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Tue, Oct. 22

Death penalty ruling affects local cases

PRESCOTT – Monday's Supreme Court ruling that overturned death penalty statutes in five states could result in the re-sentencing of more than 120 inmates on death row in Arizona.

In a 7-2 ruling in Timothy Ring v. Arizona, the court ruled that the current death penalty statute 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 convicted murderers.

Until now in Arizona, juries have not considered the possible punishments before delivering a verdict. Now, 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 committed the crime for pecuniary (monetary) gain or that the act itself was heinous and depraved, to justify the death penalty.

The ruling could call into question the validity of all the death sentences in the state – including four from Yavapai County.

"There's probably going to be litigation in every death penalty case," said Assistant Federal Defense Attorney Dale Baich. "It's going to have a tremendous impact."

Yavapai County Public Defender Dan DeRienzo agrees with Baich that the ruling could have far-reaching effects. He said Rule 32 of Criminal Procedures provides a means for death row inmates to oppose their sentences. The rule states that defendants have grounds for post-conviction relief if "the conviction or the sentence was in violation of the Constitution of the United States or of the State of Arizona."

Because the ruling declared that it is unconstitutional for judges to determine if aggravation and mitigating factors exist in a death penalty case, DeRienzo argued that the resulting sentences are moot, and that all current death row residents could contend their sentences.

Yavapai County Attorney Sheila Polk said she does not believe the ruling will be retroactive. Traditionally, if justices intend for a ruling to be retroactive, they indicate that intent specifically in the opinion. The opinion does not make any reference to the retroactive application of the ruling.

The chief counsel of capital litigation in the Arizona Attorney General's Office, Kent Cattani, also said that the ruling will not be retroactive.

He added that prosecutors can argue against the Rule 32 challenges because another section of the same rule indicates that in order for the court to grant post-conviction relief, the attorneys must show that the change in the law likely would have overturned the defendant's conviction or sentence.

Cattani said the ruling does not call into question the actual outcome of the cases. He said he believes that the juries, like the judges, would have found aggravating factors that would justify the death penalty in all of the Arizona death penalty cases – so the outcome would not have been different.

"Even if there is a constitutional error there is no relief … because the change has to relate to something being fundamentally unfair."

He said of the 127 death row inmates in Arizona, the ruling will directly affect only the 29 who are still able to exercise their direct appeal rights. None of those cases involve inmates from Yavapai County.

"In theory, it may not affect any of those cases in Yavapai County," he said.

But the ruling has already influenced local cases. Defense attorneys Ray Hanna and Tom Kelly represent Phil Bocharski, the Congress man a jury convicted of killing an elderly woman for monetary gain. Hanna and Kelly filed a motion requesting a hearing "to determine if the death penalty is a sentencing option available to the court" the day the Supreme Court ruling came down.

Yavapai County Superior Court Judge William Kiger sentenced Bocharski to death, but the Arizona Supreme Court remanded the case back to the trial court for re-sentencing after determining that the defense attorneys did not have the opportunity to properly collect and present mitigating evidence.

The ruling also immediately affected Homer Roseberry's trial. Roseberry, an Indiana man facing the death penalty for his alleged involvement in the death of Fred Fottler, was to go to trial today. Kiger vacated the trial date Tuesday, after Deputy County Attorney Steve Young said that the state still wished to pursue the death penalty in the case, despite the recent high court decision.

"I believe it would be a miscarriage of justice all around … to proceed to trial," Kiger said.

Both Young and Roseberry's defense attorneys, Dave Stoller and Hanna, agreed with Kiger's decision.

The local effects illustrate another issue the ruling creates: How to handle pending death penalty cases if the current procedures are unconstitutional? That is a question the Arizona Legislature will have to answer.

"The Legislature has to scramble to come up with a constitutional death penalty statute," DeRienzo said.

The Legislature will likely meet in special session to devise a new procedure, but that could take time.

"All of this stuff is going to be up in the air for a while," DeRienzo said.

Stoller echoed DeRienzo's sentiments. "It's almost too early for us to do anything," he said. "We have no ground rules."

Until then, Arizona Attorney General Janet Napolitano has stopped all pending death penalty cases.

Contact C. Murphy Hébert at

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