Arizona

Arizona

In Dissent, Judge Says Death Penalty Violates Arizona State Constitution

An Arizona appeals court judge has urged the state's supreme court to rule that the death penalty violates Arizona's state constitutional prohibition against cruel and unusual punishment. In an August 16, 2018 opinion dissenting from the Arizona Supreme Court's affirmance of death-row prisoner Jason Bush's conviction and sentence, Court of Appeals Judge Lawrence Winthrop (pictured)—sitting by designation in the case because of the recusal of one of the high court's justices—wrote that "[t]he death penalty not only inflicts unnaturally cruel punishment, but the application and implementation of the death penalty is, at best, arbitrary and capricious." According to Judge Winthrop, the dangers of wrongful convictions and death sentences, systemic "flaws in administering the death penalty, and our historic inability to devise a method to implement the death penalty free from human bias and error" require that the death penalty be declared unconstitutional. His opinion catalogued a range of problems in Arizona's application of capital punishment, including racial bias, wrongful convictions, and geographic disparities. The death penalty, he also wrote, "has been shown to ... impose unintended trauma on the victim’s family and friends, and to be cost prohibitive. ... [G]iven the continued reports that demonstrate defendants may be sentenced to death because of jurors’ inherent bias, and studies that demonstrate the death penalty has no identifiable deterrent effect, the answer to the question of whether the cost of the death penalty outweighs the societal benefit is a resounding, 'No.'” Judge Winthrop's dissent echoes many of the themes of—and frequently quotes from—U.S. Supreme Court Justice Stephen Breyer's dissent in Glossip v. Gross (2015), which questioned whether the death penalty, as applied today, violates the U.S. Constitution. "We simply can no longer ignore the seemingly inherent variants and problems associated with implementing the death penalty," Judge Winthrop wrote. "To continue to affirm the enforcement the death penalty, given what we now know, is to approve a punishment that is both cruel and unusual." The court majority in Bush's case upheld his conviction and death sentence, rejecting a variety of arguments that the trial and sentencing were constitutionally flawed. The majority "express[ed] no opinion ... [on] the validity of capital punishment under Arizona’s Constitution," reserving that judgment for a case in which "the issue [were properly] raised, developed, and argued." However, Bush's case, they wrote, was "not the appropriate case to address or decide" that issue.

Federal Judge Grants New Trial to Barry Jones Based on Evidence Suggesting His Innocence

A federal district court has vacated the murder conviction of Arizona death-row prisoner Barry Jones (pictured) in the death of 4-year-old Rachel Gray, and has ordered the state to immediately retry or release Jones. On July 31, 2018, U.S. District Judge Timothy Burgess granted a new trial to Jones, who has spent 23 years on Arizona’s death row, finding that if Jones had been competently represented at trial, “there is a reasonable probability that his jury would not have convicted him of any of the crimes with which he was charged and previously convicted.” Jones has consistently maintained his innocence. Jones’s case was tainted by what Judge Burgess called a “rush to judgment” by police investigators. His conviction was based largely on questionable eyewitness testimony from two 8-year-olds, combined with unreliable forensic testimony. A medical examiner who testified against Jones later gave contradictory testimony about the timing of the victim’s fatal injury that would have ruled out Jones as a suspect. Police failed to investigate evidence pointing to other suspects, and Jones’s defense team failed to examine alternative theories of the crime. Jones was also convicted of raping Gray, despite the lack of any evidence that the alleged rape occurred at the time she sustained her fatal abdominal injury. Judge Burgess found that both Jones’s trial lawyer and the lawyer Arizona appointed to represent him in his state post-conviction proceedings were ineffective, and that both failed to conduct professionally appropriate investigations into the case. He wrote that trial counsel “failed to perform an adequate pretrial investigation, leading to his failure to uncover key medical evidence that Rachel’s injuries were not sustained on May 1, 1994”—the day the prosecution said Jones raped and killed her—and unreasonably “fail[ed] to impeach the state’s other physical and eyewitness testimony.” Sylvia Lett, Jones’s former appellate attorney, summarized the judge’s findings, saying, “He saw the state’s investigation for what it was, which was shoddy, the defense investigation for what it was, which was nonexistent, and he said, ‘That’s not fair.’ And that’s how it’s supposed to work.” A decade ago, the federal courts would have considered Jones’s ineffective assistance claim waived because of his prior lawyers’ failures to raise it in state court, and Jones likely would have been executed. However, in 2012 in Martinez v. Ryan, the U.S. Supreme Court ruled that federal habeas corpus courts may review a state prisoner’s claim that his trial lawyer was ineffective if the failure to raise the claim in state court resulted from additional ineffective representation by his state post-conviction lawyer. The federal courts had originally refused to hear Jones’s claim, but after Martinez was decided, the U.S. Court of Appeals for the Ninth Circuit sent the case back to the district court for further consideration.

