Originally Published: August 14, 2008 10:43 p.m.
In a unanimous decision, the Arizona Supreme Court on Aug. 8 commuted the sentence of Phillip Alan Bocharski from death to life imprisonment without the possibility of parole.
A jury found Bocharski guilty of burglary in the first degree and first-degree felony murder for the 1994 death of 84-year-old Freeda Brown at a campground outside Congress. Yavapai County Superior Court Judge William Kiger sentenced Bocharski to death in
The Arizona Supreme Court, however, reversed the death sentence and remanded the case back to Kiger for resentencing. The Court concluded that Bocharski's attorneys, Tom Kelly and Ray Hanna, did not receive enough money to collect mitigating evidence necessary to adequately defend their client.
In the meantime, the United States Supreme Court issued a decision that a jury, rather than a judge, must determine if a criminal defendant deserves the death penalty.
At Bocharski's second trial in January 2006, a jury found that the prosecution had proven that Bocharski's murder of Brown involved two of the aggravating factors set out in Arizona statutes: the murder was especially heinous or depraved, and Brown was over the age of 70 years at the time of her death.
In its latest decision, the Supreme Court disagreed with the jury. Chief Justice Ruth V. McGregor, writing for the Court, ruled that the State established only one aggravating factor, the age of the victim, beyond a reasonable doubt.
The State, McGregor continued, did not prove that Bocharski "had a separate intent to mutilate" Brown's body, or that "Bocharski intentionally inflicted violence after he knew or should have known of a fatal occurrence."
Conversely, the Supreme Court determined that the mitigation evidence the jury reviewed at Bocharski's sentencing trial was "substantial."
"When there is a doubt whether the death sentence should be imposed, we will resolve that doubt in favor of a life sentence," McGregor wrote.
When contacted about their reaction to the Supreme Court's opinion, Bocharski's defense attorneys had positive reactions.
"I'm excited. I obviously agree with the decision," Kelly said. "I am in contact with Bocharski frequently and he is excited as well.
"Many criminal defendants present mitigation evidence of a less-than-ideal life, but Bocharski's mitigation evidence is unique in its depth and breadth. The evidence in the record demonstrates severe neglect, as well as almost unimaginable mental, physical, sexual and emotional abuse throughout his childhood. The record also reveals Bocharski's history of alcohol abuse and intoxication at the time of the crime. Finally, he established the impact of execution on his family and his remorse."
Hanna stated simply, "I am pleased."
Disappointed with the ruling, Yavapai County Attorney Sheila Polk said. "The system provides for the independent review by the Supreme Court on death penalty cases, and I have great respect for our criminal justice system."
Kelly said Bocharski received a letter indicating that he will stay on Death Row for quite some time.
"I don't swear the accuracy of this letter, but supposedly there is a transition period," he said. "He has been on Death Row for 12 years, isolated in a small cell. He will be transported to the main prison yard and that could take three years."
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