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5:25 AM Thu, Jan. 24th

AG motion stops new sentencing in Congress capital case

Phillip Bocharski, the Congress man convicted of the murder of an elderly woman, will stay on death row, pending the results of a motion for the Arizona Supreme Court to reconsider its order to re-sentence him.

A Yavapai Superior Court jury convicted Bocharski of stabbing an elderly woman in the head at least 16 times and of stealing $500 from her in September 1996. He was then sentenced to death row.

In a May 2001 opinion, Arizona Supreme Court Chief Justice Thomas Zlaket wrote that "lack of adequate funding for mitigation required resentencing," meaning that Bocharski's defense attorneys did not have enough money to properly present his sentencing arguments.

Kent Cattani, chief capital counsel for the Arizona Attorney General's Office, filed a motion requesting the Supreme Court to reconsider its published opinion.

"I just asked the Supreme Court to reconsider the opinion because I didn't think the decision accurately reflected the facts about (mitigation) investigation," Cattani said.

Cattani said the investigation for mitigating evidence – evidence in Bocharski's favor – was extensive. In his motion for reconsideration, Cattani said "this case involved a substantial mitigation investigation and Bocharski expressly waived further investigation."

In the motion, Cattani contends that the court approved the spending of $31,000 for the collection of mitigating evidence and would approve between $2,150 and $3,000 to pay mitigation specialist Mary Durand to continue working on the case.

Durand testified that the average cost of mitigation in a death penalty case "is about $20,000 to $100,000." This money is used to interview potential character witnesses, bring people to Arizona to testify and collect other information about the defendant's background.

Bocharski's trial lawyers, Thomas Kelly and Ray Hanna, said they received a total of $5,000 and that the time between when they requested money and when they received it was often weeks. They also said Bocharski became frustrated with waiting for the money and he gave up.

Cattani said the trial lawyers did have enough money to provide an adequate defense for Bocharski and that Bocharski's decision to end the mitigation investigation was voluntary.

"The problem was with the funds and the amount of time it took to receive the funds," Cattani said. "But the work was in fact done and the investigation was actually done. The sentencing should not be set aside on that basis.'

J. Douglas McVay, Bocharski's appellate attorney, filed a response to the Attorney General's Office motion to reconsider on Friday. In his response, McVay contends that even if the Superior Court granted the amount of money Cattani said it did, it was still not enough.

"The amount which the State asserts was in fact made available for the mitigation investigation was approximately one-third of the amount which the mitigation specialist testified was "average" for a mitigation investigation in a death penalty case," McVay said in his response.

He also contends that Durand not only did not need to interview several character witnesses but also needed to fly them to Arizona from several other states to have them testify on Bocharski's behalf.

"It is also clear that a variety of pressures worked on Bocharski to prompt his decision to give up mitigation efforts being made on his behalf and 'throw in the towel,'" McVay said in his response. "The state's motion for rehearing should be denied."

Until the Supreme Court decides on this motion, Bocharski will remain on death row, despite requests from his trial lawyers to move him. Hanna and Kelly asked Superior Court Judge William Kiger to remove Bocharski from death row in Florence.

"I think he should be housed differently . . . in a way that is consistent with the Supreme Court opinion," Hanna said.

Kiger did not agree.

"I don't think I can as long as the motion to reconsider is pending," he said.