Maricopa prosecutor, AG spar over power to seek execution warrant

PHOENIX — Attorney General Kris Mayes insists that she is “the state.’’

But Maricopa County Attorney Rachel Mitchell says she also can be “the state.’’ So too, she said, can every other prosecuting agency.

Now the Arizona Supreme Court has to decide who is legally right, with the fate of at least one inmate on Death Row hanging in the balance.

The conflicting claims come in new legal briefs filed with the high court, which must decide who has the statutory authority to seek a warrant of execution.

If the justices side with Mitchell, she has said she will move promptly to get the Department of Corrections, Rehabilitation and Reentry to execute convicted murderer Aaron Gunches. She said he should have been put to death by now except for the fact that an earlier warrant sought by Republican Mark Brnovich, Mayes’ predecessor, expired before the execution was carried out.

Mayes, a Democrat, has yet to seek a new warrant, waiting, at least in part, until a special commissioner named by Democratic Gov. Katie Hobbs to study the death penalty completes his report. That may not be done before the end of the year by retired Judge David Duncan.

Mitchell, a Republican, contends Arizona law says the Supreme Court must issue a warrant of execution if “the state’’ files a notice saying there are no more post-conviction or habeas corpus proceedings.

“ ‘The state’ unequivocally includes all prosecuting agencies and prosecutors,’’ she wrote to the court. “What the definition does not say is that ‘the state’ means the Arizona Attorney General and only the Arizona Attorney General.’’

Bottom line, Mitchell said, is she has as much authority to seek a warrant of execution as Mayes.

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. That was joined the following month by then-Attorney General Brnovich.

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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 declined to seek a new one.

Mitchell asked the Supreme Court in May to issue a new warrant. Mayes telling the justices to ignore her request.

“The attorney general unquestionably maintains the exclusive authority to request a warrant of execution from this court,’’ she told the justices.

“The Legislature has specifically designated the attorney general the ‘chief legal officer of the state,’’ Mayes continued. And that includes the “sole responsibility to prosecute and defend in the Supreme Court all proceedings in which this state or an officer of this state is a party.’’

At least some of that, she said, is based on the fact that her office represents the Department of Corrections, Rehabilitation and Reentry, which is the agency that would carry out any execution.

“Requesting a warrant of execution involves an inherent avowal that the state is prepared to ‘carry out the sentence in compliance with state and federal law,’ ‘’ Mayes said. “As ADCRR’s legal counsel, the attorney general is in a unique position to provide this avowal.’’

That involves access to information, including the agency’s execution protocols and lethal injection drugs, she said, including identifying execution team members, providing training sessions and conducting equipment testing. That also involves confirming that the agency possesses the materials to compound injectable pentobarbital and has retained a compounding pharmacist who can do that within the allocated timeframe.

All that is confidential, Mayes said — meaning the department cannot discuss its ability to comply with these procedures with a county attorney.

Mitchell, for her part, points the court’s attention to the Victims’ Bill of Rights, a set of constitutional and statutory provisions. Key to that, she said, is ensuring “a prompt and final conclusion of the case after the conviction and sentence.’’

In this case, Mitchell said, the victims — Karen Price who was Ted Price’s sister, and Brittney Kay, his daughter — have asserted their rights and have asked her to help enforce them, something state law legally requires her to do. That gives her “not only the authority but the duty to do so,” she said.

Whatever the justices rule in this case is likely to have implications beyond Gunches. There are 109 men and three women on death row.