Capital Case Crisis in Maricopa County, Arizona: A Response from the Defense
Dupont, Christopher, Hammond, Larry, Judicature
The decision on whether to seek death is left almost entirely to the unfettered discretion of an elected County Attorney.
Editor's note: this manuscript is in response to an article that follows on page 221 and first appeared in Arizona Attorney in November, 2011.
In March 2007, there were more than 140 capital cases pending in Maricopa County Superior Court. Fifteen of those people charged with death eligible offenses were without legal counsel.1
To put the numbers in perspective, at the high water mark there were 149 active death penalty cases in Maricopa County.2 At the same time, Los Angeles County had 36 capital cases pending, Clark County (Las Vegas) had 36 pending, and Harris County (Houston) had 17. That means Maricopa County alone had 65 percent more cases pending than the next three highest death penalty- charging jurisdictions combined. While Los Angeles and Harris County had less than one capital case pending per 100,000 residents and Clark County had less than two per 100,000, Maricopa County had nearly four death penalty cases per 100,000 residents.3
While the various stakeholders in the court system had different motivations and methods for reacting to what has commonly been called the capital case crisis, this article presents the defense perspective.
Arizona's murder statute and death-eligible offenses
In Arizona, the prosecution may elect to seek the death penalty if a person is charged with first-degree murder, and there is probable cause to assert one of fourteen aggravating factors. Significantly, many of the aggravating factors listed in the capital murder statute are identical to statutory aggravators that apply to every felony offense. For example, the state might allege as an aggravating factor that a murder was, "especially heinous, cruel or depraved"* or that that the murder was committed "with the expectation of pecuniary gain."5 Those same two aggravating factors could be alleged in any felony case6 and are often alleged in first-degree murder cases that do not proceed as death penalty cases.
The failure to distinguish capital murder aggravators from other, regular felonies produces unreliable and arbitrary results. Pointedly, a study by Arizona counsel in a recent death penalty case found the Maricopa County Attorney alleged 78 percent of capital cases were especially heinous, cruel or depraved; the same County Attorney also alleged that 23 percent of non-capital first degree murder cases were especially heinous, cruel or depraved.7
Because the statutory capital sentencing scheme in Arizona is so inclusive, it does not serve to narrow the class of murders that are death-eligible. Instead, the decision on whether to seek death is left almost entirely to the unfettered discretion of an elected County Attorney.
As another example, many states allow for allegations of prior serious felony convictions as a basis for seeking the death penalty; after all, such prior felony convictions tend to prove an historic propensity to commit future serious crimes. Arizona is the only state in the Union that permits an allegation of concurrent felony convictions. There are more than thirty felony offenses that qualify as serious pursuant to this section.8 The practical result is that, from a single incident involving an armed robbery and a resulting murder, a defendant might be charged with felony murder and therefore would be death-penalty eligible. The felony murder would be predicated upon armed robbery, and the same armed robbery could then be alleged as an aggravating factor in the capital litigation.
Serious felony offenses are such a common circumstance in homicide cases in Arizona the Coconino County attorney filed this particular aggravator in 100 percent of the cases selected for capital prosecution; the Maricopa County Attorney filed this aggravator in 60 percent of such cases.9
In the absence of legislation meaningfully restricting prosecutors from seeking the death penalty, it is not surprising there are significant inconsistencies between counties, and between County Attorneys even in the same County. …