Supreme Court Declines to Review Arizona Case Challenging Constitutionality of Death Penalty

The U.S. Supreme Court has declined to review a sweeping challenge to the constitutionality of capital punishment brought by Arizona death-row prisoner Abel Hidalgo (pictured). After scheduling consideration of Hidalgo v. Arizona for ten separate court conferences, the Court on March 19 unanimously denied Hidalgo’s petition for writ of certiorari. In a statement issued in conjunction with the Court’s ruling, however, Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, expressed concern about a second issue raised by Hidalgo—the constitutionality of Arizona’s method of deciding which defendants are eligible for the death penalty. The four justices said that the Arizona Supreme Court had misapplied Supreme Court precedent on that “important Eighth Amendment question,” but believed the factual record was insufficiently developed to warrant the court’s review of the case at this time. Hidalgo had presented records from more than 860 first-degree murder cases over an eleven-year period in Maricopa County—where he was charged—showing that 98% of first-degree murder defendants in that county were eligible for the death penalty, but had been denied an evidentiary hearing to further develop the issue. This “evidence is unrebutted,” the four justices said, and “would seem to deny the constitutional need to ‘genuinely’ narrow the class of death-eligible defendants.” Although “[e]vidence of this kind warrants careful attention and evaluation,” they wrote, the absence of an evidentiary hearing had left the Court with a factual record that “is limited and largely unexamined by experts and the courts below.” With an “opportunity to fully develop a record with the kind of empirical evidence that the petitioner points to here,” the four justices said, “the issue presented in this petition [would] be better suited for certiorari.” The court declined without comment to review a broader challenge Hidalgo presented to the constitutionality of capital punishment itself. Hidalgo is one of many death-row prisoners to raise that issue in the wake of a 2015 dissent by Justices Breyer and Ginsburg in Glossip v. Gross in which they said it is “highly likely that the death penalty violates the Eighth Amendment” prohibition against cruel and unusual punishments.

