A Court's Remarkable Recovery from a Capital Case Crisis

Article excerpt

Editor's note: an earlier version of this article was published in Arizona Attorney in November, 2011.

In April and May, 2009, Arizona Attorney Magazine published, in two parts, "The Capital Case Crisis in Maricopa County: What (Little) We Can Do About It"1 Our goal in that piece was to explain the complexities of the preparation and trial of such cases, the steps required, and the participants involved, as a way to explain why capital cases take so long to try. We also discussed how they eventually resolve at the end of a long state and federal appellate and post-conviction relief process. On average, the length of time from arrest until execution of the sentence is 20 years.2

As of Aug. 31, 2008, the time frame used in the article, the capital caseload in Maricopa County Superior Court appeared dire, with few apparent options to reduce capital cases awaiting trial.3

As of July 1, 2011, almost three years later, the situation has changed drastically. This follow-up article sets forth the reasons for this turnaround and the continuing steps the court has adopted to deal with the problem of too many capital cases to try with an insufficient number of judicial officers, courtrooms,4 experienced lawyers and mitigation specialists. We believe that what we describe may be used as a model for other jurisdictions faced with a similar problem, now or in the future.

The Situation in August 2008

We made the following observations about the situation existing in Maricopa County Superior Court, where most Arizona capital cases are tried,5 as of Aug. 31, 2008:

* There were 136 active untried capital cases6 (this was one of the largest inventories of such cases in a single court in the United States).

* It was estimated that it would take the court nine years - until 2017 - to process the 136 cases if no other capital cases were ever filed.7

* Since Jan. 1, 2008, and until the date of publication in April 2009, the court had received an average of 3.4 capital cases a month to try.

* Approximately 24 capital cases per year on average were resolved in Maricopa County Superior Court, usually 8 by trial and 16 by settlement (where the notice of intent to seek the death penalty was withdrawn resulting in a plea) or otherwise.8

* The list of pending capital cases had grown over time because the rate of disposition had not kept pace with new case filings.

Built into the previous statistics and responsible in great measure for the crisis, the reader was asked to assume that:

* Capital cases take two to six months to try due to the three phases of such cases: the guilty /not guilty phase, the aggravation phase and the penalty/sentencing phase.

* With 240 work days per year, and 21 judges actually trying capital cases, the court could only try about 13 cases a year.

Since the first article:

* Experience has shown that capital cases take an average of approximately 41 days,9 including trial and pre-trial hearings; instead of each capital judge being available for capital matters 240 days per year, because of law and motion days, there are on the average 175 days available per judge per year.

* Instead of 21 judges trying the cases, the court has dedicated six judges - about 25 percent of the judges assigned to the criminal bench - to handle capital cases; although judges other than the capital trial judges still try these cases, the majority are tried by the capital judges.

* Given recent history, it is estimated that instead of 13 trials per year, if all six capital judges did nothing but try capital cases four days a week, the court could try 25 capital cases per year. (There were 20 capital cases tried in Maricopa County in 2010, more than were tried in all the United States District Courts combined during that same time period.)

The Situation in July 2011

Beyond all expectations, as of July 1, 2011, almost three years later, the situation has drastically changed:\

* There are 66 (instead of 136) capital cases awaiting trial or other disposition. …