Prosecutors spar over when Arizona will resume executions

PHOENIX — Two key prosecutors, Kris Mayes and Rachel Mitchell, are sparring over who gets to decide when Arizona executes death row inmate Aaron Gunches.

The Arizona Supreme Court will have to decide which of them represents “the state of Arizona.’’

Mayes, the attorney general, filed legal papers this week asking the justices to ignore the request by Maricopa County Attorney Mitchell to schedule a hearing to get a warrant of execution for the convicted killer. Mayes is saying that while Mitchell’s office prosecuted Gunches, its purview ended when he was sent to death row.

“Thus, the authority to request a warrant of execution … rests exclusively with the attorney general,’’ Mayes told the court.

More than Gunches’ future 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 Democratic attorney general said she is waiting for the findings of the Death Penalty Independent Review commissioner named at the same time by Democratic Gov. Katie Hobbs.

That report, however, may not be done until the end of this year. Depending on the findings, it could lead to the conclusion there is no acceptable way to put inmates to death.

The 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, to the procedures and protocols used by the Department of Corrections, Rehabilitation and Reentry to put condemned inmates to death, including the training of prison officials involved.

‘Embroiled in controversy’

Arizona resumed executions in 2022 after an eight-year pause following a 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, who took office in 2023, said the process has remained plagued by questions.

“Recent executions have been embroiled in controversy,’’ she said in appointing retired Judge David Duncan. There were reports that prison employees had repeated problems in placing intravenous lines into the veins of the condemned men.

“The death penalty is a controversial issue to begin with,’’ the governor said. “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 inmates on death row, who now number 100 men and three women.

“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.

Hobbs has repeatedly refused to divulge her own beliefs on the death penalty, saying they are not relevant.

In fact, the governor has no role 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. Unlike in 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.

Convoluted history

All that leads to the current dust-up.

Gunches 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. The request was joined the following month by Republican then-Attorney General Mark Brnovich.

But Gunches withdrew that request in January 2023 and Mayes sought to withdraw the warrant.

The high court refused. But the warrant — which has a fixed time limit — expired before the execution was carried out. Mayes has refused to seek a new one.

Mitchell, a Republican, asked the Supreme Court last month to issue a new warrant. Mayes is now telling the justices to ignore her request.

Mayes said 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.

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“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. 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.’’

Victims’ Bill of Rights

Mitchell, for her part, said there are other things to consider, including the Victims’ Bill of Rights that is part of the Arizona Constitution.

One of the provisions says victims are entitled “to a speedy trial or disposition and final conclusion of the case after the conviction and sentence.’’

And Karen Price, victim Ted Price’s sister, as well as Brittany 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. She disputes Mayes’ contention that only the Attorney General’s Office has authority in this area.

The next move in Gunches’ case is up to the justices. But other, broader issues remain.

Duncan, the Death Penalty Independent Review commissioner, 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.”

He 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 how the state has been acquiring the drugs it used to put people to death.

“No right to know” source of drugs

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.

The 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. 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 Duncan is charged not only with finding out exactly how the state is getting the drugs it needs but also making 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, as an anesthetic or sedative, for example, 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 were classified as Caucasians, 22 Mexican Americans, 17 Blacks, four Native Americans, three Asians and two simply listed as “other.’’

“That’s certainly a conversation worth having,’’ Hobbs said, saying it goes beyond the scope of the order she issued. She said at the time she “certainly would be willing to entertain further action on the broader issue of the whole process.’’