Attorney General Kris Mayes has found some allies in her dispute with Maricopa County District Attorney Rachel Mitchell over who should seek Aaron Gunches' execution.
In a new legal filing, former Attorney General Terry Goddard and two former district attorneys, Republicans Rick Romley of Maricopa County and Barbara LaWall of Pima County, joined forces to urge the Supreme Court to deny Mitchell's request for an execution warrant. They said the state's history of the death penalty and related legislation make it clear why the attorney general's office bears the responsibility.
And attorney Andrew Stone, who filed the brief as amicus curiae, said his clients believe Mitchell's position is “bad policy and impractical.”
At stake is the life of Aaron Gunches, who pleaded guilty to the premeditated murder and kidnapping of Ted Price, his girlfriend's ex-husband, in 2002.
At the request of then-Attorney General Mark Brnovich, an execution warrant was issued in 2022. But this temporary warrant expired before the execution was carried out.
Mayes, who will be re-elected in 2023, has declined to seek new office for now.
The attorney general said she was awaiting a report from a special commission on the death penalty appointed by also-newly elected Governor Katie Hobbs. She said the process remains riddled with questions.
“The recent executions have been marked by controversy,” the governor said. There were reports that prison staff repeatedly had problems providing intravenous access to the condemned.
“The death penalty is a controversial issue anyway,” Hobbs continued. “We just want to make sure that the practices are reasonable and that there are no botched executions like we've seen recently.”
This report is not expected to be available before the end of the year.
But Mitchell insists she simultaneously has the authority to ask the Supreme Court on behalf of “the state” to set a date for Gunches' execution, which triggered the brief from Goddard, Romley and LaWall.
Setting such a precedent, the three former elected officials tell the judges, is a bad idea.
“The Maricopa District Attorney believes her office is representing the state in some procedure so that it is empowered to inform the State in any “The Commission may change the procedure at any time by adhering to the approach it has chosen,” it says in its legal opinion.
It begins, it says, with state laws, which stipulate that the Attorney General is the “chief judicial officer” who must “prosecute and defend before the Supreme Court all proceedings to which the respective state is a party.”
In contrast, they claim, the 15 district attorneys can represent the state and “conduct all prosecutions for public offenses, but only within their respective districts.” And the trio claim this was never understood to extend to seeking execution warrants.
There is a more practical problem.
Consider what would happen if a prosecutor argued that he or she had the authority to speak on behalf of “the state” in a criminal case.
“This would require the courts to resolve internal disputes among the various prosecutors claiming to represent 'the state' before turning their attention to the real problems facing the state,” Stone wrote on behalf of the former prosecutors.
“Arizona’s courts are sufficiently busy without forcing judges to decide conflicting arguments from the same party”, prosecutors argued. “The Maricopa District Attorney's motion would do little more than introduce confusion into an otherwise well-understood and agreed-upon process.”
And there's another thing: applying for a writ of execution is more complex than simply submitting a piece of paper to the Supreme Court.
“There are dozens of applications being submitted after This Court grants the State's motion to set a schedule for a writ of execution hearing,” they noted. And they pointed out that the Attorney General's Office was funded by the Legislature specifically for post-conviction proceedings.
“Allowing one prosecutor to seek a writ of execution but not to litigate the subsequent case would be like allowing one prosecutor to prosecute a dozen defendants in a complex fraud case but then forcing another prosecutor to do all the subsequent work,” the brief said.
“Indictment, like an application for a warrant, is the easy part,” it continues. “Obtaining a conviction and dealing with the associated appeals issues in capital crimes is much more difficult.”
Mitchell declined to be interviewed about the complaint, instead submitting her own legal brief, saying it merely reiterated Mayes' “unfounded and untenable legal conclusions” about her authority.
It begins with the stated reason for the delay: the “independent review of the death penalty.” Mitchell said that is irrelevant to the current case because there is no doubt that the legal requirements for issuing an execution warrant have been met, just as they were when Brnovich obtained the first order.
And Mitchell also says that the attempt to block her proceedings ignores the victims' constitutional and legal rights.
That includes ensuring “a prompt and final conclusion to the process following conviction and adjudication.” And Mitchell has said that Karen Price, Ted's sister, and his daughter Brittney Kay have asserted those rights and asked her for help in enforcing them, which she said she is required to do under state law.
In conclusion, Mitchell said that while the attorney general may have some “supervisory authority” over district attorneys, it does not extend to her “legally supported attempt to exercise absolute control.”
Several current district attorneys believe Mitchell is exceeding their authority.
Coconino County District Attorney William Ring said he was unfamiliar with the process because his county has not sought the death penalty in years. And the Democrat said he saw no need to seek the attorney general's concurrent jurisdiction in initiating an execution warrant.
“Obtaining an execution warrant at the same time only invites a race to the death chamber,” he said. “That would be confusing for the victims' representatives and embarrassing for the state.”
Pima County District Attorney Laura Conover, also a Democrat, has a more fundamental problem with the whole issue and the contradictions in Mitchell's effort to “speak for the state” on the issue, particularly in contradiction to the attorney general's opinion.
“We have a death penalty like Maricopa's, not Arizona's, because the rest of the state can't afford it or won't tolerate it,” she said. “The quickest and most efficient way to avoid this inconsistency is for Arizona to stop tinkering with the death machine statewide.”
Several Republican district attorneys contacted Capitol Media Services declined to comment on whether Mitchell has the authority to seek an execution warrant.
Mayes has never said she will refuse to ever seek execution warrants, even if the death penalty commissioner's report is released. But like Conover, she has said it's a question of whether where someone commits a crime affects the sentence.
“I'm particularly interested in whether there are differences among Arizona counties when it comes to the death penalty,” she said when the moratorium was first announced.
““It's beginning to look like the death penalty is being sought in Maricopa County only because Maricopa County can afford it,” the attorney general said, noting the enormous costs of prosecutors and defense attorneys devoting years, sometimes decades, of their time to just a handful of cases. “We need to understand that better before we move forward.”
Statistics show that about 60 percent of Arizona's residents live in the state's largest county, compared to nearly 73 percent of those sentenced to death by courts there.
