Off with their heads

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

Duvall adds that the defense team had more than a year to prepare their mitigation case.


The Arizona Supreme Court issued its most recent opinion on the subject of mitigation in May 2001.

In that case, the high court ordered death row inmate Phillip Bocharski's resentencing because Yavapai County hadn't given Mary Durand enough money or time to do her job properly.

Bocharski had been convicted in the May 1995 stabbing death of an 84-year-old woman. The motive: Money.

Written by former Chief Justice Thomas Zlaket, the unanimous opinion said an average mitigation investigation in a California death case costs taxpayers about $150,000, and up to $100,000 in this state. But Yavapai County paid Durand just $15,000 for her services (which took months). That didn't include costs -- which she paid for herself.

During her investigation, Durand found and interviewed the pedophile truck driver to whom Bocharski had been sold as a boy. She says the man admitted to her that he'd used the boy for sex, and that he had sold him to other men for sex.

Durand wanted the judge to order the man to testify during Bocharski's pre-sentencing mitigation phase. But the judge never heard from the trucker, or from Bocharski's family members, in part because county officials denied funds for transportation and witness preparation.

"So long as the law permits capital sentencing," Zlaket wrote, "Arizona's justice system must provide the adequate resources to enable indigents to defend themselves in a reasonable way."

That tracked what the federal Ninth Circuit Court of Appeals -- whose jurisdiction includes Arizona -- has been saying for years. That court repeatedly has insisted defense attorneys must do whatever it takes to seek and present mitigation. And, the court has said, taxpayers must foot a "reasonable" bill for those efforts.

The death-penalty business picked up so quickly after Arizona passed the new Ringlaws that Maricopa County had to look elsewhere for mitigation specialists.

In October, Mary Durand asked Mark Kennedy to hire two California women to do mitigation in five death-penalty cases at the "out-of-town" rate of $75 per hour. One of the women, Pamela Siller, had been doing mitigation work for almost two decades, mostly in federal courts.

Siller and Marisela Gonzalez moved into a downtown Phoenix apartment, and went to work on five death-penalty cases between them. Within weeks, the walls of their sparsely appointed residence/office were draped with the family trees of her death-eligible clients. Piles of court documents, school records, mental-health reports and other data sat on folding tables in the living room.

But things soon soured for the pair.

By late last year, Siller was enmeshed in legal controversy involving one of her clients, multiple murderer and Phoenix gangster, 24-year-old Ruben "Baby Loc" Johnson.

Though it's hard to see how any jury would choose to spare Johnson's life, his defense team did develop some selling points for mitigation even before his conviction in November 2001: His father routinely beat him savagely as a child, he abused drugs from an early age, and he's been diagnosed with a mental illness.

Pam Siller took over as Johnson's mitigation specialist last October, knowing that Judge James Padish had scheduled the jury-sentencing trial to start January 9.

But Johnson's attorney, Bob Storrs, asked Padish to postpone the hearing because Siller wasn't close to being ready.

Pam Siller told the judge she wouldn't be ready to present mitigation until January 2004.

But Padish wouldn't budge. That led to Siller and Mary Durand's immediate resignation from the case.

OCAC's Kennedy told the judge during that hearing, "I don't want you to think for two seconds that I'm condoning that these people go on strike. We're paying them a lot of money to get this work done for you as quickly as we can."

Actually, county records indicated Siller had submitted bills in the Johnson case for just $9,000. Durand, who makes $30 an hour -- never asked for any extra money for helping Siller.

On January 9, when jury selection was about to begin, Bob Storrs again asked for a postponement of Johnson's sentencing trial.

"We're ready to go," countered prosecutor Bob Shutts. "Tell us why we shouldn't go . . ..This isn't rocket science."

The judge agreed.

Storrs -- who was to earn $30,000 for doing the case (about the norm in post-Ringcapital sentencing cases for lead attorneys) -- then told Padish that he, too, was resigning.

The judge wouldn't let him.

That day, Storrs asked the Arizona Court of Appeals to consider the mitigation issue on an emergency basis. The court said it would, which put the jury trial on hold.

On February 27, Judge Philip Hall wrote a unanimous opinion in favor of Ruben Johnson, and ordered Padish to give defense attorneys "adequate time to prepare minimally competent mitigation."

Pam Siller then rejoined the mitigation team. But Padish fired her for keeps at an April 11 hearing, saying the case preparation still wasn't moving fast enough.

Mark Kennedy appointed newly hired mitigation specialist Dave Wilcox to take over the Johnson case.

Bob Storrs urged Padish to reconsider the appointment, writing in a motion, that "[Wilcox] is not qualified to perform the mitigation function in this case."

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