3 ex-prosecutors side with Mayes that only she can seek execution warrants

PHOENIX — Attorney General Kris Mayes has picked up some allies in her claim that Maricopa County Attorney Rachel Mitchell can’t seek the execution of killer Aaron Gunches.

In a new legal filing, Democratic former Attorney General Terry Goddard joined with two former county attorneys, Republican Rick Romley of Maricopa County and Democrat Barbara LaWall of Pima County, to urge the Arizona Supreme Court to reject Mitchell’s attempt to seek an execution warrant.

They said the history of the death penalty in the state and associated legislation make clear the Attorney General’s Office is in charge of such actions.

Goddard, Romney and LaWall believe Mitchell’s position is “bad public policy and unworkable,” said the attorney who filed the legal brief, Andrew Stone.

Gunches pleaded guilty to first-degree murder and kidnapping in the 2002 death of Ted Price, his girlfriend’s ex-husband.

A warrant for execution was issued in 2022 at the request of Republican then-Attorney General Mark Brnovich. But it expired without an execution being carried out.

Mayes, a Democrat elected in 2023, declined for now to seek a new one. She said she is waiting on a report by a special Death Penalty Commission named by Gov. Katie Hobbs.

“Recent executions have been embroiled in controversy,’’ Hobbs said in naming the commission after her 2023 election. There were reports that prison employees had repeated problems in placing the intravenous line into the veins of condemned men.

“The death penalty is a controversial issue to begin with,’’ the Democratic 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.’’

That report is not expected to be ready before the end of the year.

But Mitchell insists she has concurrent authority to ask the high court, in the name of “the state,’’ to set a date for Gunches’ execution, which prompted the brief by Goddard, Romley and LaWall.

Setting such a precedent is a bad idea, the three former elected officials are telling the justices.

“The Maricopa County Attorney believes that just because her office represents the state in some proceedings, it therefore has the authority to represent the state in any proceeding it chooses,’’ their legal brief argues.

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State laws spell out that the attorney general is the “chief legal officer’’ who shall “prosecute and defend in the supreme court all proceedings in which this state is a party,” they said.

By contrast, they say, the state’s 15 county attorneys can represent the state and “conduct all prosecutions for public offenses, but only within their respective counties.’’ The trio contends this has never been understood to extend to seeking execution warrants.

There’s a more practical issue. Consider, they said, what would happen if any prosecutor argued they have authority to speak for “the state’’ in any prosecution.

“This would require courts to resolve internal disputes among the various prosecutors’ offices who claimed to be representing ‘the state’ before ever turning their attention to the actual issues of the state,’’ their brief said.

Also, they noted, seeking a warrant of execution is more complex than simply filing a piece of paper with the Supreme Court.

“There are dozens of motions that are filed after this court grants the state’s request to set a briefing schedule for a warrant of execution,’’ they said. They pointed out that the Attorney General’s Office has been specially funded by the Legislature to handle post-conviction proceedings.

Mitchell declined to be interviewed about the filing.

She filed her own legal brief saying all the three former prosecutors do is repeat Mayes’ “unsupported and unsupportable legal conclusions’’ about her authority.

The independent death penalty review causing the delay is irrelevant to the Gunches case, as there is no dispute that the legal requirements have been met to issue an execution warrant — just as they were when Brnovich obtained the first warrant.

Mitchell also says the bid to block her from proceeding ignores the constitutional and statutory rights of victims. These include ensuring “a prompt and final conclusion of the case after the conviction and sentence.’’

Karen Price, who was Ted’s sister, and his daughter Brittney Kay have asserted those rights and asked for her help in enforcing them, Mitchell said, adding that state law requires her to do so.

Finally, Mitchell said while the attorney general may have some “supervisory authority’’ over county attorneys, that does not extend to her “legally supported attempt to exercise absolute control.’’