Death penalty
cases have the potential of being deathpenalty cases. We have to assign people.”
A supervisor at another of the county’s four indigent-defense agencies said, “We’re almost always within a case or two of running out of them (attorneys).”
Yet another called it “a strain on resources.”
A capital murder trial that ends in a life sentence costs about a half-million dollars to defend, more than 21 times the cost of defense in a first-degree murder trial where the death penalty is not sought, according to an audit commissioned in 2015 by the county Office of Public Defense Services. A capital case that ends in a death sentence costs 40 times more, the added cost driven by post-conviction legal activities designed to keep the defendant off the lethal-injection table.
Often, death-notice cases filed by the Maricopa County Attorney’s Office end in plea agreements.
“For a variety of reasons, it appears that juries in Maricopa County are less willing to return death verdicts in trials for first-degree murder than they once were,” said John Canby, an attorney who works for the Maricopa County Public Defender’s Office and sits on the Capital Defense Review Committee, an informal group that advises the indigent-defense agencies.
“Nevertheless,” Canby said, “it seems that the County Attorney’s Office is still willing to seek death sentences in cases with only a remote possibility of a death verdict. That practice costs the taxpayers of Maricopa County a lot of money, because the court is required to appoint capital-qualified attorneys to those cases, even if the possibility of a death sentence is in fact very remote.”
At present, there are 65 active deathpenalty cases in Maricopa County Superior Court, according to court administrators.
On Jan. 31, Christina Phillis, who recently took over direction of the Office of Public Defense Services, sent an email to Superior Court Presiding Criminal Court Judge Sam Myers saying that she could not find attorneys for a capital case. Phillis’ office oversees all of the county’s criminal-defense agencies for indigents: the Office of the Public Defender, the Office of the Legal Defender, the Office of the Legal Advocate and the Office of Contract Counsel, which hires outside attorneys to handle cases the other agencies can’t take.
Pushing past capacity
The death sentence, according to U.S. Supreme Court case law, is supposed to be reserved for the “worst of the worst” cases. To get a death sentence, prosecutors must prove there is at least one “aggravating factor,” chosen from a statutory list, and that the aggravation outweighs any mitigating factors presented by the defense.
County defense attorneys have long argued that there are so many aggravating
“The Legislature gives the prosecutor tremendous power.”
factors in the state’s death-sentence statute that prosecutors can seek death in nearly every first-degree murder case, blurring what constitutes the worst of the worst. On March 15, however, the Arizona Supreme Court ruled in a murder appeal that the statute is adequate and that prosecutors indeed have the discretion to make death-penalty decisions.
According to several members of the Capital Defense Review Committee, a former head of the county attorney’s homicide unit used to inform them of cases in which they were likely to seek the death penalty, so they could plan accordingly.
But under Deputy County Attorney Jeannette Gallagher’s direction, that is It also triggers the appointment of capital defense teams.
On Feb. 6, Phillis sent an email to Montgomery.
“Something change with the way your office is handling 1st degree murder cases?” she asked. “OPDS and the staffed office have been assigning capital teams after the initial arraignment, on cases they believed had the potential to become capital. The past procedure has allowed for ethical, efficient and cost-effective representation.
“Recently, on almost every 1st degree case the assigned attorney is being asked if they want to submit mitigation for the capital review team and/or agree to an extension regarding a motion to