Arizona Attorney General Kris Mayes and Maricopa County Attorney Rachel Mitchell are squabbling over who gets to decide when to execute Aaron Gunches.
And the question the Arizona Supreme Court will have to decide is which of them represents “the state of Arizona.”
The attorney general filed legal papers this week asking the justices to ignore the request by the Maricopa County attorney to schedule a hearing to get a warrant of execution. Put simply, Mayes is telling the judge that while Mitchell’s office did prosecute Gunches, her purview ended when he was sent off to death row.
“Thus, the authority to request a warrant of execution ... rests exclusively with the attorney general,” she told the court.
But more than the future of Gunches is at stake here. There is still the open question of whether the state will ever resume executions after Mayes, shortly after taking office in January 2023, told the justices she won’t seek new warrants, at least for the time being.
Specifically, the attorney general said she is waiting for the findings of the Death Penalty Independent Review commissioner named at the same time by Gov. Katie Hobbs, also new to her office.
That report, however, may not be done until the end of this year. And, depending on the findings, it could lead to the conclusion that there is no acceptable way to put inmates to death.
That commissioner is tasked with conducting a full review of the process, ranging from how and where the state gets its execution chemicals to transparency and media access and the procedures and protocols used by the Department of Corrections, Rehabilitation and Reentry used to put condemned inmates to death, including the training of those prison officials involved.
Arizona resumed executions in 2022 after an eight-year pause following the botched procedure when Joseph Wood was given 15 doses of a two-drug combination over two hours. Three inmates were put to death in 2022.
Hobbs, however, said the process has remained plagued by questions.
“Recent executions have been embroiled in controversy,” she said in appointing retired Judge David Duncan. That included reports that prison employees had repeated problems in placing the intravenous line into the veins of the condemned men.
“The death penalty is a controversial issue to begin with,” the governor continued. “We just want to make sure the practices are sound and that we don’t end up with botched executions like we’ve seen recently.”
Hobbs made it clear at the time that none of this means the state will never resume executions of the 107 men and three women on “death row,” now up to 109 and three.
“That is not up to me,” she said. “It is up to the attorney general.”
“We just want to review the practices and make sure that if we are conducting executions that they’re done as humanely and transparently and as consistently with the law as possible,” Hobbs said at the time.
But the governor has repeatedly refused to divulge her own beliefs on the death penalty, saying they are not relevant.
In fact, the governor has no role at all in deciding who does or does not get executed.
It is solely up to the attorney general to ask the Arizona Supreme Court for the necessary warrant to execute someone once all appeals have been exhausted. And unlike some states, the governor here cannot unilaterally pardon someone or commute a sentence without first getting a recommendation to do so from the Arizona Board of Executive Clemency.
All that leads to the current dust-up.
Gnches pleaded guilty to first degree murder and kidnapping in the 2002 death of Ted Price, his girlfriend’s ex husband.
His convictions were affirmed but the death sentence was thrown out. A new jury, however, reinstated the death penalty.
Gunches waived his right to post-conviction review and in November 2022 filed a motion on his own behalf seeking an execution warrant. That was joined the following month by then-Attorney General Mark Brnovich.
But Gunches withdrew that request in January 2023 and Mayes sought to withdraw the warrant.
The high court refused. Only thing is, the warrant — which has a fixed time limit — expired before the execution was carried out. And Mayes has refused to seek a new one.
Mitchell last month asked the Supreme Court to issue a new warrant. And now Mayes telling the justices to ignore her request.
What it all comes down to, the attorney general said, is that it is her office that represents the Arizona Department of Corrections, Rehabilitation and Reentry which has legal custody of Gunches and represents the state in all post-conviction proceedings in cases of capital punishment.
“Maricopa County Attorney’s Office does not represent the state, is not a party to this case, and is not authorized to seek a warrant of execution,” she said. And, legal authority aside, Mayes said having Mitchell’s office involved “would invite chaos into legal proceedings before this court and others in the capital context, and beyond.”
Mitchell, for her part, said there are other things to consider like the Victims’ Bill of Rights which is part of the Arizona Constitution.
One of the provisions says that victims are entitled “to a speedy trial or disposition and final conclusion of the case after the conviction and sentence.” And the Karen Price, Ted’s sister, as well as Bittney Kay, his daughter, filed suit to allow the execution to proceed.
That lawsuit went nowhere as a trial judge said he was helpless to provide any immediate relief as the death warrant was expiring.
Mitchell also noted that state law directs prosecutors like those in her office to assist victims in enforcing their rights. And she disputes Mayes’ contention that only the Attorney General’s Office has authority in this area.
The next move in Gunches’ cases is up to the justices. But other, broader issues remain.
Duncan, in his most recent interim report obtained by Capitol Media Services, said he already has identified problems with conducting executions “particularly in the areas of the involvement of the appropriate personnel and training..
The judge said he saw nothing but “good faith and well-intentioned efforts” by those involved.
“But due in good part to the hobbling effect of the absence of transparency, these efforts fell short,” he wrote.
And then then there is what happens when putting inmates to death.
“Many of the problems which have plagued past executions were associated with the unavailability of preferred drugs used for lethal injections,” Duncan said. That goes to Hobbs’ direction to him to examine is how the state has been acquiring the drugs it has been using to put people to death.
Corrections officials have been less than transparent — and at least once in violation of federal regulations — in their practices.
In 2015, Arizona ordered 1,000 vials of sodium thiopental, a muscle relaxant used in the execution process, from a supplier in India. That came after a domestic manufacturer refused to sell it for executions.
That decision to order the drugs came despite warning from the federal Food and Drug Administration that buying the drug from India-based Harris Pharma would be illegal. That followed a 2012 decision by a federal judge, ruling in a lawsuit brought by inmates, requiring the federal agency to block importation of the drug as unapproved.
It ended up with Customs and Border Protection seizing the drugs at Sky Harbor International Airport. And in 2017 the FDA refused a request by Arizona to release them.
Capitol Media Services subsequently obtained a heavily redacted document showing the state spent $1.5 million in 2020 to buy 1,000 vials of pentobarbital sodium salt and had it shipped to the Department of Corrections in “unmarked jars and boxes.”
State officials have repeatedly declined to identify where they have attempted to purchase supplies of lethal chemicals. And the 9th Circuit Court of Appeals has ruled that Arizonans have no right to know where the state obtains its drugs to execute its inmates.
Hobbs said that Duncan is charged not only with finding out exactly how the state is getting the drugs it needs but also make that information publicly available.
Corrections officials have argued in the past that companies will not sell drugs to the state that have other useful purposes, like as an anesthetic or sedative, if their products are publicly linked to putting people to death. Hobbs said none of that is an excuse for hiding the information from taxpayers.
“If the state of Arizona is executing people in the name of Arizonans, Arizonans deserve transparency around that process,” she said.
In seeking a review, Hobbs acknowledged she is examining only a portion of the process, covering the time from when a person is sentenced to death to when the penalty is carried out.
Not part of the study is the larger question of whether the death penalty is imposed fairly. That includes differences in sentences depending on things like the race of the defendant and the financial ability to hire the best available counsel.
Of the 112 inmates who have been sentenced to death, 64 are classified as Caucasian, 22 Mexican Americans, 17 Black inmates, with four who are Native American, three Asians and two who are simply listed as “other.”
“That’s certainly a conversation worth having,” Hobbs said, saying it goes beyond the scope of the order she issued Friday. But the governor said at the time she is “certainly would be willing to entertain further action on the broader issue of the whole process.”
