Course of least resistance

As of February, 15 capital murder cases were assigned to the Public Defender’s Office, 11 to the Legal Advocate and nine to the Legal Defender. The Office of Contract Counsel, which is directly under Phillis, had 30, which she had to divide between 16 first-chair death-qualified attorneys and 12 second chairs. It’s not the first time. In 2007, for example, former County Attorney Andrew Thomas filed so many death notices that the system crashed. At that time, Maricopa County had 130 to 140 pending capital cases. Pima County had four.

This time, Montgomery acted quickly.

According to an email Phillis sent to The Republic: “Attorneys became available when the (county attorney) chose not to pursue death notices in a few cases and two defendants received life (sentences).”

Later she specified that Montgomery’s office had chosen not to pursue death in five cases that were in question. He has that discretion.

Most recent death-penalty cases haven’t gone to trial.

According to Superior Court administrators, prosecutors resolved 20 cases in fiscal 2015. Of those, three were dismissed, 11 ended in plea deals, six went to trial, and four defendants were sentenced to death. Meanwhile, eight new cases were filed.

In fiscal 2016, seven cases were resolved. Four went to trial. Two resulted in death sentences. The office filed 11 new death cases, however.

So far in fiscal 2017, eight capital cases have been resolved. None ended in death sentences. Ten new capital cases have been filed.

All have been defended as capital cases, driving up costs.

An audit commissioned by Phillis’ predecessor at the Office of Public Defense Services examined trial costs from 2011 to 2015. It found it cost about $27,000 to defend a non-capital murder defendant at trial. But if the death penalty is sought, the defense cost jumps to $213,000, even if the case later is pleaded down to a lesser offense or a lesser sentence.

When a capital case goes to trial and ends in a life sentence, it costs $580,000 to defend. And if it ends in a death sentence, it can cost $1 million, not including the price of federal appeals.

“This is where the rubber meets the road in this system,” defense attorney Larry Hammond said. “The Legislature gives the prosecutor tremendous power. It is up to the discretion of a publicly elected prosecutor (to decide) who gets death and who does not.”

“I think seeking death is the course of least resistance,” Hammond added. “You do not want to be thought of as soft if you’re in that office.”