Virginia Death-Row Prisoners Win “Landmark” Prison Conditions Lawsuit

In what lawyers for Virginia death-row prisoners have called “a landmark ruling,” a federal judge has issued an injunction barring the Commonwealth from subjecting prisoners who have been sentenced to death to automatic solitary confinement, physical isolation from visitors and other prisoners, and other harsh conditions. In a decision issued on February 21, Judge Leonie M. Brinkema wrote that the conditions to which Virginia subjected death-row prisoners before instituting reforms in 2015 violated the Eighth Amendment proscription against cruel and unusual punishments. Virginia had refused to commit to keeping the reforms, which it adopted only after the prisoners initiated suit, and the court's order prevents the state from reverting to the prior unconstitutional conditions. Before 2015, death sentenced prisoners spent about 23 hours a day alone in a 71-square-foot prison cell and were separated from visitors—including family members—by a plexiglass wall, although the warden had discretion to permit contact visits with family. For one hour a day, five days a week, prisoners were taken to a small “outdoor cell” with a concrete floor and no exercise equipment. Death-row prisoners were barred from the recreational facilities used by prisoners in the general population and allowed to shower only three times per week. Brinkema decided in favor of the three remaining death-row prisoners who had sued the state in 2014. While the suit was pending, one of the orginal plaintiffs, Ricky Gray, was executed and another, Ivan Teleguz, was granted a commutation. Lawyers for the prisoners said Brinkema's decision was the first time a court had ruled such conditions unconstitutional. In granting the prisoners' petition, the court said that “the rapidly evolving information available about the potential harmful effects of solitary confinement” set this case apart from prior prison-conditions lawsuits, and as a result the prior “decades-old determinations” by the Supreme Court and federal appeals court upholding death-row prison conditions were not binding. “As courts and corrections officers across the country have begun to realize, the years-long isolation that the pre-2015 conditions of confinement forced on plaintiffs created, at the least, a significant risk of substantial psychological and emotional harm,” Brinkema wrote. Kathryn Ali, one of the lawyers for the prisoners, said “[t]he law in this area is very bad but it's also very old. ... Judge Brinkema's ruling is a landmark ruling but i think its also just common sense, that we shouldn't be torturing people by keeping them in isolation.” Victor M. Glasberg, who filed the lawsuit on behalf of the five original plaintiffs in 2014, said the court's decision could have implications for prison-conditions lawsuits in other states. “This opinion should serve as a snowball let loose at the top of a snowy mountain, to turn into an avalanche as advocates in other states bring similar suits to end what has become increasingly recognized as untenable conditions in which to hold human beings,” he said. Under the reforms Virginia implemented in 2015, death-row prisoners are permitted to have contact visits with family members one day per week, for up to an hour and a half, as well as non-contact visits on holidays and weekends. They now have access to a covered outdoor yard for up to an hour and a half per day, five days a week. The yard has a basketball court and exercise equipment, which up to four prisoners at a time may share. Virginia now also permits daily one-hour access for up to four prisoners at a time to an indoor recreation space that has games, music, and a television. Death-row prisoners also are now permitted to shower daily.

Arizona Prosecutors Drop Death Penalty in Two Cases, Citing High Costs and Lengthy Legal Process

Prosecutors in Mohave County, Arizona announced in February that they will drop the pursuit of the death penalty in two murder cases in the county. Justin Rector and Darrell Ketchner were separately charged with first-degree murder, and officials said their defense teams had already spent over $2.2 million preparing for trials that are still far from taking place. Mohave County Attorney Matt Smith said, “Everybody’s looking to save money and these death penalty cases are extremely expensive." The murders happened in 2009 and 2014, but because of the thorough investigation and preparation required to competently defend a death-penalty case, Smith said, "[t]he anticipated soonest trial date in this case will be 10 years after the events charged." Even if the defendants were sentenced to death, "there is no reasonable likelihood of the death penalty actually being imposed in a realistic and efficient timeframe given the current state of affairs surrounding persons sentenced to death," he said. Bob Allison, whose granddaughter, Ariel, was allegedly killed by Ketchner, said he approves of the prosecutor's decision, in part because his other grandchildren were being bullied as a result of publicity around the case. “We’re OK with it because we want to protect the kids,” he said. “It’s a waste of money in my opinion and the end results are going to be the same.” Between fiscal years 2010 and 2018, Mohave County has spent nearly $3.6 million on defense costs in death-penalty cases. Because no lawyers in the county public defender’s or legal defender’s office meet the state's qualifications to handle death penalty cases, the county must contract out for those services, paying lead counsel at a rate of $125 per hour and $90 an hour for second-chair counsel. In 2016, the Mohave County Board of Supervisors authorized $344,000 in county funds to cover the costs of trying Rector and Ketchner. A Mohave County Superior Court judge granted the prosecution's motion to withdraw the death penalty in Rector's case on February 20, and allowed death-penalty counsel to withdraw from representing Rector. The court granted the motion to drop the death penalty in Ketchner's case on February 14. Only one case originating in Mohave County has ever resulted in an execution.

