The Arizona Republic

Arizona’s death row cases face ‘reckoning’

Supreme Court rulings could lead to new trials

- Jimmy Jenkins and Elena Santa Cruz

Back-to-back U.S. Supreme Court rulings have put Arizona’s death penalty under the microscope and could have far-reaching implicatio­ns for how the state sentences convicted murderers.

Already, the rulings have forced another look at old capital cases.

As many as 30 of the 109 people on Arizona’s death row could have their death penalties — but not their guilty verdicts — reconsider­ed, legal experts say. It’s not yet clear how that might happen, but it could involve new sentencing hearings or trials.

The high court, in two separate opinions in late February, ruled Arizona courts disregarde­d case law for nearly 30 years.

The U.S. Supreme Court ruled that Arizona improperly sent people to death row by failing to tell juries the defendants would never be released if they were sentenced to life without parole. That violated defendants’ due process rights under the U.S. Constituti­on.

In case after case, the Arizona Supreme Court upheld death penalty verdicts, nonetheles­s. The new rulings force what one legal expert called a “reckoning” that could send shock waves through the state’s criminal justice system.

The state Supreme Court’s disregard for following this case law already has led to three men being resentence­d. Bryan Wayne Hulsey was handed the death penalty a second time, and Joel Escalante-Orozco was resentence­d to life in prison. The third, Jasper Phillip Rushing, is back in Maricopa County Superior Court for a sentencing do-over at the end of March.

Another six defendants could get new hearings. Nine of the 10 cases, including the three that were resolved a second time, were tried in Maricopa County, which is one of the most aggressive counties in the nation for seeking and securing capital punishment verdicts.

Maricopa County Attorney Rachel

Trial courts were not letting defense lawyers tell juries that parole did not exist in Arizona capital cases.

Mitchell said her office would abide by the ruling and look at the cases that were affected by the court’s decision.

The 10th case up for review involves John Montenegro Cruz, who was convicted in 2005 for the 2003 fatal shooting of Tucson police Officer Patrick Hardesty.

“This whole mess could have been avoided if the Arizona Supreme Court followed the law that has been in place for nearly 30 years,” said Dale Baich, a former assistant federal public defender.

The legal debate about this aspect of Arizona’s death penalty stems from the 1994 Supreme Court case Simmons v. South Carolina. It set the precedent for defendants to be able to tell juries that they would not be eligible for parole if they were sentenced to life in prison instead of death. But for many years, Arizona refused to apply the ruling.

The Supreme Court applied the Simmons standards to two sets of Arizona murder cases with different appeal circumstan­ces.

In late February, the U.S. Supreme Court ruled in favor of Cruz, who challenged his death sentence because jurors weren’t instructed at the time that if he were given a life sentence, it would be without parole.

The Cruz ruling, which relied on a key principle establishe­d in a 2016 case, Lynch v. Arizona, prompted the Arizona Supreme Court to vacate death sentences for three men. It means Cruz could get a resentenci­ng as well.

Days after the opinion in the Cruz appeal, the Supreme Court sent back six more death penalty cases to Arizona courts, granting review of a separate group of petitioner­s who argued the courts were “required” to apply the same standard for cases resolved before the Lynch ruling.

The lead petitioner was Johnathan Ian Burns, who was convicted and sentenced to death in 2010 in Maricopa County Superior Court.

The six Burns cases were decided after the Supreme Court’s Simmons ruling but before the Lynch opinion. They were unable to cite Simmons because their cases were resolved before Lynch, and the Arizona Supreme Court stated that the 2016 Lynch ruling was not a “significan­t change in the law,” which is a requiremen­t for a legal appeal called post-conviction relief.

But the Cruz petitioner­s could have been resentence­d under Lynch. Their direct appeals were still live after the 2016 ruling, essentiall­y forcing the hands of the Arizona courts to let defense lawyers inform juries of the defendants’ parole ineligibil­ity.

Trial courts were not letting defense lawyers tell juries that parole did not exist in Arizona capital cases and that those convicted in those cases would spend the rest of their lives in prison.

Trial court judges also were giving incorrect instructio­ns to the jury.

In the Cruz case, the court said unless Cruz were sentenced to death, he could be sentenced to life with the possibilit­y of parole or release from prison after 25 years.

Arizona courts have been “playing fast and loose” with the law since the Simmons ruling, Baich said.

“Twice in the past seven years, the state Supreme Court has been admonished and told to follow the law,” said Baich, who now teaches at Arizona State University’s Sandra Day O’Connor College of Law.

Burns’ lawyers, in briefs filed with the U.S. Supreme Court, condemned Arizona’s rulings.

“It is difficult to imagine a state rule that more clearly discrimina­tes against federal law than the one at issue here. It prohibits state postconvic­tion courts from applying decisions that federal law requires postconvic­tion courts to apply,” Burns’ lawyers wrote.

What happens next with Cruz and the six cases granted review by the U.S. Supreme Court in the Burns ruling will be sorted out by the Arizona Supreme Court and trial courts.

Colleen Clase, chief counsel for the Arizona Voice for Crime Victims, said, “In the cases impacted by Cruz, the realizatio­n of victims‘ constituti­onal rights to justice and finality will undoubtedl­y be delayed.”

County Attorney Mitchell declined to elaborate further on how she would review the cases or how she might direct prosecutor­s to approach filing and trying new murder cases.

The Supreme Court decision likely will affect other convicted murderers on death row.

For more details on the six death penalty cases returned to Arizona for sentencing review, find an expanded version of the story on

Newspapers in English

Newspapers from United States