Harvard Death-Penalty Study Rips Maricopa County Prosecutors

Maricopa County's death-penalty system is plagued by "overzealous" prosecutors and creates a high number of questionable death-penalty cases, according to a new Harvard Law School report.

"Too Broken to Fix: Part I: An In-Depth Look at America’s Outlier Death Penalty Counties," by the school's Fair Punishment Project, identifies Maricopa as one of 16 "outliers" among the nation's 3,143 counties or "county equivalents," for having sentenced five or more defendants to death during the period 2010-2015.

The report calls out three deputy county attorneys by name, suggesting they're reckless, and it lays heavy implications on the current county attorney, Bill Montgomery. But it also notes that the number of death-penalty cases has declined since the departure of former county attorney Andrew Thomas.

Thomas, who resigned office in 2010 for an unsuccessful run for state Attorney General, was disbarred in 2012 for abuse of power — as the Harvard study prominently mentions. Voters put Montgomery, also a Republican, in office in 2010 with a special election, re-electing him in 2012. He's running for office once again in 2016 against low-profile Democratic contender Diego Rodriguez.

For much of Montgomery's time in office, he has sought the death penalty at a higher-than-average rate, according to the study. Between 2010 and 2015, the county had 28 capital-punishment cases. On a per-homicide basis, the county's rate of death sentencing is 2.3 times higher than the rest of Arizona. Nationally, it accounts for about about 1 percent of the country's population but 3.6 percent of the country's death-penalty cases between 2010 and 2015.

"If I were charged with a crime in Maricopa County, based on what we've seen in capital cases — it's not a place where I would feel confident that the county attorney's office would play by the rules," Robert Smith, a Harvard researcher and director of the Fair Punishment Project tells New Times.

The report illuminates problems that go back much further than 2010, showing that Maricopa County has had more cases — and more problems with those cases and its prosecutorial system — than nearly any other U.S. county.

Founded in 2005 by Harvard Law School professor Charles J. Ogletree Jr., the Fair Punishment Project has a stated mission to serve as a "critical critical bridge between scholarship, law, policy, and practice to solve the challenges of a multi-racial society." The project, led by professor Ronald Sullivan Jr., is a collaboration between the law school's Charles Hamilton Houston Institute for Race and Justice and its Criminal Justice Institute.

Citing media coverage, including stories from New Times, the report notes that starting in 2004, Thomas sought capital cases at twice the rate of his predecessor, Rick Romley — thus crippling the county's public-defender system and leaving a dozen murder defendants without lawyers. While the county has backed off its zeal for the death penalty since 2010, Montgomery's office retains three deputies whose strong interest in capital cases appears to color their conduct in court.

Jeannette Gallagher, Juan Martinez, and Vincent Imbordino account for more than one-third of all of the
capital cases (21 of 61) in which the Arizona Supreme Court has found problems on direct appeal since 2006. The higher court overturned or vacated the death penalty in four of the 21 cases and found instances of "improper behavior" in eight of the cases.

The report notes that the state Supreme Court found that Martinez — who gained worldwide fame as the prosecutor in the Jodi Arias murder trial — committed misconduct in at least three capital cases. Additionally, the state's high court cited 17 examples where Martinez had acted "inappropriately" in the murder prosecution of Shawn Patrick Lynch. (The U.S. Supreme Court overturned the death penalty in that case for reasons unrelated to alleged prosecutor problems.)

"They don't have the temperament required to prosecute a jaywalking citation, and what they're being entrusted with is the death penalty." — Harvard University researcher Robert Smith

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The report cites instances in which the state Supreme Court deemed Gallagher's conduct "improper," "very troubling," and "entirely unprofessional."

"Gallagher, who heads Maricopa’s capital case unit, has personally obtained at least nine death sentences, including against a military veteran diagnosed with paranoid schizophrenia and a brain-damaged child whom she described to the jury as '16 going on 35,'" according to the report.

Smith has harsh words for the three prosecutors.

"They don't have the temperament required to prosecute a jaywalking citation, and what they're being entrusted with is the death penalty," he tells New Times. "They shouldn't be prosecuting misdemeanor cases, much less deciding whether or not somebody lives or dies."

The report delves into the problems behind the high rate of cases, noting overworked or incompetent defense attorneys, racial bias, and the exonerations of five Maricopa County death-penalty defendants since 1978. More than half of the people sentenced to death between 2010 and 2015 were people of color. The Fair Punishment Project can't say for certain whether Maricopa County has executed any innocent people, but Smith says it has come "perilously close."

It's Montgomery's responsibility to fix the county's sorry record on the death penalty, Smith adds, even though many of its problems predate his tenure. As things stand now, Montgomery shows a "callous disregard" for the people he's been entrusted to protect, Smith says.

Montgomery did not return a message seeking comment.
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Ray Stern has worked as a newspaper reporter in Arizona for more than two decades. He's won numerous awards for his reporting, including the Arizona Press Club's Don Bolles Award for Investigative Journalism.