Off with their heads

Arizona's Juries are proving tougher than judges under a new murder sentencing system

"The system is completely screwed up right now," says Larry Hammond, who was part of the legal team in Ring. "Many of our judges are acting irresponsibly. They know this is a new day, and that the work of [defense] mitigation has to be funded and staffed properly. Instead, these judges are finding willing henchmen to do their bidding. That includes lawyers who keep saying they can do the job, even though they already have too many cases."

The American Bar Association has said attorneys should represent a maximum of three capital defendants at a time. Some states are even stricter: The state of Washington, for one, allows lawyers representing indigents to handle only one capital case at time.

Mark Kennedy is one of those "willing henchmen" Hammond is talking about. As the head of the county's Office of Court-Appointed Counsel (OCAC), Kennedy appoints private attorneys hired to represent indigent capital clients in cases that one of the county's three public-defender agencies can't handle. He then oversees payments to those attorneys.

Assistant federal public defender Dale Baich: "Defense lawyers in this town are way behind the 8-ball."
Jackie Mercandetti
Assistant federal public defender Dale Baich: "Defense lawyers in this town are way behind the 8-ball."
Mitigation specialist Mary Durand at her Phoenix home/office.
Emily Piraino
Mitigation specialist Mary Durand at her Phoenix home/office.

Kennedy says he'll keep appointing qualified barristers to do death-penalty defense cases "as long as they tell me they can do the job."

But Storrs has six capital indigent cases on his plate, not including Tony Aguilar. Other Valley attorneys have just as many death-penalty clients. Several of them earn a good part of their livings doing death-penalty work. Taxpayers paid Bob Storrs $55,000 and Blumberg $45,000 for defending Aguilar.

"I recognize the problems, but there's not a lot I can do from where I sit," says Kennedy, a former FBI agent who has worked both as a prosecutor and a criminal-defense attorney. "Ring hit like a ton of bricks, and we've been trying to cobble things together the best we know how."

Another pressing post-Ring problem involves "mitigation specialists," whose job is to uncover facts about a defendant's life that might lead jurors to vote for life instead of death.

The specialists have become increasingly vital in Arizona's jury-sentencing scheme because a murderer's sentencing hearing now starts just a few days after a guilty verdict. It used to be several months or even more than a year later before a judge sentenced someone in a death case.

That means the specialists must have their work done before a trial even begins. To have a shot at winning a life sentence, attorneys now have to foreshadow during trial what they're going to emphasize during sentencing, if it gets that far.

But "frontloading" mitigation is still a foreign concept for most of the local defense bar.

"Defense lawyers in this town are still way behind the 8-ball on mitigation in this new world," says Dale Baich, a federal public defender in Phoenix.

That's for sure, says the only mitigation specialist cited by the Arizona Supreme Court as an expert. Phoenix's Mary Durand also says county judges aren't giving her and her colleagues the time they need to do their jobs properly.

"No one cares about this, because most of our clients are guilty -- 95 percent of them anyway," Durand says. "But the state should have to jump through a lot of hoops before they get to kill one of its citizens. Our mitigation should be one of those big hoops. So far, we haven't been close."


Some call mitigation the "blame game," the "abuse excuse."

The successive death sentences imposed post-Ring suggest that Maricopa County jurors aren't eager to embrace the idea that "root causes" -- an abusive family background, mental illness, whatever -- are enough to spare someone's life.

And if convicted killers aren't ready to own up to their wrongdoing and actually accept the punishment they're about to receive, they have even less of a chance.

Take, for example, the recently completed case of former minor-league baseball player Fabio Gomez.

Gomez -- who represented himself, badly, for much of his sentencing trial -- wanted jurors to believe he didn't commit the December 1999 rape and murder of his next-door neighbor in Chandler. Evidence of his guilt was overpowering, as he'd bludgeoned the victim repeatedly in his own apartment with a dumbbell, leaving her blood and DNA everywhere.

Beyond that, the 34-year-old Dominican Republic native continually tried to show that he had a supportive family and he loved his young son, so he didn't deserve to be sentenced to death.

Gomez asked Daniel Raynak -- who had sat beside him with another attorney during the proceedings as taxpayer-funded "advisory counsel" -- to do the closing arguments at his sentencing.

"The other days of Mr. Gomez's life [not the day he committed rape and murder], that is what we call mitigation," Raynak told the jury. " . . . There are no good murders -- so the issue becomes how especially cruel, how especially depraved, do you rate this?"

Raynak said Gomez didn't want him to plead for his life, and he wasn't going to: "If I have to beg for someone, it doesn't seem right."

Jurors returned a death sentence on June 5.

"It was pretty evident after awhile that we were leaning strongly toward death," said a Mesa juror who asked that her name not be used. "Bottom line, the law is the law."

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