Death penalty upheld:

Though he says he has serious misgivings about Arizona’s death-penalty statute, a Maricopa County Superior Court judge declines to find it unconstitutional. Plaintiffs say they will appeal.

A Maricopa County Superior Court judge on Friday denied a motion to find the state’s death-penalty statute unconstitutional, but he noted he was troubled by “the evolution of the death penalty” in Arizona.

“I’m troubled by the direction we’ve gone,” Judge Joseph Kreamer said.

But the case law trumped his opinion, he said.

There was a tacit understanding among the judge and attorneys that this ultimately will be a decision made by higher courts.

Defense attorneys challenging the statute said they likely will take the matter to the Arizona Court of Appeals.

Attorneys in 29 pending first-degreemurder cases combined to claim that state laws do not clearly limit which murders can result in death penalties. Under law established by U.S. Supreme Court decisions, death is supposed to be reserved for the worst of the worst murders, and statutes are supposed to define those cases.

The attorneys argue that Arizona law contains so many “aggravating factors” — circumstances that make the murder serious enough to warrant the death penalty — that virtually any murder qualifies.

They assembled data from 866 firstdegree-murder cases, claiming that 856 of them, or 98.8 percent, could be eligible for the death penalty because there were aggravating factors that applied to them.

Deputy County Attorney Jeannette Gallagher argued that the distinctions between first-degree murder, seconddegree murder, manslaughter and negligent homicide narrow the eligible cases.

And she interpreted the law as saying that all aggravating factors could not apply to one murder.

Aggravators are supposed to be applied individually to cases, she said.

There are 14 aggravating factors in the Arizona death-penalty law, including a crime committed for monetary gain; a crime that was excessively cruel, heinous or depraved; or a crime that involved a child or multiple homicides. The jury needs to find only one aggravating factor to then consider sentencing a defendant to death.

Kreamer challenged Gallagher to name a murder that would have no aggravating factors.

And, for the most part, he agreed with the defense attorneys.

“I’ll be clear: I am troubled by what I see as a lack of narrowing in the statute,” Kreamer said. “I think that’s problematic from a constitutional standpoint.”

But Kreamer noted that a 2003 Arizona Supreme Court decision had upheld the statutes and was cited in a subsequent decision.

He agreed with Gallagher that the charging decision between first- and second-degree murder was a start.

“The Supreme Court is going to have to decide if that’s enough narrowing,” Kreamer said.

After the hearing, Gary Bevilacqua, who argued on behalf of the defense attorneys, said, “I have never felt so vindicated by a loss.”