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Tue, Dec. 10

Death penalty legislation prompts local reactions

PHOENIX – With the new death penalty legislation prompted by a recent U.S. Supreme Court decision in the governor's hands, jurors will likely gain the power to sentence some convicted murders.

Both the state Senate and House of Representatives have approved a bill that, if Gov. Jane Hull signs it, will go beyond the high court's mandated changes to the capital punishment system.

In June, the Supreme Court ruled on Timothy Ring v. Arizona and determined that the death penalty statute in several states, including Arizona, violates a defendant's Sixth Amendment right to a jury of one's peers.

The decision gives juries, as opposed to judges, the task of determining whether or not sufficient aggravating factors exist to justify the death penalty for some convicted murderers.

Currently, juries do not consider the possible punishments before delivering a verdict. Now, based on the ruling, lawyers will have to present both aggravating and mitigating evidence to future capital-case juries. The law requires juries to find at least one of 10 aggravating factors, such as the defendant having committed the crime for pecuniary gain or that the act itself was heinous and depraved, in order to justify the death penalty.

But if Hull signs the current bill, which would become effective immediately because of an emergency clause in the bill, juries in capital cases also will have to decide whether to sentence the defendant to death if they find sufficient aggravating circumstances.

Governor's office spokeswoman Francie Noyes said Hull could sign the bill today.

"Barring any unforeseen surprises, she expects to sign it," Noyes said.

Deputy Yavapai County Attorney Dennis McGrane said that by requiring the jury to impose the death penalty the Legislature is complying with the spirit of the high court's decision to "give the jury more responsibility."

Yavapai County Public Defender Dan DeRienzo said that responsibility could come at a high price.

"I think they (the Legislature) rushed into this … they should have spent more time … researching the financial impacts," DeRienzo said.

He said the bill's provisions for multiple replacements for hung juries could clog the court calendar and could become very costly.

He added that the cost for mitigation research also likely will increase because the defense will have to begin preparing to present mitigating evidence while preparing for the case. Currently, lawyers complete that research, which often involves hiring a mitigation expert, after a jury has convicted the defendant and before sentencing.

"In case there is a finding of guilt … the mitigation expert will have to be ready to testify," DeRienzo said.

He added that mitigation research for capital punishment cases can cost around $100,000.

"And we might not even need it (if the defendant is not guilty)," he said.

McGrane said he does not think the research efforts will be in vain.

"The bottom line is we don't ask for the death penalty in cases that don't deserve the death penalty," he said.

McGrane added that he thinks if the new process becomes law, the costs to try a case will not increase dramatically because the mitigation research will be complete by trial time. As a result, lawyers will be able to resolve cases faster.

"It will save court time, judge time and lawyer time," he said.

DeRienzo said the bill could have more far-reaching and possibly time-consuming effects. Because the Supreme Court decision deemed the current sentencing process unconstitutional, it could prompt all death row inmates to appeal their sentences – which could jam up court calendars.

Arizona Office of the Courts spokesman Richard Travis said the high court's decision likely will affect death penalty defendants only prior to sentencing and those who have not exhausted the direct appeals process. Of the 127 inmates on death row in Arizona, at least 29 inmates still can exercise their direct appeal rights. None of those cases involve inmates from Yavapai County.

Travis said if the high court intends for a ruling to be retroactive, it usually stated that specifically in the written opinion.

"The U.S. Supreme Court did not say that it applies retroactively," he said.

Travis added that if Hull signs the bill it will take time to perfect the process.

"There will be appeals and case law developed to further refine the process," he said.

Contact C. Murphy Hébert at

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