Junk Forensics, Misconduct, and an Inept Defense Raise Questions of Innocence in Arizona Child-Rape/Murder Case

Arizona death-row prisoner Barry Jones (pictured) has said for the twenty-three years he has been on death row that he never raped or murdered his girlfriend's 4-year-old daughter, Rachel Gray. In a pair of recent articles for The Intercept, reporter Liliana Segura describes the inconsistent medical testimony, police "tunnel vision," inept defense lawyering, and other "hallmarks of wrongful convictions" that led to a federal court evidentiary hearing last Fall that could overturn Jones's 1995 rape and murder conviction and death sentence and potentially set him free. Rachel died of peritonitis, an inflammation of her inner abdomen caused by an injury she sustained that had ruptured her small intestine. At Jones' trial, Dr. John Howard, the local medical examiner who conducted the autopsy, testified that the injury that caused her death had occurred about 12 hours before she died, at a time she was known to have been with Jones. However, when Howard later testified at the trial of Rachel's mother, he provided a self-contradictory opinion that suited the prosecution's case against her, asserting that the injury had likely occurred at least 24 hours before Rachel's death. Although the defense had contacted an independent pathologist—Dr. Phillip Keen—in 1994 to review the autopsy findings, Jones's lawyers never sent Keen images of the tissue slides or other evidence necessary to determine when the fatal injury occurred. The defense lawyers—and the police—failed to investigate evidence pointing to other suspects, including evidence that Rachel had been physically abused by her mother and bullied by a young boy who had pushed her and hit her in the stomach with a metal bar a few days before her death—exactly the type of injury that could have caused peritonitis. Further, there was no physical evidence suggesting that Rachel had been raped at the time she sustained the fatal abdominal injury. Rather, the evidence suggested that Rachel may have been sexually abused by a prior boyfriend of her mother, well before Jones became involved with the family. Jones's lawyers failed to call any expert witness at trial, and the only witness he presented was Jones's 12-year-old daughter. The prosecution also presented suspect eyewitness identification from two children who testified to having seen a man fitting Jones' description hitting a young girl in a van. Police, however, had questioned the two children in the presence of their mother, who had prompted some of their responses, and had failed to follow standard practices to avoid eliciting false memories. Jones's case has similarities to a number of other death-penalty cases in which defendants were wrongly convicted of murdering children. Sabrina Butler was wrongfully convicted and sentenced to death in Mississippi in 1990 when a local medical examiner testified that she had suffocated her nine-month-old son. Butler was exonerated in 1995 after medical evidence suggested that her baby died either of cystic kidney disease or from sudden infant death syndrome (SIDS). Rodricus Crawford was wrongly convicted and sentenced to death after a local doctor claimed he had suffocated his infant son. He won a new trial as a result of unrelated prosecutorial misconduct, and was exonerated in 2017 after national experts presented affidavits saying the autopsy results showed his baby had died from bronchopneumonia and sepsis. And Ha'im Al Matin Sharif was released from Nevada's death row in 2017, nearly 30 years after he was convicted of killing his girlfriend's 11-month-old daughter, after medical evidence revealed that the baby died from infantile scurvy, rather than from physical abuse. Oral argument for Jones's case is scheduled in federal court on March 2.

Arizona Ends Death-Row Solitary Confinement, Sees Reduced Prisoner Anxiety, Lowered Costs, and Increased Safety

