Off with their heads

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

Padish rejected that argument, and Storrs says he was compelled to put Wilcox onto his taxpayer-funded defense team, at $30 an hour (soon to be $40 an hour).

"I know that mitigation takes time and the right people, but I have to get ready," Storrs explains, sheepishly. "We're learning as we go. But I just hate to practice on some guy's life."

Ruben Johnson's sentencing trial now is set to start September 16.

Brian Stauffer
Death-row innmates (from left to right) Richard Glassel,  Tim Ring and Phil Bocharski.
Death-row innmates (from left to right) Richard Glassel, Tim Ring and Phil Bocharski.

"That go-along-to-get-along attitude," complains Mary Durand, "is appalling."

"In this county," she says, "we've found ourselves under the control of flannel-mouthed shit merchants who don't know the law, don't care about giving defendants a fair shot at saving their lives. These cases are going to come back here on appeal, and at great expense -- to victims' families, taxpayers, everyone -- because we're not doing it right on the front end."

Specifically, Durand directs her venom toward defense attorneys such as Dan Raynak ("He doesn't believe in mitigation"), her employer, Mark Kennedy; and judges Ron Reinstein and James Padish, with whom she's been sparring in and out of court.

"They are just the ones that pop into my mind right now," she says. "It's all about expediency, speed, `let's just get this formality over with' attitude."

Replies Kennedy, "People are taking aim at me for things that aren't of my making -- such as the shortage of mitigation specialists, of experienced first-chair [lead] capital defense attorneys, and the fact that our judges are in such a hurry to get these cases done."

It's also very expensive for taxpayers. Kennedy says his office will have wound up spending almost twice its budgeted amount of $5 million when this fiscal year ends in a few days. He blames much of that overspending on Ring.

Reinstein -- one of the county's most respected jurists -- bristles at Durand's suggestion that he's biased against capital defendants.

"It's a balancing act between the rights of the defendant and the rights of the victim and his or her family," the judge says. "There has been extreme frustration on the victims' side toward the defendants, prosecution and judges about the length of time things take. That said, I don't think that any judge is going to deprive a defendant from putting on mitigation in a reasonable time frame."

Padish and Reinstein haven't been the only judges quarreling with mitigation specialists in recent months.

Judge John Foreman told Durand and Siller during a February 21 hearing in a death-penalty case that he would be moving it along far more rapidly than they wished.

"This is a very difficult thing to balance," he said during the hearing. "But in the real world, that [mitigation] process cannot go on forever, and cannot involve all possible avenues."

The judge then told the defense team that his own job performance is evaluated by how fast he moves capital cases along.

In an interview later, he said he's just trying to follow a new Arizona Supreme Court rule that says capital cases should be done within 18 months after someone is charged -- or about half as long as cases used to take.

"I personally don't think faster is necessarily better, especially in capital cases, but that's the way things are," says Foreman, one of the few judges on the county bench who once worked as a criminal-defense lawyer.

Pam Siller quit the rest of her cases earlier this month. Her associate, Gonzalez, already returned to California in frustration months earlier.

On June 6, Siller sent her four-page resignation letter to six Superior Court judges. In it, she berated Mark Kennedy, the defense attorneys for whom she'd been working, and the county judiciary.

"I cannot continue to work under the direction of attorneys who do not understand the law as it relates to mitigation," Siller wrote. "I cannot work in conjunction with a funding agency (OCAC) that does not provide the resources necessary for a competent and thorough investigation.

" . . . I am also disappointed that [OCAC], defense counsel and the courts are not following the standard of care developed over the decades in investigating, preparing and presenting mitigating evidence in capital cases."

Mark Kennedy says the letter outraged him.

"I denied Pam Siller nothing," he says. "I give these mitigation people what they want. What do they want?"

Adds Ron Reinstein, who last month asked Siller and Mary Durand to account for some of their billings during a nine-day trip in April to Amsterdam to interview a client's mother: "It sure doesn't reflect well on Ms. Siller to bail out after getting paid a bunch of money, then throwing out a bunch of unsubstantiated allegations about everyone who questions her about anything."

Last Thursday afternoon, June 19, the jurors in Tony Aguilar's case sat in Judge Brian Hauser's courtroom for the final time. They had been deliberating for more than two days. Now it was time to render their verdict.

Sitting in handcuffs and shackles between his two attorneys, Aguilar looked straight ahead, the little sneer still on his face. His mother, Gloria, trembled in the spectator's gallery as the clerk read the verdict to a packed courtroom.


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