by Jayson Hawkins
On April 17, 2023, Arizona prisoner Jasper Rushing, 43, was again sentenced to death for the grizzly murder of his cellmate. He was first condemned for the killing in 2015, but the state supreme court tossed that sentence two years later because prosecutors failed to inform the jury that life without parole (LWOP) was an option. That left Rushing still serving his original life sentence for the 2001 murder of his stepfather.
What happened to Rushing’s last victim, Shannon Palmer, is an example of the tragic consequences that can result when police are called to a mental health crisis. A 38-year-old with a history of paranoid schizophrenia, Palmer climbed a power pole during a thunderstorm, for which he was sentenced to three years in prison for criminal damage. On September 10, 2010, as Palmer neared the end of that sentence at the Buckley Unit of the Lewis prison complex in Buckeye, his cellmate, Rushing, told a passing guard:
“I think I just killed my cellie.”
The events are not in dispute: Rushing stuffed a book into a sock and bludgeoned Palmer, then used a shank made from a razor blade to slice Palmer’s throat and sever his penis. As his cellmate bled to death, Rushing waited by the cell door for the guard to pass by.
According to Palmer’s sister, Dawn, he was not on antipsychotic medication when he died – surprising given his long history of delusional behavior; he was once arrested for aiming a gun at imaginary attackers in his backyard and ranted about government officials planting microchips in his leg to control his actions. When off his medication, Palmer was dangerous mainly to himself, but he talked incessantly.
This, according to Rushing, was critical to the murder. “Day after day and night after night of his paranoid bullshit,” Rushing said. “It was almost pitch-black in there because they couldn’t fix the lights. I couldn’t read or think straight. This is what can happen.”
A wrongful death complaint filed in Arizona Superior Court in Maricopa County by Palmer’s mother, Frances Henderson, noted that prison officials were disciplined for improperly housing Palmer and Rushing together in the first place and then failing to move Palmer when he reported fearing for his life. The state Department of Corrections (DOC) settled the case in 2014 for $350,000, which included fees and costs for plaintiff’s attorneys with Ely, Bettini, Ulman & Rosenblatt in Phoenix. See: Henderson v. Ariz., Ariz. Super. (Cty. of Maricopa), Case No. CV2011-016489.
Three years later, in vacating Rushing’s original death sentence for the murder, the state supreme court yielded – finally – to the guidance of the U.S. Supreme Court (SCOTUS), which had decided a nearly identical case 23 years earlier. In Simmons v. South Carolina, 512 U.S. 154 (1994), SCOTUS explicitly held that due process requires advising a sentencing jury in a capital case whether a life sentence instead would leave the defendant ineligible for release.
But Arizona didn’t abide by that ruling, sending Shawn Patrick Lynch to death row in 2012 without letting his jury know that a life sentence would be ineligible for parole. SCOTUS vacated that sentence in 2016 and remanded the case in Lynch v. Arizona, 578 U.S. 613 (2016). The decision came too late for Lynch, who died shortly thereafter in November 2017. But it was cited by the state supreme court in tossing Rushing’s original death sentence for Palmer’s murder. See: State v. Rushing, 404 P.3d 240 (Ariz. 2017).
SCOTUS also cited the case in its February 2023 ruling in Cruz v. Arizona, 143 S. Ct. 650 (2023), when it chided the Arizona high court for failing to follow its own Lynch precedent and overturned the death sentence handed to another Arizona prisoner by a jury that hadn’t been told he could get LWOP instead. The state must now hold a new sentencing for John Montenegro Cruz for killing Tucson policeman Patrick Hardesty while fleeing a hit-and-run investigation in 2003.
At least six other prisoners on the state’s death row will have their sentences revisited after the Cruz decision, on top of two already resentenced to LWOP following the Lynch ruling.
In 2017, the state supreme court cited that precedent when it overturned Joel Escalante-Orozco’s death sentence for raping and killing Maria Garza-Rivera in her Phoenix apartment in 2001. He was resentenced to LWOP in 2019.
The state’s high court again cited Lynch in 2018 when it tossed Bryan Wayne Hulsey’s death sentence for killing Glendale policeman Anthony Holly during a traffic stop in 2007. He was resentenced to LWOP in 2020.
“This whole mess could have been avoided if the Arizona Supreme Court followed the law that has been in place for nearly 30 years,” said Dale Baich, a former assistant federal public defender now on the faculty of Arizona State University’s Sandra Day O’Connor College of Law. “Twice in the past seven years, the state Supreme Court has been admonished and told to follow the law,” he said, but justices instead have been “playing fast and loose” with it.
“Now, those people on death row who were denied the constitutional protection to inform the jury of their parole ineligibility will finally have their day in court,” Baich added.
Meanwhile, with his new sentence, Rushing resumes his place on the state’s death row. See: State v. Rushing, Ariz. Super. (Cty. of Maricopa), Case No. CR2010-007882.
Additional sources: Arizona Republic, Phoenix New Times, USA Today
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