Several months after Arizona settled a lawsuit over the conditions of confinement on the state's death row, the state has ended the practice of automatically housing condemned prisoners in solitary confinement, and prisoners and prison officials alike are praising the changes. Carson McWilliams (pictured), Division Director for Offender Operations in the Arizona Department of Corrections (ADC), told the Arizona Republic that the new incarceration conditions provide an "atmosphere where [prisoners] can socialize," resulting in "reduce[d] anxiety" that, in turn, "adds to safety control" of the prison. And, prison officials say, it has reduced institutional costs. Prior to the lawsuit, death row had meant 23-hour-per-day confinement in a concrete cell the size of a parking space, shuttered by a steel door with a perforated slot through which the prisoners would receive their meals, and with a bench bed and a sink attached to an uncovered toilet. Prisoners had no contact visits with families or lawyers, were handcuffed behind the back and subjected to body-cavity searches whenever they left their cells, and were restricted to showering or exercising three times a week. They also were denied prison jobs and educational opportunities. About the solitary conditions, McWilliams remarked, "The more you're restricted inside a cell, the more likely you are to have depression, to have anxiety, to have other types of mental problems that could lead to some type of problem inside the system, whether its self harm, or suicide, or aggression towards a staff member or towards another inmate." One death-row prisoner who was interviewed by the paper said, "It’s hard to explain the deprivation. . . . It weighs on your mind." McWilliams said it now requires fewer officers to manage death row because officers no longer have to deliver individual meals or individually escort each of the 120 prisoners. Kevin Curran, who has been a prison warden at various facilities run by the ADC, said that he "feels safer among the death-row men than among the career criminals and gangsters in the general population." Under the new conditions, prisoners are able to socialize with each other in activities such as playing basketball, volleyball, or board games, and can eat meals together. One ADC corrections officer told the Arizona Republic that he was "apprehensive" at first about the changes, but the transition has been "very good" with only a "few minor incidents," which were "a lot less" than he expected. 

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DPIC Year End Report: New Death Sentences Demonstrate Increasing Geographic Isolation

Nearly one-third (31%) of the 39 new death sentences imposed in the United States in 2017 came from just three counties, Riverside, California; Clark, Nevada; and Maricopa, Arizona, according to statistics compiled for DPIC's annual year end report. In a press release accompanying the annual report, DPIC said that the year's sentences reflect "the increasing geographic isolation and arbitrary nature of the death penalty." Riverside imposed five death sentences in 2017, Clark four, and Maricopa three, and no other county imposed as many as two. The other 3,140 counties and parishes in the country imposed 27 new death sentences, fewer than the record low total of death sentences imposed in the country last year. These three counties were featured in a 2016 report by Harvard University's Fair Punishment Project of the most prolific death sentencing counties in the country. That report found that the death penalty high-use counties tended to share "a history of overzealous prosecutions, inadequate defense lawyering, and a pattern of racial bias and exclusion," among other criminal justice issues. In a recent article about DPIC's year end report published in the Desert Sun, Dunham said, "You don’t see counties that overproduce death penalties and are model citizens in the administration of justice as a whole." Current Riverside County District Attorney Mike Hestrin told the paper that he “strenuously” objected to that characterization, which he called "a bunch of nonsense." Riverside County Public Defender Steven Harmon said that while the county has historically overused the death penalty, Hestrin, who took office in 2015, "has taken a far more measured approach to deciding in which cases he should seek the death penalty.” The Desert Sun reported in 2016 "an astronomical rise in wiretaps" in Riverside county that was "so vast it once accounted for nearly a fifth of all U.S. wiretaps," including triple the number issued by any other state or federal jurisdiction in 2014. Riverside police ranked 9th in the nation in killings of civilians. 76% of those sentenced to death in Riverside between 2010 and 2015 were defendants of color, and during that time frame it imposed death sentences at a rate that was 9 times greater per homicide than the rest of the state. All six defendants sentenced to death in Riverside in 2016 or 2017 were black or Latino. Riverside has imposed more death sentences than any other county in the country over the last five years, and 2017 was the second time in the last three years that it sentenced more people to death than any other county. Its five death sentences constituted 45% of the death sentences imposed in California this year, and more than were imposed by any other state. Four other southern California counties (Los Angeles, Kern, Orange, and San Bernardino) are also among the ten most prolific death sentencers in the past five years, and the region has been dubbed "the buckle of a new death belt." Riverside County alone has imposed 8.5% of all new death sentences in the country since 2013, and the five-county "death belt" has imposed 21.8%. By contrast, Harris County, Texas, which has executed more people than any other county, produced no executions or death sentences this year. Only 15% of all counties in the U.S. have ever imposed a death sentence that resulted in an execution. (Click image to enlarge.)

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