Off with their heads
Bob Storrs looked spent last week as he left a Maricopa County courtroom after trying to save a young killer's life.
Storrs has been a criminal-defense attorney for nearly 35 years, and has tried many murder trials. But his defense of Tony Aguilar differed from the others in one major regard.
This was the first time Storrs ever had asked a jury, not a judge, to spare a client's life. That's because the Arizona Legislature upended the state's death-penalty laws last year, and turned over sentencing in capital cases to juries.
The 23-year-old Aguilar was the sixth county defendant to face a death sentence since the new laws went into effect last August, and his odds weren't good: Each of the previous five juries had returned death verdicts.
In fact, since the controversial system has been in place, only one defendant out of 10 cases tried statewide has received a life sentence.
Aguilar's guilt never was in doubt. The same jury that considered his sentence -- it was going to be life behind bars or death -- already had convicted him of first-degree murder and other felonies in the senseless September 1996 shooting death of 16-year-old Jonathan Bria.
Aguilar, who also was 16 at the time of the west Phoenix shooting, fired numerous shots into a vehicle during a traffic clash. One of the bullets hit Bria and killed him. Aguilar fled into the night.
Two weeks later, he slaughtered a west Phoenix couple in their home after a car transaction soured. (In a legal quirk, those murders were adjudicated first.)
Aguilar already was serving a life sentence without the possibility of parole on those murders when he went on trial in the road-rage case (which was finally solved because of the dogged work of Phoenix police detective Joe Petrosino.)
Storrs and his co-counsel, Bruce Blumberg, hoped they had presented enough evidence to convince jurors to give Aguilar another life sentence without the chance of parole.
That mitigating evidence included Aguilar's young age when he'd killed Bria, though prosecutor Jeannette Gallagher tried to deflect that by telling jurors, "He was 16 going on 35."
Testimony suggested Aguilar suffered from a degree of brain damage, and that educational and juvenile correctional facilities as well as his family had failed to find him help when he desperately needed it as an early teen.
But prosecutors countered with witnesses who called Aguilar a remorseless sociopath. Phoenix psychologist Brad Bayless reported Aguilar had told him during a jailhouse interview, "I don't kill innocent people,'" a comment that demonstrated a chilling lack of insight.
Aguilar attended his month-long sentencing trial sporadically. When he did show up, he gave the smirking impression that the proceedings were little more than a mildly interesting diversion for him.
The young man's nickname, "Dopey," seemed to suit him.
Shortly before the jury decided Aguilar's fate last Thursday, Storrs wondered if he'd done right by Aguilar.
"We're learning how to do this [jury sentencing] as we go along," he said. "It isn't even in the same ballpark as judge sentencing. I'm just not sure of anything right now. It's a real crapshoot. They created this monster, unnecessarily."
The "monster" has caused more upheaval at the county courthouse than anything in recent memory.
It has shattered long-held alliances, caused irreparable rifts between people who are supposed to be on the same team, and cost taxpayers a ton of money.
The upheaval is the result of a landmark U.S. Supreme Court decision in the case of a November 1994 robbery-murder of a Wells Fargo armored van driver in Glendale.
In June 2002, ruling in Ring vs. Arizona, the high court said juries must consider factors that may make a defendant eligible for execution.
Defense attorneys at first saw Ring as a giant win for Arizona's death-row inmates, including Tim Ring himself, the ex-cop turned killer. A release from the National Association of Criminal Defense Lawyers said the ruling "has given us a bell to ring. Let's ring it in the morning, ring it in the evening, and settle our cases for life all over the nation."
It wasn't as if the nation's "worst" murderers were to be freed from their maximum-security cells. But defense lawyers tried to convince themselves that prosecutors would now be more apt to offer life sentences to death-row inmates who would win re-sentencing because of Ring, and also to newly charged defendants.
Though the high court didn't actually require juries do the sentencing in death cases, prosecutors prodded then-Governor Jane Hull to call a special legislative session to pass a law that did make juries -- not judges -- responsible for sentencing. (See accompanying story)
That led to what one defense attorney calls "the new world order," or life after Ring.
Prosecutors seem to be the only ones in Arizona's criminal-justice system who have embraced this new world.
"Defense lawyers may have won the battle in Ring, but they're losing the war," says Maricopa County Attorney Rick Romley, almost gleefully. "You have to be careful about what you wish for sometimes."
One prominent Phoenix attorney says the reason for the state's clean sweep in capital cases since Ring has been unfair judges and unprepared defense attorneys.
"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.
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."
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.)
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."
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 Ring laws 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-Ring capital 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."
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.
"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.
The foreperson, juror number 14, wept quietly as jailers led Aguilar away (oddly, right in front of the jurors, a few of whom cringed at having to be so close to him.)
None of the jurors would discuss the case with New Times afterward. However, they did meet separately with the prosecution team, representatives from the defense (Storrs and Blumberg left the courtroom immediately after the verdict), and the victim's mother, Mary Blair -- a sweet woman from Louisiana who had sat through every minute of the proceedings.
The consensus: The jury believed Aguilar was just as prosecutors had depicted him -- a menace to society for whom the death penalty was appropriate.
No one can say if a better mitigation presentation would have won the day for Aguilar.
The prosecutors say that jurors spoke highly of Bob Storrs' impassioned closing argument during their post-verdict conversations with them.
But Storrs himself may have put it best a few hours before the verdict came in: "I feel like I'm playing a whole new game with jury-sentencing. I just can't help but think, was I doing it right or wrong in there?"
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