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Wed, Nov. 13

Expert questions mitigation probe in convict's resentencing

PRESCOTT – A former mitigation expert in the case of Philip Bocharski, who faces the death penalty after a trial jury convicted him of felony murder in 1996, filed a pleading under seal that apparently questioned whether parties dealing with the case have done a proper mitigation investigation.

During a hearing, which Yavapai County Superior Court Judge William Kiger conducted in his chambers on Wednesday, he said he had questions about two aspects of the pleading that Mary Durand filed through attorney John Sears – whether parties are investigating mitigation properly and whether Bocharski is satisfied with representation by his attorneys, Thomas Kelly and Ray Hanna.

A jury convicted Bocharski of felony murder in September 1996. According to the court records, in May 1995 Bocharski stabbed 84-year-old Freeda Brown of Congress in the head at least 16 times and stole $500 from her. Kiger sentenced Bocharski to death after the defendant waived his right to a mitigation hearing.

While on death row, his attorneys, Kelly and Hanna, filed an appeal, which reached the Arizona Supreme Court. In May 2001, the highest court in the state concluded that his attorneys did not have enough money to conduct a thorough investigation to collect mitigating evidence (evidence that favors their client) and remanded it to the trial court for re-sentencing.

Kelly objected to Durand's pleading on Wednesday, saying that he doesn't believe that Durand or Sears have any standing in this case.

"I object (to) disclosure of the document," he said, asking the judge to strike it from the record and send it back to Sears.

He said the document also contains attorney-client privileged information.

Kelly said that he didn't see any problems with the case besides the issue involving paying for the case, which has been a problem for the past year.

Bocharski told the judge that he has no problem with how his attorneys have been representing him. He said his only concern was that Durand and his attorneys for quite some time "couldn't get on the same page" and that the case has been dragging on for a while now after the ruling for re-sentencing.

He said his lawyers have been telling him about all the steps they are taking to properly defend him. He also said that he waives his right to be present during future hearings because jail staff always place him in a different cell after the hearing.

"I'm tired of cleaning other people's (mess)," he said.

Deputy Yavapai County Attorney Joe Butner said that not knowing what the context of the affidavit is, he still believes that this is another attempt by Durand to "poison this entire process."

"The pleading should be stricken," he said, agreeing with Kelly. "She has no standing to file any pleading in any death penalty case anyway."

Kiger agreed with both parties and ordered staff to return the sealed pleading back to Sears, who declined to comment.

A few months ago, Kelly and Hanna told Kiger about continuing financial issues they have been dealing with regarding two experts they hired to gather mitigating evidence necessary for them to proceed with the penalty phase of the trial.

Dan DeRienzo, then-Yavapai County public defender, said at the time that he paid more than $130,000 in expert fees in the case. Previously, Hanna estimated that Durand likely will need between $50,000 and $100,000 to complete the investigation because witnesses she needs to interview are spread out across the country.

Since then, Durand has withdrawn from helping the defense collect mitigating information and that job is now in the hands of mitigating expert Mary Goody. (See related story, this page.)

During the hearing on Wednesday, Hanna said that he asked Durand to turn over her files to Goody. The other expert who worked with Durand already has sent his files, he said.

It is unclear how much money the county has paid so far to finance this case.

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