Off with their heads

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

Chris Johns, an attorney who does death-penalty appeals at the Maricopa Public Defender, says Raynak's half-hearted attempt at mitigation is typical.

"Most of our defense attorneys just don't see yet how important mitigation is to their chance of winning life sentences," Johns says. "Mitigation truly takes a team effort, which is antithetical to how criminal-defense attorneys usually think. They think of themselves as lone wolves who show up for trials."

(Raynak went on vacation immediately after the Gomez trial, and was unavailable for comment.)

John Foreman  is one of several Superior Court judges who came under fire from mitigation specialists.
John Foreman is one of several Superior Court judges who came under fire from mitigation specialists.
Specialist Pam Siller (left), with her colleague Marisela Gonzalez.
Paul Rubin
Specialist Pam Siller (left), with her colleague Marisela Gonzalez.

Mary Durand -- whose official title is mitigation coordinator for the OCAC -- told her boss in an April e-mail that many local defense lawyers pretty much ignore her and her team until the last minute.

"They [criminal-defense attorneys] don't return our calls, they don't respond to needs, they don't meet with us to assist us in our work," Durand complained to Mark Kennedy.

"Hell, Mark, some of them don't even spend time with their clients. This is not the way death penalty cases are supposed to be done. If you could go to court and hear the weak comments from the attorneys -- `Well, your Honor, I don't know.' Of course they don't know. They don't ask. They don't know and they don't care . . .. If these cases come back, and many will, the cost to all involved, victims first off, [will be] enormous."

Durand's star has fallen dramatically in recent months as she's increasingly confronted the powers-that-be in courtroom and behind-the-scene tussles over post-Ring strategies and deadlines.

She says she wasn't asked to approve the hiring of or train any of the four mitigation specialists hired in recent weeks, none of who have prior experience in how to advocate for a killer's life.

Many local defense attorneys now say they preferred the sentencing system before Ring.

"With judges, at least, you'd know their track record -- whether or not they were likely to sentence some people to death," says Bob Storrs.

Statistics from the Attorney General's Capital Case Commission indicate Arizona judges were far less likely to impose death sentences than juries have been so far. From 1995 to 2000, the state's judges sentenced defendants to death just 20 percent of the time that prosecutors asked them to.

"I expected there would be more death sentences from juries," says Judge Ron Reinstein, who has sentenced six men to death row. "I also think there will be many more successful appeals than before. For one thing, a judge has to justify reasons for doing things in writing, and it's all on the record. The jury doesn't have to put anything down."

But attorney Larry Hammond insists effective death-penalty mitigation can work.

"It really troubles me to hear defense attorneys saying we were better off before Ring," he says. "People just aren't doing these cases properly, or they would be getting different results."

Hammond notes that 13 of the last 14 federal juries in capital cases have given life sentences, the opposite from Arizona. (Interestingly, the one federal death sentence happened last month in Phoenix, when a jury ordered a defendant's execution in the grisly 2001 Navajo Reservation murders of a woman and her 9-year-old granddaughter.)

"If federal public defenders are figuring it out, there's no reason we can't figure it out here," Hammond says. "That there's only been one life sentence in Arizona so far is disgraceful."

The defendant in that case was 21-year-old Frankie Lee Rodriguez, convicted in Tucson of killing two people with an accomplice in separate carjackings in November 2000. The co-conspirator also is serving a life sentence without possibility of parole.

"The defense team put together a detailed mitigation package for each juror to study during sentencing," says Pima County Judge Frank Dawley, "and they started to make their pitch for a life sentence almost from the start."

The package, Dawley says, included pictures from Rodriguez's childhood, reports from schools, mental-health experts and other information.

"The mitigation specialist and the attorneys suggested that the defendant's turn to violent crime was almost inevitable," Dawley says. "But I think it was important that no one was excusing the guy for what had happened, not at all. And the defendant himself told the jurors how he had no excuses to make, and how sorry he was."

The judge says it helped Rodriguez that jurors remained unsure which of the killers actually had committed the murders. Neither of the pair (prosecutors agreed to a life sentence for the other defendant after the Rodriguez verdict) will ever be released from prison.

One of Rodriguez's court-appointed attorneys says she's "still kind of pinching myself" over the verdict.

"There were some very bad facts against our guy," Julie Duvall says, "and I honestly don't know what the magic potion was, or whether we were just lucky. I know that the jury selection was very important -- the judge gave us a half-hour with every potential juror. That was huge.

Duvall says she also examined an ex-prison warden who is an expert in evaluating the future dangerousness of violent criminals. "He was a real law-and-order guy, nothing touchy-feely, and he said Frankie wasn't a big risk to reoffend in prison. Also, Frankie did well when he told the jury about how he made the biggest mistake of his life, and didn't have any excuses."

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