Subcommittee refined its
recommendations and recommended that the Commission approve a proposed amendment
to Ariz. R. Crim. P. 26.3. The rule will outline the sequence of the aggravatiodmitigation
and final sentencing hearings, and specify that the victim will be heard along with the
defendant's allocution at the aggravatiodmitigation hearing. The rule will state that the
completion of the sentencing process will take place at the final sentencing hearing, and that
hearing will occur no earlier than 7 days after the aggravatiodmitigation hearing is held.
The proposed rule change recommended by the Subcommittee reads:
Ariz. R. Crim. P. 26.3. Date of Sentencing; Extension
(Proposed language appears in uppercase)
********
c. Capital Case.
(1) Upon a determination of guilt in a capital case, the trial court shall set a date for the
aggravatiodmitigation hearing if the state, pursuant to Ariz. R. Crim. P. 15.1 (g)(4), is not
precluded from and is seeking the death penalty. The penalty hearing shall be held not less
than 60 days nor more than 90 days after the determination of guilt unless good cause is
shown. Upon a showing of good cause, the trial court may grant additional time for the
hearing subject to the limitation of subparagraph (2) below.
(2) A pre-aggravatiodmitigation conference shall be held after the return of a guilty
verdict of first degree murder in a capital case no more than 10 days before the
aggravatiodrnitigation hearing.
(3) AT THE AGGRAVATION/MITIGATION HEARING, THE TRIAL COURT
SHALL ALLOW THE VICTIM, AS DEFINED IN A.R.S. $13-703(H)(2), TO PRESENT
TESTIMONY OR INFORMATION REGARDING THE MURDERED PERSON AND
THE IMPACT OF THE MURDER ON THE VICTIM AND OTHER FAMILY MEMBERS.
THE TRIAL COURT SHALL CONSIDER THE INFORMATION PRESENTED BY THE
VICTIM IN ACCORDANCE WITH THE PROVISIONS OF A.R.S. $ 13-703(D).
B-5
Ariz. R Crim. P. 26.3 (continued)
(4) AT THE AGGRAVATIONMITIGATION HEARING, THE TRIAL COURT
SHALL ALLOW THE DEFENDANT THE RIGHT OF &LOCUTION.
(5) UPON COMPLETION OF THE AGGRAVATIONMITIGATION HEARING, THE
TRIAL COURT SHALL SET A DATE FOR THE RETURN OF THE SPECIAL VERDICT
AND SENTENCING. THE RETURN OF THE SPECIAL VERDICT AND SENTENCING
SHALL OCCUR NO EARLIER THAN 7 DAYS AFTER THE COMPLETION OF THE
AGGRAVATIONMITIGATION HEARING, TO ENSURE THAT THE TRIAL COURT
HAS ADEQUATE TIME PRIOR TO THE PREPARATION OF THE SPECIAL VERDICT
TO CONSIDER THE EVIDENCE, INFORMATION, AND ARGUMENTS PRESENTED
AT T